Federal Register Vol. 83, No.82,

Federal Register Volume 83, Issue 82 (April 27, 2018)

Page Range18399-18726
FR Document

83_FR_82
Current View
Page and SubjectPDF
83 FR 18587 - Sunshine Act MeetingsPDF
83 FR 18441 - Managed CarePDF
83 FR 18454 - Foreign Acquisition; Solicitation Provisions and Contract ClausesPDF
83 FR 18436 - Control of Emissions From New and In-Use Highway Vehicles and EnginesPDF
83 FR 18541 - Sunshine Act Meeting NoticePDF
83 FR 18617 - Delegation of Authority; Chief Operating Officer Functions Delegated to Chief of StaffPDF
83 FR 18584 - 60-Day Notice of Proposed Information Collection: Human Trafficking Housing PartnershipPDF
83 FR 18553 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 0155.13); Comment RequestPDF
83 FR 18556 - TSCA Alternative Testing Methods Draft Strategic Plan; Extension of Comment PeriodPDF
83 FR 18557 - Proposed Information Collection Request; Comment Request; Mobile Air Conditioner Retrofitting Program (Renewal)PDF
83 FR 18585 - 60-Day Notice of Proposed Information Collection: Indian Community Development Block GrantPDF
83 FR 18586 - 60-Day Notice of Proposed Information Collection: Manufactured Housing Installation Program Reporting RequirementsPDF
83 FR 18558 - Planning for Natural Disaster Debris and Related GuidancePDF
83 FR 18555 - Proposed Issuance of NPDES General Permit for Hydroelectric Facilities Within the State of Idaho (IDG360000)PDF
83 FR 18587 - 60-Day Notice of Proposed Information Collection: Single Family Premium Collection Subsystem-Periodic (SFPCS)PDF
83 FR 18621 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Renewal, Rotorcraft External Load Operator Certificate ApplicationPDF
83 FR 18419 - Definitions and Selection Criteria That Apply to Direct Grant ProgramsPDF
83 FR 18502 - Proposed Information Collection; Comment Request; 2020 Census New Construction ProgramPDF
83 FR 18620 - Agency Information Collection Activities: Requests for Comments; Clearance of New Approval of Information Collection: FAA Aircraft Noise Complaint and Inquiry System (FAA Noise Portal)PDF
83 FR 18544 - Privacy Act of 1974; System of RecordsPDF
83 FR 18560 - Pleading Cycle Established for Comment on Applications for State Certification for the Provision of Telecommunications Relay ServicePDF
83 FR 18588 - Incidental Take Permit Applications Received To Participate in the American Burying-Beetle Amended Oil and Gas Industry Conservation Plan in OklahomaPDF
83 FR 18502 - Notice of Public Meeting of the Nevada State Advisory CommitteePDF
83 FR 18501 - Notice of Public Meeting of the Ohio Advisory Committee to the U.S. Commission on Civil RightsPDF
83 FR 18537 - Submission for OMB Review; Comment Request; “National Medal of Technology and Innovation Nomination Application”PDF
83 FR 18565 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 18574 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Voluntary Partner Surveys To Implement Executive Order 12862 in the Health Resources and Services Administration, OMB No. 0915-0212-ExtensionPDF
83 FR 18540 - Procurement List; DeletionsPDF
83 FR 18540 - Procurement List; Proposed Additions and DeletionsPDF
83 FR 18618 - Kasgro Rail Corp.-Lease and Operation Exemption-KJ Rail Logistics LLCPDF
83 FR 18592 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
83 FR 18589 - Final Environmental Impact Statement, Pure Water San Diego Program, North City Project; San Diego County, CaliforniaPDF
83 FR 18455 - Training, Qualification, and Oversight for Safety-Related Railroad EmployeesPDF
83 FR 18534 - Proposed Information Collection; Comment Request; Pacific Islands Logbook Family of FormsPDF
83 FR 18533 - Submission for OMB Review; Comment RequestPDF
83 FR 18536 - Submission for OMB Review; Comment RequestPDF
83 FR 18534 - Submission for OMB Review; Comment RequestPDF
83 FR 18597 - Submission for OMB Review, Comment Request, Proposed Collection: IMLS Grants to States Program “State Program Reporting System (SPR) FormsPDF
83 FR 18409 - Alabama Regulatory ProgramPDF
83 FR 18555 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; National Volatile Organic Compound Emission Standards for Architectural Coatings (Renewal)PDF
83 FR 18399 - Federal Employees Health Benefits Program FlexibilitiesPDF
83 FR 18560 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (OMB No. 3064-0162)PDF
83 FR 18506 - National Sea Grant Advisory Board (NSGAB); Public Meeting of the National Sea Grant Advisory BoardPDF
83 FR 18536 - Science Advisory Board (SAB); Public Meeting of the NOAA Science Advisory BoardPDF
83 FR 18535 - New England Fishery Management Council; Public MeetingPDF
83 FR 18533 - New England Fishery Management Council; Public MeetingPDF
83 FR 18501 - Submission for OMB Review; Comment RequestPDF
83 FR 18569 - The Index of Legally Marketed Unapproved New Animal Drugs for Minor Species; Guidance for Industry; AvailabilityPDF
83 FR 18535 - Gulf of Mexico Fishery Management Council; Public MeetingsPDF
83 FR 18622 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 18626 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 18633 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 18638 - Qualification of Drivers; Exemption Applications; DiabetesPDF
83 FR 18640 - Agency Information Collection Activities; Request for Comments; Revision and Renewal of an Approved Information Collection: Medical Qualification RequirementsPDF
83 FR 18618 - Advisory Committee on International Economic Policy; Notice of Open MeetingPDF
83 FR 18624 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
83 FR 18643 - Qualification of Drivers; Exemption Applications; DiabetesPDF
83 FR 18644 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 18637 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 18648 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 18636 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 18634 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 18647 - Qualification of Drivers; Exemption Applications; DiabetesPDF
83 FR 18627 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 18623 - Qualification of Drivers; Exemption Applications; HearingPDF
83 FR 18616 - Reporting and Recordkeeping Requirements Under OMB reviewPDF
83 FR 18651 - Notice of Funding Opportunity for the Department of Transportation's National Infrastructure Investments Under the Consolidated Appropriations Act, 2018PDF
83 FR 18580 - Certificate of Alternative Compliance for the Gunderson Marine LLC Hull 116PDF
83 FR 18580 - Certificate of Alternative Compliance for the Gunderson Marine LLC Hull 117PDF
83 FR 18571 - Clinical Trial Imaging Endpoint Process Standards; Guidance for Industry; AvailabilityPDF
83 FR 18576 - Submission for OMB Review; 30-Day Comment RequestPDF
83 FR 18575 - Proposed Collection; 60-Day Comment Request Data and Specimen Hub (DASH) (Eunice Kennedy Shriver National Institute of Child Health and Human Development)PDF
83 FR 18574 - Notice of Diabetes Mellitus Interagency Coordinating Committee MeetingPDF
83 FR 18542 - Notice of Intent To Grant Exclusive Patent License to 4D Tech Solutions, Inc., Morgantown, WVPDF
83 FR 18542 - Inland Waterways Users Board Meeting NoticePDF
83 FR 18592 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Bureau of Labor Statistics Occupational Safety and Health Statistics Cooperative Agreement Application PackagePDF
83 FR 18596 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Survey of Occupational Injuries and IllnessesPDF
83 FR 18566 - Information Collection; Progress Payments (SF-1443)PDF
83 FR 18568 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 18507 - Programmatic Environmental Impact Statement for the Marine Mammal Health and Stranding Response ProgramPDF
83 FR 18664 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Low-Energy Geophysical Survey in the Northwest Atlantic OceanPDF
83 FR 18595 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Coverage of Certain Preventive Services Under the Affordable Care Act-Private SectorPDF
83 FR 18507 - Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to the South Basin Improvements Project at the San Francisco Ferry TerminalPDF
83 FR 18454 - Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband ExperimentsPDF
83 FR 18594 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Labor Market Information Cooperative AgreementPDF
83 FR 18593 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Servicing Multi-Piece and Single Piece Rim Wheels StandardPDF
83 FR 18591 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New CollectionPDF
83 FR 18543 - Notice of Intent To Prepare an Environmental Impact Statement/Overseas Environmental Impact Statement for Point Mugu Sea Range and To Announce Public Scoping MeetingsPDF
83 FR 18617 - Notice of Public MeetingPDF
83 FR 18582 - Agency Information Collection Activities: Certificate of OriginPDF
83 FR 18581 - Agency Information Collection Activities: Free Trade AgreementsPDF
83 FR 18591 - Agency Information Collection: Submission to OMB for Review and ApprovalPDF
83 FR 18582 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Nonimmigrant Petition Based on Blanket L PetitionPDF
83 FR 18412 - Anchorage Grounds; Galveston Harbor, Bolivar Roads Channel, Galveston, TexasPDF
83 FR 18583 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection; Request for Reduced FeePDF
83 FR 18491 - Anchorages; Captain of the Port Puget Sound Zone, WAPDF
83 FR 18567 - Availability of Vessel Sanitation Program (VSP) Operations Manual and VSP Construction GuidelinesPDF
83 FR 18567 - Vessel Sanitation Program: Annual Program Status Meeting; Request for CommentPDF
83 FR 18618 - Initiation of Country Practice Reviews of India, Indonesia, and KazakhstanPDF
83 FR 18415 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Boca Raton, FLPDF
83 FR 18414 - Drawbridge Operation Regulation; St. Johns River, Putnam County, FLPDF
83 FR 18556 - Availability of a Programmatic Environmental Assessment (PEA) and Finding of No Significant Impact (FONSI)PDF
83 FR 18554 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 18598 - Agency Information Collection Activities: Comment RequestPDF
83 FR 18547 - CITGO Petroleum Corporation v. Colonial Pipeline Company; Notice of ComplaintPDF
83 FR 18552 - Consumers Energy Company, Interstate Power and Light Company, Midwest Municipal Transmission Group, Missouri River Energy Services, Southern Minnesota Municipal Power Agency, WPPI Energy v. International Transmission Company, ITC Midwest, LLC, Michigan Electric Transmission Company; Notice of ComplaintPDF
83 FR 18549 - Combined Notice of FilingsPDF
83 FR 18547 - Combined Notice of Filings #1PDF
83 FR 18570 - Multiple Function Device Products: Policy and Considerations; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 18590 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 18589 - Laminated Woven Sacks from VietnamPDF
83 FR 18491 - Veterans' Group Life Insurance Increased CoveragePDF
83 FR 18421 - Eligibility for Supplemental Service-Disabled Veterans' InsurancePDF
83 FR 18573 - Advisory Committee on Heritable Disorders in Newborns and ChildrenPDF
83 FR 18603 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Relating to Listing and Trading of the Direxion Daily Bitcoin Bear 1X Shares, Direxion Daily Bitcoin 1.25X Bull Shares, Direxion Daily Bitcoin 1.5X Bull Shares, Direxion Daily Bitcoin 2X Bull Shares and Direxion Daily Bitcoin 2X Bear Shares Under NYSE Arca Rule 8.200-EPDF
83 FR 18612 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Concerning the VIX Large Trade Discount ProgramPDF
83 FR 18614 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 602, Continuing Market Maker RegistrationPDF
83 FR 18600 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Rule 4120 To Correct a CitationPDF
83 FR 18605 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change in Connection With the Migration of SPX Options From the Hybrid 3.0 System to the Hybrid Trading SystemPDF
83 FR 18602 - The Swiss Helvetia Fund, Inc., et al.PDF
83 FR 18422 - Update to Product ListPDF
83 FR 18579 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 18579 - Center for Scientific Review; Notice of Closed MeetingPDF
83 FR 18541 - Notice of Prehearing ConferencePDF
83 FR 18415 - Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie ZonePDF
83 FR 18562 - Proposed Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 18564 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 18401 - IFR Altitudes; Miscellaneous AmendmentsPDF
83 FR 18551 - Notice of Filing: Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance EventsPDF
83 FR 18549 - Notice of Intent To Prepare an Environmental Assessment for the Planned SPLNG Third Berth Expansion Project, Request for Comments on Environmental Issues: Sabine Pass LNG, L.P.PDF
83 FR 18552 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; NS Power Energy Marketing Inc.PDF
83 FR 18551 - Combined Notice of FilingsPDF
83 FR 18548 - Combined Notice of Filings #1PDF
83 FR 18504 - National Cybersecurity Center of Excellence (NCCoE) Data Integrity Building BlockPDF
83 FR 18537 - Post Registration (Trademark Processing)PDF
83 FR 18496 - Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to the Permitting RulesPDF
83 FR 18429 - Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate MatterPDF
83 FR 18499 - Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate MatterPDF
83 FR 18483 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 18488 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
83 FR 18485 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 18441 - Auction of FM Translator Construction Permits Scheduled for June 21, 2018; Notification of Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 83PDF
83 FR 18494 - Approval and Promulgation of Air Quality Implementation Plans; State of Montana; Revisions to PSD Permitting RulesPDF
83 FR 18462 - Cranberries Grown in States of Massachusetts, et al.; Establishment of 2018-19 Seasonal Volume RegulationPDF
83 FR 18460 - Cranberries Grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York; Proposed Amendment to Marketing OrderPDF
83 FR 18649 - Request for Information: Improving Prehospital Trauma CarePDF
83 FR 18436 - New York: Incorporation by Reference of State Hazardous Waste Management ProgramPDF
83 FR 18499 - New York: Incorporation by Reference of State Hazardous Waste Management ProgramPDF
83 FR 18468 - Small Business Size Standards: Revised Size Standards MethodologyPDF
83 FR 18431 - Protection of Stratospheric Ozone: Notification of Guidance and a Stakeholder Meeting Concerning the Significant New Alternatives Policy (SNAP) ProgramPDF
83 FR 18698 - Endangered and Threatened Wildlife and Plants; Removing Textual Descriptions of Critical Habitat Boundaries for Mammals, Birds, Amphibians, Fishes, Clams, Snails, Arachnids, Crustaceans, and InsectsPDF

Issue

83 82 Friday, April 27, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Cranberries Grown in States of Massachusetts, et al.: Establishment of 2018-19 Seasonal Volume Regulation, 18462-18468 2018-08528 Cranberries Grown in States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in State of New York: Marketing Order; Proposed Amendment, 18460-18462 2018-08526 Agriculture Agriculture Department See

Agricultural Marketing Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18501 2018-08927
Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2020 Census New Construction Program, 18502-18504 2018-08964 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Vessel Sanitation Program, 18567 2018-08869 Vessel Sanitation Program Operations Manual; Vessel Sanitation Program Construction Guidelines, 18567-18568 2018-08870 Centers Medicare Centers for Medicare & Medicaid Services RULES Managed Care; CFR Correction, 18441 2018-09060 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18568-18569 2018-08893 Civil Rights Civil Rights Commission NOTICES Meetings: Nevada State Advisory Committee, 18502 2018-08954 Ohio Advisory Committee, 18501-18502 2018-08953 Coast Guard Coast Guard RULES Anchorage Grounds: Galveston Harbor, Bolivar Roads Channel, Galveston, TX, 18412-18414 2018-08873 Drawbridge Operations: Atlantic Intracoastal Waterway, Boca Raton, FL, 18415 2018-08867 St. Johns River, Putnam County, FL, 18414-18415 2018-08866 Safety Zones: Recurring Safety Zones in Captain of the Port Sault Sainte Marie Zone, 18415-18419 2018-08840 PROPOSED RULES Anchorages: Captain of the Port Puget Sound Zone, WA; Withdrawal, 18491 2018-08871 NOTICES Certificate of Alternative Compliance for Gunderson Marine LLC Hull 116, 18580 2018-08905 Certificates of Alternative Compliance: Gunderson Marine LLC Hull 117, 18580-18581 2018-08904 Commerce Commerce Department See

Census Bureau

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 18540-18541 2018-08946 2018-08947 Consumer Product Consumer Product Safety Commission NOTICES Meetings: Prehearing Conference, 18541 2018-08841 Meetings; Sunshine Act, 18541 2018-09007 Defense Acquisition Defense Acquisition Regulations System RULES Foreign Acquisition; Solicitation Provisions and Contract Clauses; CFR Correction, 18454 2018-09059 Defense Department Defense Department See

Defense Acquisition Regulations System

See

Engineers Corps

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Progress Payments, 18566-18567 2018-08894
Education Department Education Department RULES Definitions and Selection Criteria that Apply to Direct Grant Programs, 18419-18421 2018-08965 NOTICES Privacy Act; Systems of Records, 18544-18547 2018-08962 Energy Department Energy Department See

Federal Energy Regulatory Commission

Engineers Engineers Corps NOTICES Exclusive Patent License Approvals: 4D Tech Solutions, Inc., Morgantown, WV, 18542 2018-08898 Meetings: Inland Waterways Users Board, 18542-18543 2018-08897 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Texas; Control of Air Pollution from Visible Emissions and Particulate Matter, 18429-18431 2018-08662 Control of Emissions From New and In-Use Highway Vehicles and Engines; CFR Correction, 18436 2018-09058 Guidance: Protection of Stratospheric Ozone; Stakeholder Meeting Concerning Significant New Alternatives Policy Program, 18431-18436 2018-08310 Incorporation by Reference of State Hazardous Waste Management Program: New York, 18436-18441 2018-08431 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Montana; Revisions to Prevention of Significant Deterioration Permitting Rules, 18494-18496 2018-08624 South Dakota; Revisions to the Permitting Rules, 18496-18499 2018-08676 Texas; Control of Air Pollution from Visible Emissions and Particulate Matter, 18499 2018-08661 Incorporation by Reference of State Hazardous Waste Management Program: New York, 18499-18500 2018-08429 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18553-18554 2018-08975 National Volatile Organic Compound Emission Standards for Architectural Coatings (Renewal), 18555-18556 2018-08934 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mobile Air Conditioner Retrofitting Program, 18557-18558 2018-08973 Environmental Assessments; Availability, etc.: Water Infrastructure Finance and Innovation Act, 18556-18557 2018-08865 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 18554-18555 2018-08864 Guidance: Planning for Natural Disaster Debris and Related Guidance, 18558-18560 2018-08969 Meetings: Toxic Substances Control Act Alternative Testing Methods Draft Strategic Plan, 18556 2018-08974 National Pollutant Discharge Elimination System General Permits: Hydroelectric Facilities within State of Idaho, 18555 2018-08968 Federal Aviation Federal Aviation Administration RULES IFR Altitudes; Miscellaneous Amendments, 18401-18409 2018-08837 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 18483-18488 2018-08649 2018-08653 Fokker Services B.V. Airplanes, 18488-18490 2018-08650 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aircraft Noise Complaint and Inquiry System (FAA Noise Portal), 18620-18621 2018-08963 Renewal, Rotorcraft External Load Operator Certificate Application, 18621-18622 2018-08966 Federal Bureau Federal Bureau of Investigation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18591 2018-08882 Federal Communications Federal Communications Commission RULES Auction of FM Translator Construction Permits: Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 83, 18441-18454 2018-08635 Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband Experiments, 18454 2018-08887 NOTICES Pleading Cycle Established for Comment on Applications for State Certification for Provision of Telecommunications Relay Service, 18560 2018-08958 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18560-18562 2018-08932 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 18547-18549, 18551-18552 2018-08832 2018-08833 2018-08859 2018-08860 Complaints: CITGO Petroleum Corp. v. Colonial Pipeline Co., 18547-18548 2018-08862 Consumers Energy Co., Interstate Power and Light Co., Midwest Municipal Transmission Group,Missouri River Energy Services, Southern Minnesota Municipal Power Agency, WPPI Energy v. International Transmission Co., ITC Midwest, LLC, Michigan Electric Transmission Co., 18552 2018-08861 Environmental Assessments; Availability, etc.: Sabine Pass LNG, L.P.; Sabine Pass Liquefied Natural Gas Third Berth Expansion Project, 18549-18551 2018-08835 Filings: Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events, 18551 2018-08836 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: NS Power Energy Marketing Inc., 18552-18553 2018-08834 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Medical Qualification Requirements, 18640-18643 2018-08919 Qualification of Drivers; Exemption Applications: Diabetes, 18638-18640, 18643-18644, 18647-18648 2018-08910 2018-08916 2018-08920 Diabetes Mellitus, 18626-18634, 18636-18638 2018-08909 2018-08912 2018-08914 2018-08922 2018-08923 Epilepsy and Seizure Disorders, 18624-18626 2018-08917 Hearing, 18623-18624 2018-08908 Vision, 18622-18623, 18634-18635, 18644-18649 2018-08911 2018-08913 2018-08915 2018-08924 Federal Railroad Federal Railroad Administration RULES Training, Qualification, and Oversight for Safety-Related Railroad Employees, 18455-18459 2018-08941 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18562-18565 2018-08838 2018-08839 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 18565-18566 2018-08950 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Removing Textual Descriptions of Critical Habitat Boundaries for Mammals, Birds, Amphibians, Fishes, Clams, Snails, Arachnids, Crustaceans, and Insects, 18698-18726 2018-07606 NOTICES Incidental Take Permits; Applications: American Burying-Beetle Amended Oil and Gas Industry Conservation Plan in Oklahoma, 18588-18589 2018-08955 Food and Drug Food and Drug Administration NOTICES Guidance: Clinical Trial Imaging Endpoint Process Standards, 18571-18573 2018-08903 Index of Legally Marketed Unapproved New Animal Drugs for Minor Species, 18569-18570 2018-08926 Multiple Function Device Products: Policy and Considerations, 18570-18571 2018-08858 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Progress Payments, 18566-18567 2018-08894 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Voluntary Partner Surveys to Implement Executive Order 12862 in Health Resources and Services Administration, 18574 2018-08949 Meetings: Advisory Committee on Heritable Disorders in Newborns and Children, 18573 2018-08853 Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Human Trafficking Housing Partnership, 18584-18585 2018-08976 Indian Community Development Block Grant, 18585-18586 2018-08972 Manufactured Housing Installation Program Reporting Requirements, 18586-18587 2018-08970 Single Family Premium Collection Subsystem—Periodic, 18587 2018-08967 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Program Reporting System Forms, 18597-18598 2018-08936 Inter-American Inter-American Foundation NOTICES Meetings; Sunshine Act, 18587-18588 2018-09063 Interior Interior Department See

Fish and Wildlife Service

See

Reclamation Bureau

See

Surface Mining Reclamation and Enforcement Office

International Trade Com International Trade Commission NOTICES Complaints: Certain Submarine Telecommunication Systems and Components Thereof, 18590-18591 2018-08857 Investigations; Determinations, Modifications, and Rulings, etc.: Laminated Woven Sacks from Vietnam, 18589-18590 2018-08856 Justice Department Justice Department See

Federal Bureau of Investigation

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18591-18592 2018-08876 Proposed Consent Decrees: Clean Air Act, 18592 2018-08944
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bureau of Labor Statistics Occupational Safety and Health Statistics Cooperative Agreement Application Package, 18592-18593 2018-08896 Coverage of Certain Preventive Services under Affordable Care Act—Private Sector, 18595-18596 2018-08890 Labor Market Information Cooperative Agreement, 18594-18595 2018-08885 Servicing Multi-Piece and Single Piece Rim Wheels Standard, 18593-18594 2018-08884 Survey of Occupational Injuries and Illnesses, 18596-18597 2018-08895 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Progress Payments, 18566-18567 2018-08894 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Highway National Highway Traffic Safety Administration NOTICES Requests for Information: Improving Prehospital Trauma Care, 18649-18651 2018-08504 National Institute National Institute of Standards and Technology NOTICES National Cybersecurity Center of Excellence Data Integrity Building Block, 18504-18506 2018-08829 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: CTEP Branch and Support Contracts Forms and Surveys, 18576-18579 2018-08902 Data and Specimen Hub, 18575-18576 2018-08901 Meetings: Center for Scientific Review, 18579-18580 2018-08842 2018-08843 Diabetes Mellitus Interagency Coordinating Committee, 18574-18575 2018-08900 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18533-18534, 18536-18537 2018-08937 2018-08938 2018-08939 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pacific Islands Logbook Family of Forms, 18534-18535 2018-08940 Environmental Impact Statements; Availability, etc.: Marine Mammal Health and Stranding Response Program, 18507 2018-08892 Meetings: Gulf of Mexico Fishery Management Council, 18535 2018-08925 National Sea Grant Advisory Board, 18506-18507 2018-08931 New England Fishery Management Council, 18533-18536 2018-08928 2018-08929 Science Advisory Board, 18536 2018-08930 Takes of Marine Mammals Incidental to Specified Activities: Low-Energy Geophysical Survey in Northwest Atlantic Ocean, 18664-18695 2018-08891 South Basin Improvements Project, San Francisco Ferry Terminal, 18507-18533 2018-08888 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18598-18600 2018-08863 Navy Navy Department NOTICES Environmental Impact Statements; Availability, etc.: Point Mugu Sea Range, 18543-18544 2018-08881 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Medal of Technology and Innovation Nomination Application, 18537 2018-08952 Post Registration (Trademark Processing), 18537-18539 2018-08738 Personnel Personnel Management Office RULES Federal Employees Health Benefits Program Flexibilities, 18399-18401 2018-08933 Postal Regulatory Postal Regulatory Commission RULES Update to Product List, 18422-18429 2018-08845 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Pure Water San Diego Program, North City Project; San Diego County, CA, 18589 2018-08942 Securities Securities and Exchange Commission NOTICES Applications: Swiss Helvetia Fund, Inc., et al., 18602 2018-08846 Self-Regulatory Organizations; Proposed Rule Changes: Cboe Exchange, Inc., 18605-18614 2018-08848 2018-08851 MIAX PEARL, LLC, 18614-18616 2018-08850 Nasdaq Stock Market, LLC, 18600-18601 2018-08849 NYSE Arca, Inc., 18603-18605 2018-08852 Small Business Small Business Administration PROPOSED RULES Small Business Size Standards: Revised Size Standards Methodology, 18468-18483 2018-08418 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18616-18617 2018-08907 Delegation of Authority: Chief Operating Officer Functions Delegated to Chief of Staff, 18617 2018-08978 State Department State Department NOTICES Meetings: Advisory Committee on International Economic Policy, 18618 2018-08918 Preparation for Forty-Second Session of International Maritime Organization's Facilitation Committee, 18617 2018-08880 Surface Mining Surface Mining Reclamation and Enforcement Office RULES Alabama Regulatory Program, 18409-18412 2018-08935 Surface Transportation Surface Transportation Board NOTICES Lease and Operation Exemptions: Kasgro Rail Corp.; KJ Rail Logistics LLC, 18618 2018-08945 Trade Representative Trade Representative, Office of United States NOTICES Country Practice Reviews: India, Indonesia, and Kazakhstan, 18618-18620 2018-08868 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

NOTICES Funding Availability: National Infrastructure Investments under the Consolidated Appropriations Act, 2018, 18651-18661 2018-08906
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83 82 Friday, April 27, 2018 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206-AN54 Federal Employees Health Benefits Program Flexibilities AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

To correct an asymmetry in the insurance market for Federal employees and annuitants, this Final regulation provides all Federal Employees Health Benefits (FEHB) Program carriers the ability to offer the same number and types of plan options. Currently, OPM regulations defining minimum standards for health benefits plans allow certain plans to have two options and a high deductible health plan, while other plans may have three options of any type or two options and a high deductible health plan, creating an asymmetry between the potential offerings of health benefits plans. We have revised the regulations so all health benefits plans are able to offer three options or two options and a high deductible health plan. This final rule will give FEHB enrollees more choices in selecting a health plan that best meets their family's health care needs.

DATES:

This rule is effective April 27, 2018.

FOR FURTHER INFORMATION CONTACT:

Michael W. Kaszynski, Senior Policy Analyst, at [email protected] or (202) 606-0004.

SUPPLEMENTARY INFORMATION:

To correct an asymmetry in the insurance market for Federal employees and annuitants, this Final regulation provides all Federal Employees Health Benefits (FEHB) Program carriers the ability to offer the same number and types of plan options. Currently, OPM regulations at 5 CFR 890.201 on minimum standards for health benefits plans allow plan types under 5 U.S.C. 8903(1) and (2) to have two options and a high deductible health plan, but plan types under 5 U.S.C. 8903(3) and (4) may have three options or two options and a high deductible health plan, creating an asymmetry between the potential offerings of types of health benefits plans. We have revised the regulations so all health benefits plans under 5 U.S.C. 8903 have the language that includes three options or two options and a high deductible health plan. This will give enrollees additional options when considering which health plan is best suited for them, for example, using a variety of variables such as premium, co-pay, and deductible costs, provider networks, and referral and pre-authorization policies. Since all health plans must compete annually for enrollees, the availability of additional options could create an incentive for plans to keep premiums as low as possible to attract enrollees. This regulation fully aligns with the Administration's goal of promoting quality and affordable health plan choices.

Response to Comments

On December 19, 2017, OPM published this as a proposed rule in the Federal Register (82 FR 60126) and the 60 day comment period ended on February 20, 2018. OPM received comments from a citizen, several FEHB carriers, and a bankers' association.

All the commenters were supportive of the regulation's goal to increase choice, competition and affordability. One FEHB carrier, the citizen and the bankers' association expressed agreement with the proposed regulatory change, while all commenting carriers supported OPM's stated purpose. However, some of the commenting carriers expressed the concern that the proposed adjustment to section § 890.201 will not increase competition in the FEHB Program because the regulatory change only affects the offerings of the Service Benefit Plan (SBP) carrier [since there is no current carrier contracted to offer the Indemnity Benefit Plan (IBP)]. The carriers noted that the Service Benefit Plan currently provides health insurance coverage to a significant portion of FEHB enrollees, dominating the FEHB insurance market. Two of the carriers proposed alternate statutory and regulatory changes to increase competition in the Program.

OPM understands the concerns expressed by these FEHB carriers and appreciates the alternate proposals to increase competition, some of which would require legislative action to implement. However, OPM declines to adjust the proposed regulatory language based on these comments. OPM's primary objective for the FEHB Program, as detailed in the agency's strategic plan, is to enhance the quality and affordability of FEHB insurance offerings. In order to achieve that objective, this regulation's goal is to allow increased competition among FEHB Program plans. OPM considers a competitive environment as one in which all carriers conduct business under the same set of rules, meaning no carrier has the advantage of offering products that another carrier cannot. While plan benefits vary, OPM wants all carriers to be able to offer the same number and types of plan options. Carriers in the FEHB Program compete on price, quality, providers, and coverage levels. All carriers have the ability to adjust their premiums, focus on quality, recruit providers and promote their brand to compete with the largest insurer in the FEHB Program. That some carriers attract more enrollment than others is not evidence of an anti-competitive environment. The new option now available to be offered by the Service Benefit Plan may encourage carriers to make changes to their existing third products or add a new third product, creating more competition in the Program.

Several carriers also asserted that the proposed rule exceeds OPM's authority under the FEHB Act and recommended that OPM withdraw the proposed rule. OPM declines to withdraw the proposed rule on this basis.

OPM asserts that the statute allows both the SBP and the IBP to have more than two options of benefits. The legislative history of the FEHB Act (FEHBA) supports this conclusion. In designing the FEHB Program, Congress intended for employees to have free choice among health benefits plans in four major categories and the legislative history notes that the SBP and the IBP would each include “at least” two levels of benefits; H.R. Rep. No. 957, 86th Cong., 1st Sess. 1959, 1959 U.S.C.C.A.N. 2913, 2915; 1959 WL 3975. OPM's interpretation of the FEHBA allows for carriers to have no fewer than two options, and supports the Agency's position on competition, quality and affordability in the FEHB Program. The precedent for adding additional options to the SBP was set in 2010 at 75 FR 76615. Additional innovative options can help the government compete with private employers for talented employees.

FEHBA was enacted in 1959 with the recognition that competition was essential to maintain good benefits at low cost. Congress, however, did not seek to burden the Government with the administrative complexities of doing business with a large number of carriers throughout the nation competing for Federal enrollees. Recognizing that unrestricted competition could make the program administratively unwieldy and ineffective, competition was contemplated as occurring between and among the industry groups offering the various plan types. See testimony from the hearing before the House Committee on Post Office and Civil Service (Testimony) at 89-93; S Rept 498, 86th Cong 1st Sess 1959 at 8-9. In considering the plan descriptions and types, it was clear that Congress valued and anticipated evolution in the health benefits services industry and intentionally left certain aspects of the law vague in order for the carriers and/or the Civil Service Commission (CSC) to apply discretion. Indeed, the Senate Report identifies, in its prefatory discussion of governing principles related to the Government as an employer, that the Federal Government has an opportunity to “influence soundly the development of health services and ways of financing their costs, and that all responsible and promising efforts should be encouraged and not arbitrarily limited to any single approach. Reasonable competition among different types of programs will provide Federal employees with a better program.” It appears clear from the legislative history of the FEHB Program that Congress intended the CSC and its successor OPM to reasonably interpret the law in a way that supports and encourages competition among the different categories of plans. Where the law as it presently reads, refers to “at least” in other places, it does so in an unrelated context, not necessarily related to OPM's discretion in establishing competition. Where the law does not speak to the number of levels or options, it is implicit that OPM has authority to restrict or encourage a carrier's addition of options in those plans. The need for a baseline of at least two options was intended to ensure sufficient choice to serve enrollees, given that the purpose of the law was to recruit and retain employees by establishing a program with a variety of offerings consisting of good coverage at low cost. The notion that OPM may in some way be constrained by language that does not expressly preclude more than two levels, mandating the agency to fail or refuse to modernize its thinking or react responsively to change engendered by transformations in the marketplace and in the arena of FEHB competition, is antithetical to the foundational premise of the program. Given the ongoing evolution of competition in the health care industry, OPM has now taken the view that the statute need not be read to require exactly two levels for SBP and IBP. We believe that so long as there are “at least” two levels of benefits, permitting additional levels of benefits does not contravene the statute; the goal of ensuring adequate competition while avoiding undue administrative complexity is satisfied.

Carriers noted in their comments that OPM has asserted in the past that the SBP and the IBP are limited to offering only 2 options. While this may be relevant historical context, the current regulation allows both the SBP and the IBP to have 3 options, though one must be a high deductible health plan (HDHP). In other words, under the current regulation the SBP and the IBP are able to offer more than two levels of benefits. This regulation merely broadens carriers' ability to offer competitive options beyond HDHPs. Therefore, no changes have been made to the regulation based on these comments.

Expected Impact of Final Changes

The FEHB Program currently contracts with 83 health plan carriers which offer a total of 262 health plan options. These changes are projected to create two additional plan options in the FEHB Program. OPM expects that this regulatory change allowing an increase in the number of plan options will have a positive effect on the market dynamics in the FEHB Program by potentially increasing competition between health plans. This regulatory change will allow health plans under 5 U.S.C. 8903(1) and (2) to offer a greater variety of lower cost, higher quality options to better serve FEHB Program enrollee interests. OPM will ensure that any new options are distinct and meet enrollee interests and that enrollees have access to adequate information to understand the available plan options.

Executive Order Requirements

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” under Executive Order 12866.

Paperwork Reduction Act Requirements

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This rule involves an OMB approved collection of information subject to the PRA—OMB No. 3206-0160, Health Benefits Election Form. The public reporting burden for this collection is estimated to average 30 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this form is 9,000 hours. The systems of record notice for this collection is: OPM/Central 1 Civil Service Retirement and Insurance Records, available at https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-central-1-civil-service-retirement-and-insurance-records.pdf.

The FEHB Program currently has a total of 262 health plan options for employees to choose from for their health benefits coverage. Historically, about 18,000 FEHB participants switch health care plans in any given year. This regulation has the potential to add two new enrollment codes representing new plan options and is not anticipated to significantly change the burden associated with this collection. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to [email protected]

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities.

E.O. 13771: Reducing Regulation and Controlling Regulatory Costs

This Final rule is expected to be an E.O. 13771 deregulatory action as it addresses an asymmetry in the Federal Employees Health Benefits (FEHB) Program market by allowing all carriers to offer three plan options. Additional information can be found in the “Expected Impact of Final Changes” section of the rule.

List of Subjects in 5 CFR Part 890

Administration and general provisions; Health benefits plans; Enrollment, Temporary extension of coverage and conversion; Contributions and withholdings; Transfers from retired FEHB Program; Benefits in medically underserved areas; Benefits for former spouses; Limit on inpatient hospital charges, physician charges, and FEHB benefit payments; Administrative sanctions imposed against health care providers; Temporary continuation of coverage; Benefits for United States hostages in Iraq and Kuwait and United States hostages captured in Lebanon; Department of Defense Federal Employees Health Benefits Program demonstration project; Administrative practice and procedure, Employee benefit plans, Government employees, Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management. Jeff T.H. Pon, Director.

Accordingly, OPM is amending title 5, Code of Federal Regulations, as follows:

PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 1. The authority citation for part 890 continues to read as follows: Authority:

5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. L. 111-148, as amended by Pub. L. 111-152.

2. Amend § 890.201 by revising paragraph (b)(3)(i) and removing and reserving paragraph (b)(3)(ii).

The revision reads as follows:

§ 890.201 Minimum standards for health benefits plans.

(b) * * *

(3)(i) Have either more than three options, or more than two options and a high deductible health plan (26 U.S.C. 223(c)(2)(A)) if the plan is described under 5 U.S.C. 8903(1), (2), (3) or (4).

[FR Doc. 2018-08933 Filed 4-26-18; 8:45 am] BILLING CODE 6325-63-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 95 [Docket No. 31192; Amdt. No. 539] IFR Altitudes; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.

DATES:

Effective 0901 UTC, May 24, 2018.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Nichols, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The Rule

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

Conclusion

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 95

Airspace, Navigation (air).

Issued in Washington, DC, on April 20, 2018. John Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, May 24, 2018.

1. The authority citation for part 95 continues to read as follows: Authority:

49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.

2. Part 95 is amended to read as follows: Revisions to IFR Altitudes and Changeover Point [Amendment 539 effective date May 24, 2018] FROM TO MEA § 95.6001 Victor Routes-U.S. § 95.6002 VOR Federal Airway V2 is Amended to Delete LANSING, MI VORTAC SALEM, MI VORTAC *5000 *3000—MOCA *3000—GNSS MEA SALEM, MI VORTAC DELOW, MI FIX 3000 DELOW, MI FIX U.S. CANADIAN BORDER *4000 *2800—MOCA U.S. CANADIAN BORDER BUFFALO, NY VOR/DME *4000 *2400—MOCA § 95.6005 VOR Federal Airway V5 is Amended to Delete APPLETON, OH VORTAC MANSFIELD, OH VORTAC 3000 MANSFIELD, OH VORTAC DRYER, OH VOR/DME 3000 DRYER, OH VOR/DME U.S. CANADIAN BORDER #2500 #FOR THAT AIRSPACE OVER U.S. TERRITORY § 95.6006 VOR Federal Airway V6 is Amended by Adding GIPPER, MI VORTAC MODEM, IN FIX *4000 *2600—MOCA Is Amended to Delete GIPPER, MI VORTAC BRYTO, IN FIX X *3500 *2600—MOCA BRYTO, IN FIX PIONS, OH FIX *4000 *2500—MOCA PIONS, OH FIX WATERVILLE, OH VOR/DME *3300 *2300—MOCA DRYER, OH VOR/DME *MOROW, OH FIX 3100 *5000—MCA MOROW, OH FIX, E BND MOROW, OH FIX *HIRES, OH FIX **5000 *3500—MCA HIRES, OH FIX, W BND **2700—MOCA **3000—GNSS MEA HIRES, OH FIX YOUNGSTOWN, OH VORTAC 2900 YOUNGSTOWN, OH VORTAC MERCY, PA FIX *5000 *3000—MOCA *3000—GNSS MEA MERCY, PA FIX CLARION, PA VOR/DME 3600 § 95.6007 VOR Federal Airway V7 is Amended to Read in Part DOLPHIN, FL VORTAC LEE COUNTY, FL VORTAC 2300 § 95.6008 VOR Federal Airway V8 is Amended to Delete FLAG CITY, OH VORTAC DUSKY, OH FIX 2600 DUSKY, OH FIX MANSFIELD, OH VORTAC 3000 MANSFIELD, OH VORTAC BRIGGS, OH VOR/DME 3000 § 95.6010 VOR Federal Airway V10 is Amended to Delete LITCHFIELD, MI VOR/DME *CRUXX, MI FIX 3000 *7500—MRA *CRUXX, MI FIX CARLETON, MI VOR/DME **6000 *7500—MRA **2300—MOCA CARLETON, MI VOR/DME U.S. CANADIAN BORDER *3000 *2100—MOCA U.S. CANADIAN BORDER AZTRO, OH FIX *4000 *1800—MOCA AZTRO, OH FIX FAILS, OH FIX *4000 *1800—MOCA *2300—GNSS MEA FAILS, OH FIX WONOP, OH FIX *3000 *2000—MOCA WONOP, OH FIX YOUNGSTOWN, OH VORTAC *5000 *2700—MOCA *3000—GNSS MEA § 95.6011 VOR Federal Airway V11 is Amended to Delete EDGEE, OH FIX PIONS, OH FIX 4000 PIONS, OH FIX *HIRED, MI FIX 6000 *6000—MRA *HIRED, MI FIX **CRUXX, MI FIX 7500 *6000—MRA **7500—MRA § 95.6014 VOR Federal Airway V14 is Amended to Delete FLAG CITY, OH VORTAC OBRLN, OH FIX *3500 *2400—MOCA OBRLN, OH FIX DRYER, OH VOR/DME *3500 *2500—MOCA DRYER, OH VOR/DME JEFFERSON, OH VOR/DME 3500 JEFFERSON, OH VOR/DME ERIE, PA VORTAC 2700 § 95.6026 VOR Federal Airway V26 is Amended to Delete LANSING, MI VORTAC SALEM, MI VORTAC *5000 *3000—GNSS MEA SALEM, MI VORTAC DETROIT, MI VOR/DME 2900 DETROIT, MI VOR/DME U.S. CANADIAN BORDER *3400 *2300—MOCA U.S. CANADIAN BORDER GEMNI, OH FIX *3400 *2300—MOCA GEMNI, OH FIX DRYER, OH VOR/DME *3000 *2200—MOCA § 95.6030 VOR Federal Airway V30 is Amended to Delete LITCHFIELD, MI VOR/DME *HIRED, MI FIX 3000 *6000—MRA *HIRED, MI FIX WATERVILLE, OH VOR/DME 3000 *6000—MRA DRYER, OH VOR/DME AKRON, OH VOR/DME 3000 AKRON, OH VOR/DME CAPEL, OH FIX 3600 CAPEL, OH FIX VOLAN, PA FIX *3600 *2800—MOCA VOLAN, PA FIX CLARION, PA VOR/DME 3600 § 95.6038 VOR Federal Airway V38 is Amended by Adding FORT WAYNE, IN VORTAC WINES, OH FIX 2500 Is Amended to Delete FORT WAYNE, IN VORTAC FLAG CITY, OH VORTAC 2500 FLAG CITY, OH VORTAC APPLETON, OH VORTAC 3000 § 95.6040 VOR Federal Airway V40 is Amended to Delete DRYER, OH VOR/DME BRIGGS, OH VOR/DME 3000 BRIGGS, OH VOR/DME CUTTA, OH FIX 3000 § 95.6043 VOR Federal Airway V43 is Amended to Delete APPLETON, OH VORTAC TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME BRIGGS, OH VOR/DME 3000 BRIGGS, OH VOR/DME YOUNGSTOWN, OH VORTAC 3000 ERIE, PA VORTAC U.S. CANADIAN BORDER #UNUSABLE U.S. CANADIAN BORDER BUFFALO, NY VOR/DME *4000 *2400—MOCA § 95.6045 VOR Federal Airway V45 is Amended to Delete APPLETON, OH VORTAC DUSKY, OH FIX 3000 DUSKY, OH FIX WATERVILLE, OH VOR/DME 2600 WATERVILLE, OH VOR/DME *HIRED, MI FIX 3000 *6000—MRA *HIRED, MI FIX JACKSON, MI VOR/DME 3000 *6000—MRA JACKSON, MI VOR/DME LANSING, MI VORTAC 3000 LANSING, MI VORTAC SAGINAW, MI VOR/DME 2600 § 95.6047 VOR Federal Airway V47 is Amended to Delete FLAG CITY, OH VORTAC WATERVILLE, OH VOR/DME 2500 § 95.6059 VOR Federal Airway V59 is Amended to Delete NEWCOMERSTOWN, OH VOR/DME BRIGGS, OH VOR/DME 3000 § 95.6074 VOR Federal Airway V74 is Amended to Read in Part FORT SMITH, AR VORTAC MAGGA, AR FIX E BND 4500 W BND 4000 § 95.6075 VOR Federal Airway V75 is Amended to Delete BRIGGS, OH VOR/DME DRYER, OH VOR/DME 3000 DRYER, OH VOR/DME U.S. CANADIAN BORDER #*4000 *2200—MOCA #FOR THAT AIRSPACE OVER U.S. TERRITORY. § 95.6084 VOR Federal Airway V84 is Amended to Delete LANSING, MI VORTAC FLINT, MI VORTAC 2700 § 95.6092 VOR Federal Airway V92 is Amended to Delete BEBEE, IL FIX *NILES, IL FIX 3400 *3500—MRA *3000—MCA NILES, IL FIX, N BND *NILES, IL FIX CHICAGO HEIGHTS, IL VORTAC 2500 *3500—MRA GOSHEN, IN VORTAC BAGEL, IN FIX 2700 BAGEL, IN FIX EDGEE, OH FIX *3000 *2400—MOCA EDGEE, OH FIX WATERVILLE, OH VOR/DME 3000 WATERVILLE, OH VOR/DME MANSFIELD, OH VORTAC 2900 MANSFIELD, OH VORTAC TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME NEWCOMERSTOWN, OH VOR/DME 3000 § 95.6096 VOR Federal Airway V96 is Amended by Adding FORT WAYNE, IN VORTAC TWERP, OH FIX *5000 *2300—MOCA Is Amended to Delete FORT WAYNE, IN VORTAC *ILLIE, OH FIX **5000 *16000—MCA ILLIE, OH FIX, NE BND **2300—MOCA ILLIE, OH FIX *ANNTS, OH FIX **16000 *16000—MCA ANNTS, OH FIX, SW BND **2100—MOCA ANNTS, OH FIX DETROIT, MI VOR/DME *3000 *2100—MOCA § 95.6098 VOR Federal Airway V98 is Amended to Delete DAYTON, OH VOR/DME HINES, OH FIX 3000 HINES, OH FIX *WOCKY, OH FIX 7000 *7000—MCA WOCKY, OH FIX, S BND WOCKY, OH FIX *PIONS, OH FIX 10000 *10000—MCA PIONS, OH FIX, S BND PIONS, OH FIX MIZAR, MI FIX 3000 § 95.6103 VOR Federal Airway V103 is Amended to Delete AKRON, OH VOR/DME U.S. CANADIAN BORDER *9000 *2700—MOCA U.S. CANADIAN BORDER DETROIT, MI VOR/DME *4000 *2700—MOCA DETROIT, MI VOR/DME PONTIAC, MI VORTAC *3000 *2400—MOCA PONTIAC, MI VORTAC LANSING, MI VORTAC 3000 § 95.6116 VOR Federal Airway V116 is Amended to Delete WILLA, IL FIX *NEPTS, MI FIX **4000 *3000—MRA **1800—MOCA *NEPTS, MI FIX KEELER, MI VOR/DME 2400 *3000—MRA KEELER, MI VOR/DME KALAMAZOO, MI VOR/DME 2600 KALAMAZOO, MI VOR/DME JACKSON, MI VOR/DME 2700 JACKSON, MI VOR/DME SALEM, MI VORTAC 3000 SALEM, MI VORTAC U.S. CANADIAN BORDER #*3000 *2400—MOCA U.S. CANADIAN BORDER TRACE, OH FIX *7000 *1900—MOCA TRACE, OH FIX ERIE, PA VORTAC *3000 *2200—MOCA § 95.6126 VOR Federal Airway V126 is Amended by Adding GOSHEN, IN VORTAC ILTON, IN FIX *3000 *2400—MOCA Is Amended to Delete GOSHEN, IN VORTAC BAGEL, IN FIX 2700 BAGEL, IN FIX EDGEE, OH FIX *3000 *2400—MOCA EDGEE, OH FIX WATERVILLE, OH VOR/DME 3000 WATERVILLE, OH VOR/DME DRYER, OH VOR/DME 000 DRYER, OH VOR/DME JEFFERSON, OH VOR/DME 3000 JEFFERSON, OH VOR/DME ERIE, PA VORTAC 2700 § 95.6133 VOR Federal Airway V133 is Amended to Delete ZANESVILLE, OH VOR/DME TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME MANSFIELD, OH VORTAC 3000 SALEM, MI VORTAC SAGINAW, MI VOR/DME 3000 § 95.6144 VOR Federal Airway V144 is Amended to Read in Part *BEALL, OH FIX *MORGANTOWN, WV VORTAC 4000 *4600—MCA MORGANTOWN, WV VORTAC, SE BND § 95.6157 VOR Federal Airway V157 is Amended to Read in Part *LOTTS, GA FIX ALLENDALE, SC VOR **9000 *6000—MRA **1800—MOCA **2000—GNSS MEA § 95.6159 VOR Federal Airway V159 is Amended to Read in Part VIRGINIA KEY, FL VOR/DME *NITNY, FL FIX 2100 *3000—MCA NITNY, FL FIX, N BND § 95.6170 VOR Federal Airway V170 is Amended to Delete ERIE, PA VORTAC BRADFORD, PA VOR/DME *5000 *3900—MOCA § 95.6176 VOR Federal Airway V176 is Amended to Delete CARLETON, MI VOR/DME U.S. CANADIAN BORDER *3000 *2100—MOCA § 95.6188 VOR Federal Airway V188 is Amended to Delete CARLETON, MI VOR/DME U.S. CANADIAN BORDER *3000 *2100—MOCA U.S. CANADIAN BORDER FAILS, OH FIX *4000 *1800—MOCA *2300—GNSS MEA FAILS, OH FIX WONOP, OH FIX *3000 *2000—MOCA WONOP, OH FIX CLERI, OH FIX *3000 *2200—MOCA CLERI, OH FIX JEFFERSON, OH VOR/DME *3000 *2400—MOCA JEFFERSON, OH VOR/DME TIDIOUTE, PA VORTAC 3500 § 95.6210 VOR Federal Airway V210 is Amended to Delete ROSEWOOD, OH VORTAC TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME BRIGGS, OH VOR/DME 3000 BRIGGS, OH VOR/DME SEING, OH FIX 3000 SEING, OH FIX CAPEL, OH FIX 3600 CAPEL, OH FIX VOLAN, PA FIX *3600 *2800—MOCA VOLAN, PA FIX TALLS, PA FIX *5000 *3200—MOCA *3300—GNSS MEA TALLS, PA FIX REVLOC, PA VOR/DME 4100 § 95.6221 VOR Federal Airway V221 is Amended by Adding FORT WAYNE, IN VORTAC ILTON, IN FIX 3000 Is Amended to Delete FORT WAYNE, IN VORTAC GAREN, IN FIX 2600 GAREN, IN FIX LITCHFIELD, MI VOR/DME 3000 LITCHFIELD, MI VOR/DME JACKSON, MI VOR/DME *3000 *2500—MOCA JACKSON, MI VOR/DME SALEM, MI VORTAC 3000 SALEM, MI VORTAC DELOW, MI FIX 3000 DELOW, MI FIX U.S. CANADIAN BORDER *4000 *2800—MOCA U.S. CANADIAN BORDER ERIE, PA VORTAC #3000 #FOR THAT AIRSPACE OVER U.S. TERRITORY. § 95.6232 VOR Federal Airway V232 is Amended to Delete CHARDON, OH VOR/DME FRANKLIN, PA VOR 3300 MAA—15000 FRANKLIN, PA VOR COOBE, PA FIX 3500 COOBE, PA FIX KEATING, PA VORTAC 4000 § 95.6233 VOR Federal Airway V233 is Amended to Delete LITCHFIELD, MI VOR/DME LANSING, MI VORTAC 3000 LANSING, MI VORTAC MOUNT PLEASANT, MI VOR/DME 3000 § 95.6275 VOR Federal Airway V275 is Amended to Read in Part DAYTON, OH VOR/DME KLOEE, OH FIX *6000 *2500—MOCA § 95.6297 VOR Federal Airway V297 is Amended to Delete JOHNSTOWN, PA VOR/DME TALLS, PA FIX 4400 TALLS, PA FIX VOLAN, PA FIX *5000 *3200—MOCA *3300—GNSS MEA VOLAN, PA FIX CAPEL, OH FIX *3600 *2800—MOCA CAPEL, OH FIX AKRON, OH VOR/DME 3600 AKRON, OH VOR/DME U.S. CANADIAN BORDER *6000 *3000—MOCA § 95.6353 VOR Federal Airway V353 is Amended to Delete JACKSON, MI VOR/DME FLINT, MI VORTAC 2800 § 95.6383 VOR Federal Airway V383 is Amended to Delete ROSEWOOD, OH VORTAC YOGGI, OH FIX 3100 YOGGI, OH FIX *CHOOT, OH FIX **6500 *6500—MRA **3100—MOCA *CHOOT, OH FIX DETROIT, MI VOR/DME 3100 *6500—MRA § 95.6396 VOR Federal Airway V396 is Amended to Delete U.S. CANADIAN BORDER CHARDON, OH VOR/DME *8000 *2700—MOCA § 95.6406 VOR Federal Airway V406 is Amended to Delete SALEM, MI VORTAC U.S. CANADIAN BORDER *4000 *2700—MOCA § 95.6416 VOR Federal Airway V416 is Amended to Delete ROSEWOOD, OH VORTAC *LAWTO, OH FIX **4000 *4000—MRA **2500—MOCA *LAWTO, OH FIX MANSFIELD, OH VORTAC **4000 *4000—MRA **2500—MOCA MANSFIELD, OH VORTAC JAKEE, OH FIX 3000 § 95.6418 VOR Federal Airway V418 is Amended to Delete SALEM, MI VORTAC BEWEL, OH FIX #*4000 *2700—MOCA #FOR THAT AIRSPACE OVER U.S. TERRITORY. BEWEL, OH FIX JAMESTOWN, NY VOR/DME *4000 *3300—MOCA § 95.6426 VOR Federal Airway V426 is Amended to Delete CARLETON, MI VOR/DME SALFE, OH FIX *4000 *3000—GNSS MEA SALFE, OH FIX AMRST, OH FIX AMRST, OH FIX DRYER, OH VOR/DME *3000 *2200—MOCA § 95.6435 VOR Federal Airway V435 is Amended to Delete ROSEWOOD, OH VORTAC OBRLN, OH FIX *6000 *2700—MOCA OBRLN, OH FIX DRYER, OH VOR/DME *3500 *2500—MOCA § 95.6443 VOR Federal Airway V443 is Amended to Delete WISKE, WV FIX NEWCOMERSTOWN, OH VOR/DME 3300 NEWCOMERSTOWN, OH VOR/DME TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME DRYER, OH VOR/DME 3000 DRYER, OH VOR/DME FAILS, OH FIX 2500 FAILS, OH FIX U.S. CANADIAN BORDER *3000 *1700—MOCA § 95.6450 VOR Federal Airway V450 is Amended to Delete FLINT, MI VORTAC KATTY, MI FIX 3000 KATTY, MI FIX U.S. CANADIAN BORDER *4000 *2800—MOCA § 95.6464 VOR Federal Airway V464 is Amended to Delete SALEM, MI VORTAC U.S. CANADIAN BORDER 3000 § 95.6467 VOR Federal Airway V467 is Amended to Delete RICHMOND, IN VORTAC WATERVILLE, OH VOR/DME *10000 *3000—MOCA WATERVILLE, OH VOR/DME DETROIT, MI VOR/DME *3000 *2100—MOCA § 95.6486 VOR Federal Airway V486 is Amended to Delete LEBRN, OH FIX CHARDON, OH VOR/DME 3000 CHARDON, OH VOR/DME ALLCO, PA FIX 3300 ALLCO, PA FIX JAMESTOWN, NY VOR/DME *3700 *3200—MOCA § 95.6493 VOR Federal Airway V493 is Amended to Delete APPLETON, OH VORTAC DUSKY, OH FIX 3000 DUSKY, OH FIX WATERVILLE, OH VOR/DME 2600 WATERVILLE, OH VOR/DME CARLETON, MI VOR/DME *3000 *2200—MOCA § 95.6522 VOR Federal Airway V522 is Amended to Delete DRYER, OH VOR/DME FAILS, OH FIX 2500 § 95.6523 VOR Federal Airway V523 is Amended to Delete APPLETON, OH VORTAC TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME AKRON, OH VOR/DME 3000 AKRON, OH VOR/DME YOUNGSTOWN, OH VORTAC 3000 YOUNGSTOWN, OH VORTAC ERIE, PA VORTAC *5000 *3000—GNSS MEA § 95.6525 VOR Federal Airway V525 is Amended to Delete APPLETON, OH VORTAC TIVERTON, OH VOR/DME 3000 TIVERTON, OH VOR/DME DRYER, OH VOR/DME 3000 § 95.6534 VOR Federal Airway V534 is Amended to Read in Part SCRAN, AR FIX FORT SMITH, AR VORTAC W BND *3500 E BND *4500 *3000—MOCA § 95.6542 VOR Federal Airway V542 is Amended to Delete ROSEWOOD, OH VORTAC *LAWTO, OH FIX 4000 *4000—MRA *LAWTO, OH FIX MANSFIELD, OH VORTAC **4000 *4000—MRA **2500—MOCA MANSFIELD, OH VORTAC AKRON, OH VOR/DME 3000 AKRON, OH VOR/DME YOUNGSTOWN, OH VORTAC *3000 *2600—MOCA YOUNGSTOWN, OH VORTAC HAGAR, PA FIX 3000 HAGAR, PA FIX TIDIOUTE, PA VORTAC 3600 § 95.6573 VOR Federal Airway V573 is Amended to Read in Part ELMMO, AR FIX MARKI, AR FIX *5500 *2600—MOCA MARKI, AR FIX HOT SPRINGS, AR VOR/DME NE BND *3500 SW BND *5500 *2700—MOCA § 95.6584 VOR Federal Airway V584 is Amended to Delete WATERVILLE, OH VOR/DME DRYER, OH VOR/DME *3000 *2200—MOCA § 95.6319 Alaska VOR Federal Airway V319 is Amended to Read in Part JOHNSTONE POINT, AK VOR/DME EDELE, AK FIX E BND 4400 W BND 10000 SNRIS, AK FIX *ANCHORAGE, AK VOR/DME W BND 8200 E BND 10000 *8000—MCA ANCHORAGE, AK VOR/DME, E BND § 95.6322 Alaska VOR Federal Airway V322 is Amended to Read in Part KING SALMON, AK VORTAC KONIC, AK FIX W BND 5000 E BND 9000 AIRWAY SEGMENT FROM TO CHANGEOVER POINTS DISTANCE FROM § 95.8003 VOR Federal Airway Changeover Point is Amended to Delete Changeover Point APPLETON, OH VORTAC MANSFIELD, OH VORTAC 28 APPLETON. V6 is Amended to Delete Changeover Point DRYER, OH VOR/DME YOUNGSTOWN, OH VORTAC 39 DRYER. YOUNGSTOWN, OH VORTAC CLARION, PA VOR/DME 20 YOUNGSTOWN. V467 is Amended to Delete Changeover Point RICHMOND, IN VORTAC WATERVILLE, OH VOR/DME 56 RICHMOND. V542 is Amended to Delete Changeover Point YOUNGSTOWN, OH VORTAC TIDIOUTE, PA VORTAC 21 YOUNGSTOWN.
[FR Doc. 2018-08837 Filed 4-26-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 901 [SATS No. AL-078-FOR; Docket ID: OSMRE-2015-0005; S1D1S SS08011000 SX064A000 178S180110; S2D2S SS08011000 SX064A000 17XS501520] Alabama Regulatory Program AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Alabama regulatory program (Alabama program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Alabama proposed revisions clarifying that the venue for appeals of Alabama Surface Mining Commission decisions resides in the Circuit Court of the county in which the agency maintains its principal office. Alabama is revising its program to be no less effective than the Federal regulations and to improve operational efficiency.

DATES:

The effective date is May 29, 2018.

FOR FURTHER INFORMATION CONTACT:

Bill Joseph, Acting Director, Birmingham Field Office, Office of Surface Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215, Homewood, AL 35209. Telephone: (918) 5814-6431 ext. 230. Email: [email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Alabama Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Procedural Determinations I. Background on the Alabama Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15 and 901.16.

II. Submission of the Amendment

By letter dated June 12, 2015 (Administrative Record No. AL-0666), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative.

We announced receipt of the proposed amendment in the October 5, 2015, Federal Register (80 FR 60107). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on November 4, 2015. We received four public comments (Administrative Record No. AL-0666-03) that are addressed in the Public Comments section of part IV. Summary and Disposition of Comments.

III. OSMRE's Findings

We are approving the amendment as described below. The following are the findings we made concerning Alabama's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov.

1. Code of Alabama Section 9-16-79 Hearing and Appeals

Alabama added new language clarifying that procedures for the Alabama Surface Mining Commission are governed by this section of the Alabama Code because the Alabama Surface Mining Commission (ASMC) is within the jurisdiction of the Alabama Surface Mining Act and the procedures for hearings and appeals may be no less effective than the Federal counterpart. This clarification is necessary to distinguish this article of the code from other sections of the Alabama Code that are exclusively governed by the Alabama Administrative Procedure Act and have no impact upon the implementation of the Alabama Surface Mining Act.

We find that Alabama's clarification does not make its rules or regulations less effective than, or inconsistent with, the Federal requirements. Therefore, we are approving Alabama's revision.

2. Code of Alabama Section 9-16-79 Hearing and Appeals; Procedures (4)b.

Alabama made edits and added new language to this paragraph clarifying that the venue for appeals of Alabama Surface Mining Commission decisions resides in the Circuit Court of the county in which the agency maintains its principal office.

We find that Alabama's edits and clarifications do not make its rules inconsistent with the requirements of SMCRA section 526(e). Therefore, we are approving Alabama's revisions.

IV. Summary and Disposition of Comments Public Comments

We asked for public comments on the amendment. As noted in Section II, we received four comments, which generally focused on two issues. The comments received are discussed below.

First, the commenters alleged that the proposed program amendment violates the venue-provisions of SMCRA as they relate to actions seeking judicial review of final decisions. Two of the commenters cited section 520(c)(1) as support for this comment. That provision states that citizen suits “may be brought only in the judicial district in which the surface coal mining operation complained of is located.” 30 U.S.C. 1270(c)(1).

Contrary to the commenters' assertion, this change to Alabama's program does not violate section 520(c)(1) of SMCRA. Even with the program amendment, citizen suits may still be filed by any person having an interest in the judicial district in which the surface coal mining operation complained of is located. Final decisions of the ASMC cannot be the subject of citizen suits. Instead, challenges to final decisions of the ASMC are challenged under the Alabama counterpart to section 526 of SMCRA. In contrast to section 520(c)(1), section 526(e) of SMCRA provides that an “[a]ction of the State regulatory authority pursuant to an approved State program shall be subject to judicial review by a court of competent jurisdiction in accordance with State law.” Section 526(e) also makes clear that its judicial review provisions do not extend to citizen suits under section 520. 30 U.S.C. 1276(e) (“the availability of such review shall not be construed to limit the operation of the rights established in section 520 except as provided therein.”). Because the county in which the ASMC maintains its principal office is a court of competent jurisdiction in Alabama, it is not inconsistent with SMCRA for Alabama to specify that all actions challenging its decisions must be brought there.

Second, the commenters alleged that requiring judicial review of ASMC final decisions in the circuit court of the county in which the commission maintains its principal office would unfairly limit the rights of citizens, would be difficult and expensive for citizens, and would provide for potential bias based upon industry and politics.

We understand the citizens' concerns, but we do not find that they make the Alabama program inconsistent with SMCRA. For example, on the federal level, when a citizen brings a lawsuit in the “judicial district in which the surface coal mining operation complained of is located,” the judicial district may be made up of multiple counties or even an entire state. Even in these situations, the litigation often occurs in a county that is different than the county where either the citizen resides or the surface coal mining operation is located. Therefore, it is not inconsistent with SMCRA that the venue is located away from the citizen's county or residence or the location of the surface coal mining operation. Because our role is solely to determine whether Alabama's proposed amendment is consistent with SMCRA—and it is—we have no basis to disapprove the amendment based on the concerns raised by the commenters.

Federal Agency Comments

On June 26, 2015, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Alabama program (Administrative Record No. AL-0666-03). We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Alabama proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on June 26, 2015, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. AL-0666-03). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 26, 2016, we requested comments on Alabama's amendment (Administrative Record No. AL-0666-03), but neither the SHPO nor the ACHP responded to our request.

V. OSMRE's Decision

Based on the above findings, we approve the amendment Alabama sent us on June 12, 2015 (Administrative Record No. AL-0666).

To implement this decision, we are amending the Federal regulations, at 30 CFR part 901, that codify decisions concerning the Alabama program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations Executive Order 12630—Takings

This rulemaking does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

Pursuant to Office of Management and Budget (OMB) Guidance dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has reviewed this rule as required by section 3(a) of Executive Order 12988. The Department determined that this Federal Register notice meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency reviews its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because Section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register notice and to changes to the Federal regulations. The review under this Executive Order did not extend to the language of the State regulatory program or to the program amendment that the State of Alabama drafted.

Executive Order 13132—Federalism

This rule is not a “[p]olicy that [has] Federalism implications” as defined by section 1(a) of Executive Order 13132 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.” Instead, this rule approves an amendment to the Alabama program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in sections 2 and 3 of the Executive Order and with the principles of cooperative federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to section 503(a)(1) an (7) (30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and is “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rulemaking on federally recognized Indian tribes and have determined that the rulemaking does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

Executive Order 13211 of May 18, 2001, requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rulemaking is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rulemaking does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rulemaking does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior certifies that this rulemaking 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.). The State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rulemaking would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rulemaking is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rulemaking: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rulemaking will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 901

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 3, 2018. Alfred L. Clayborne, Regional Director, Mid-Continent Region.

For the reasons set out in the preamble, 30 CFR part 901 is amended as set forth below:

PART 901—ALABAMA 1. The authority citation for part 901 continues to read as follows: Authority:

30 U.S.C. 1201 et seq.

2. Section 901.15 is amended in the table by adding an entry FOR “ASMCRA 9-16-79 and 9-16-79(4)b” in chronological order by “Date of final publication” to read as follows:
§ 901.15 Approval of Alabama regulatory program amendments. Original amendment submission date Date of final publication Citation/description *         *         *         *         *         *         * June 12, 2015 April 27, 2018 ASMCRA 9-16-79 and 9-16-79(4)b.
[FR Doc. 2018-08935 Filed 4-26-18; 8:45 am] BILLING CODE 4310-05-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket Number USCG-2015-0549] RIN 1625-AA01 Anchorage Grounds; Galveston Harbor, Bolivar Roads Channel, Galveston, Texas AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing a new anchorage area, Anchorage Area Alpha (A) East in Bolivar Roads near Galveston, Texas. The establishment of this additional anchorage area would enhance navigational safety, support regional maritime security needs, and contribute to the free flow of commerce in the Houston-Galveston area.

DATES:

This rule is effective May 29, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2015-0549 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) Navin Griffin, Sector Houston-Galveston, U.S. Coast Guard; telephone (281) 464-4736, 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 August 15, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Anchorage Grounds; Galveston Harbor, Bolivar Roads Channel, Galveston, Texas (82 FR 38643). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this Anchorage Area. During the comment period that ended, October 16, 2017, we received no comments.

III. Legal Authority and Need for Rule

The legal basis and authorities for this rule are found in 33 U.S.C. 471, 1221 through 1236; 33 CFR 1.05-1, Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory anchorages.

After extensive discussion, including the observations of and comments from various members of the port community, the Coast Guard has determined that the establishment of Anchorage Area (A) East in the Bolivar Roads area is necessary to address port security, port congestion, and navigation safety concerns. The proposed anchorage area was once an area utilized for spoils from dredging and is equipped to safely receive deep draft vessels. This proposed anchorage is primarily intended as an overflow anchorage for vessels that are awaiting an exam or inspection. We are amending 33 CFR 110.197 to establish Anchorage Area (A) East in order to increase the safety of life and property on navigable waters, improve the safety of vessels operating, transiting, or anchored and moored in the vicinity, and provide for the overall safe and efficient flow of vessel traffic and commerce in the area.

The Coast Guard has ascertained the view of the Galveston, TX District and Division Engineer, Corps of Engineers, U.S. Army, about the specific provisions of this rule.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published August 15, 2017. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a new anchorage Area known as Anchorage Area Alpha (A) East. This anchorage area is located in the Galveston Harbor and Bolivar Roads Channel, TX, just east and adjacent to established Anchorage Area (A) in 33 CFR 110.197(a)(1). The boundaries of Anchorage Area Alpha (A) East are presented in § 110.197(a)(4) in the regulatory text at the end of this document. The anchorage area is approximately 0.19 square miles.

Anchorage Area (A) East is intended for temporary use by vessels of all types. Vessels will be allowed to occupy the anchorage areas during a wide range of conditions and for a broad variety of purposes. For example, vessels would be allowed to anchor temporarily while taking on stores, transferring personnel, or engaging in bunkering operations. Vessels would also be allowed to use anchorage areas while awaiting weather and other conditions favorable to resuming their voyage. However, it is to be emphasized that this anchorage is primarily intended as an overflow anchorage for vessels that are awaiting an exam or inspection. Vessels would not be allowed to anchor so as to obstruct the passage of other vessels proceeding to and from anchorage spaces. Anchors would not be placed in the channel and no portion of the hull or rigging would be allowed to extend outside the limits of the anchorage area.

Whenever the maritime or commercial interests of the United States so require, the Captain of the Port Houston-Galveston or his designated representative may direct the movement of any vessel anchored or moored within the anchorage areas.

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 location and size of the proposed anchorage grounds, as well as, historical automatic identification system (AIS) data. The impacts on routine navigation are expected to be minimal because the proposed anchorage area is located outside of the established navigation channel. When not occupied, vessels would be able to maneuver in, around, and through the anchorage. Operators on our end maneuvering their vessels around the limits of the proposed anchorage area would not be significantly impacted.

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 00 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.

The number of small entities impacted and the extent of the impact, if any, is expected to be minimal. The anchorage area is located in an area of Bolivar Roads that is not a popular or productive fishing location. Further, the location is in an area not routinely transited by vessels heading to, or returning from, known fishing grounds. Finally, the anchorage is located in an area that is not currently used by small entities, including small vessels, for anchoring due to the depth of water naturally present in the area.

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, which guides 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 the establishment of a permanent anchorage area in Bolivar Roads near Galveston, Texas. It is categorically excluded from further review under paragraph L59(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 110

Anchorage Grounds.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority:

33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

2. In § 110.197, add paragraph (a)(4) to read as follows:
§ 110.197 Galveston Harbor, Bolivar Roads Channel, Texas.

(a) * * *

(4) Anchorage Area (A) East. The waters bounded by a line connecting the following points:

Latitude Longitude 29°21′5.87″ N 094°42′52.7″ W 29°20′53.99″ N 094°42′7.13″ W 29°20′45.31″ N 094°42′37.75″ W 29°20′39.16″ N 094°42′7.81″ W and thence to the point of beginning. The coordinates are based on NAD 83.
Dated: April 23, 2018. Paul F. Thomas, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2018-08873 Filed 4-26-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0857] Drawbridge Operation Regulation; St. Johns River, Putnam County, FL AGENCY:

Coast Guard, DHS.

ACTION:

Notice of temporary deviation from regulations; request for comments.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Buffalo Bluff CSX Railroad Bridge across the St. Johns River, mile 94.5, at Satsuma, Putnam County, FL. This deviation will test a change to the drawbridge operation to determine whether a permanent change from manned to remote operations is feasible. This deviation will allow the bridge to operate remotely from the CSX Railroad Bridge on the Ortega River (McGirts Creek) located at mile 1.1 on the Ortega River.

DATES:

This deviation is effective without actual notice from April 27, 2018 through 6 a.m. September 2, 2018. For the purposes of enforcement, actual notice will be used from April 23, 2018, until April 27, 2018.

Comments and related materials must reach the Coast Guard on or before August 14, 2018.

ADDRESSES:

You may submit comments identified by docket number USCG-2017-0857 using Federal eRulemaking Portal at http://www.regulations.gov.

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background, Purpose and Legal Basis

The Buffalo Bluff CSX Railroad Bridge across the St. Johns River, mile 94.5, in Satsuma, Putnam County, FL is a bascule bridge. It has a vertical clearance of 7 feet at mean high water in the closed position and a horizontal clearance of 90 feet. The bridge is currently manned and maintained in the open position. This test deviation would provide for the bridge to be remotely monitored and operated. Visual monitoring of the waterway shall be maintained with the use of cameras and the detection of vessels under the span shall be accomplished with detection sensors. Marine radio communication shall be maintained with mariners near the bridge for the safety of navigation. The remote tender may also be contacted via telephone at (386) 649-8358. The span is normally in the fully open position and will display green lights to indicate that the span is fully open. When a train approaches, the remote tender shall monitor for vessels approaching the bridge. The remote tender shall warn approaching vessels via marine radio, channel 9 VHF of a bridge lowering. Provided the sensors do not detect a vessel under the span, the tender shall initiate the span lowering sequence, which includes the sounding of a horn and the displaying of red lights. The span will remain in the down position for a minimum of eight minutes or for the entire time the approach track circuit is occupied. After the train has cleared the bridge track circuit, the span shall open and the green lights will be displayed. This will allow vessels to pass through the bridge while taking into account the reasonable needs of other modes of transportation.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

II. Public Participation and Request for Comments

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice.

Documents mentioned in this notice as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

Dated: April 23, 2018. Barry L. Dragon, Director, Bridge Branch, Seventh Coast Guard District.
[FR Doc. 2018-08866 Filed 4-26-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0356] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Boca Raton, FL AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Camino Real (Boca Club) Bridge across the Atlantic Intracoastal Waterway, mile 1048.2, at Boca Raton, FL. The deviation is necessary to facilitate the bridge rehabilitation project. This deviation allows the bridge single-leaf operations with advanced notice for a full bridge opening.

DATES:

This deviation is effective without actual notice from April 27, 2018 through 7 p.m. on October 9, 2018. For the purposes of enforcement, actual notice will be used from 7 a.m. on April 23, 2018, until April 27, 2018.

ADDRESSES:

The docket for this deviation, USCG-2018-0356 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email LT Ruth Sadowitz, U.S. Coast Guard Sector Miami, Waterways Management Division; telephone 305-535-4307, email [email protected]

SUPPLEMENTARY INFORMATION:

Kiewit Infrastructure South Co., on behalf of the bridge owner, Palm Beach County, has requested a temporary deviation from the current operating regulation that governs the Camino Real (Boca Club) Bridge across the Atlantic Intracoastal Waterway, mile 1048.2, at Boca Raton, FL. The deviation is necessary to facilitate the bridge rehabilitation project. The existing bridge is a double-leaf bascule bridge with a vertical clearance of 10 feet at mean high water in the closed to navigation position and a horizontal clearance of 83 feet between the fender system.

The existing bridge operating regulation is set out in 33 CFR 117.261(aa-1). Under this temporary deviation, on April 23, 2018 through October 9, 2018, from 7 a.m. to 7 p.m. Monday through Saturday, the bridge will operate on single-leaf openings with a 6-hour advanced notice for a full opening. During non-working hours, the bridge will operate per the normal bridge operating schedule.

The Atlantic Intracoastal Waterway is used by a variety of vessels including U.S. government vessels, small commercial vessels, recreational vessels and tugs and barge traffic. The Coast Guard has carefully considered the restrictions with waterway users in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will not be able to provide a full opening for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

Dated: April 23, 2018. Barry L. Dragon, Director, Bridge Branch, Seventh Coast Guard District.
[FR Doc. 2018-08867 Filed 4-26-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0198] RIN 1625-AA00 Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie Zone AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is updating its recurring safety zones regulations in the Captain of the Port Sault Sainte Marie Zone. This rule updates eighteen safety zone locations, dates, and sizes, adds three safety zones, removes two established safety zones, and reformats the regulations into an easier to read table format. These amendments will protect spectators, participants, and vessels from the hazards associated with annual marine events and firework shows, and improve the clarity and readability of the regulation.

DATES:

This rule is effective May 29, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0198 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 Junior Grade Sean V. Murphy, Chief of Waterways Management, Coast Guard Sector Sault Sainte Marie, U.S. Coast Guard; telephone 906-635-3223, 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 April 18, 2011 the Coast Guard published an NPRM in the Federal Register (76 FR 21677) entitled “Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Sault Sainte Marie Zone.” The NPRM proposed to establish 20 permanent safety zones for annually recurring events in the Captain of the Port Sault Sainte Marie Zone under § 165.918. The NPRM was open for comment for 30 days.

On June 2, 2011 the Coast Guard published the Final Rule in the Federal Register (76 FR 31839), after receiving no comments on the NPRM. Since that time there have been changes to the events that were listed in the Final Rule and additional annual events have been established.

In response, on March 21, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie Zone (83 FR 12307). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to these marine events and fireworks display. During the comment period that ended April 20, 2018, we received one comment.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 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.

The Captain of the Port Sault Sainte Marie (COTP) has determined that an amendment to the recurring safety zones list as published in 33 CFR 165.918 is necessary to: Update the location, date, and size of eighteen existing safety zones (Marquette Fourth of July Celebration Fireworks, Munising Fourth of July Celebration Fireworks, Sault Sainte Marie Fourth of July Celebration Fireworks, Mackinac Island Fourth of July Celebration Fireworks, Harbor Springs Fourth of July Celebration Fireworks, Bay Harbor Yacht Club Fourth of July Celebration Fireworks, Petoskey Fourth of July Celebration Fireworks, Boyne City Fourth of July Celebration Fireworks, Alpena Fourth of July Celebration Fireworks, Charlevoix Venetian Festival Friday Night Fireworks, Charlevoix Venetian Festival Saturday Night Fireworks, Elk Rapids Harbor Days Fireworks, Jordan Valley Freedom Festival Fireworks, Canada Day Celebration Fireworks, Festival of Fireworks Celebration Fireworks, Grand Marais Splash In, National Cherry Festival Airshow, and National Cherry Festival Finale Fireworks), establish three safety zones (Mackinaw Area Visitors Bureau Friday Night Fireworks, Nautical City Fireworks, and Traverse City Fourth of July Celebration Fireworks), remove National Cherry Festival Fourth of July Celebration Fireworks and St. Ignace Fourth of July Celebration Fireworks safety zones, and format the existing regulations into a table format. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and to improve the overall clarity and readability of the rule.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received one comment on our NPRM published March 21, 2018. The comment stated that updating the safety zone regulation improves the overall safety of the fireworks displays and that it is imperative for the size, dates, and locations of the safety zones to be accurate in order to protect lives. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule updates the location, date, and size of eighteen existing safety zones (Marquette Fourth of July Celebration Fireworks, Munising Fourth of July Celebration Fireworks, Sault Sainte Marie Fourth of July Celebration Fireworks, Mackinac Island Fourth of July Celebration Fireworks, Harbor Springs Fourth of July Celebration Fireworks, Bay Harbor Yacht Club Fourth of July Celebration Fireworks, Petoskey Fourth of July Celebration Fireworks, Boyne City Fourth of July Celebration Fireworks, Alpena Fourth of July Celebration Fireworks, Charlevoix Venetian Festival Friday Night Fireworks, Charlevoix Venetian Festival Saturday Night Fireworks, Elk Rapids Harbor Days Fireworks, Jordan Valley Freedom Festival Fireworks, Canada Day Celebration Fireworks, Festival of Fireworks Celebration Fireworks, Grand Marais Splash In, National Cherry Festival Airshow, and National Cherry Festival Finale Fireworks), establish three safety zones (Mackinaw Area Visitors Bureau Friday Night Fireworks, Nautical City Fireworks, and Traverse City Fourth of July Celebration Fireworks), remove National Cherry Festival Fourth of July Celebration Fireworks and St. Ignace Fourth of July Celebration Fireworks safety zones, and format the existing regulations into a table format. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and to improve the overall clarity and readability of the rule. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a 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 size, location, duration, and time-of-day for each safety zone. Vessel traffic will be able to safely transit around all safety zones which will impact small designated areas within the COTP zone for short durations of time. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities

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

While some owners or operators of vessels intending to transit the safety zones 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, call1-888-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 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 the update of eighteen safety zone locations, dates, and sizes, the addition of three safety zones, the removal of two safety zones, and the reformatting of regulations into an easier to read table format. 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 record keeping 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. Revise § 165.918 to read as follows:
§ 165.918 Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie.

(a) Regulations. The following regulations apply to the safety zones listed in Table 165.918 of this section:

(1) In accordance with the general regulations in §  165.23 of this part, entry into, transiting, or anchoring within any of the safety zones listed in this section is prohibited unless authorized by the Captain of the Port Sault Sainte Marie, or a designated representative.

(2) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port Sault Sainte Marie or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

(3) When a safety zone established by this section is being enforced, all vessels must obtain permission from the Captain of the Port Sault Sainte Marie or a designated representative to enter, move within, or exit that safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Sault Sainte Marie or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

(b) Suspension of enforcement. If the event concludes earlier than scheduled, the Captain of the Port Sault Sainte Marie or a designated representative will issue a Broadcast Notice to Mariners notifying the public that enforcement of the respective safety zone is suspended.

(c) Exemption. Public vessels, defined as any vessel owned or operated by the United States or by State or local governments, operating in an official capacity are exempted from the requirements of this section.

(d) Waiver. For any vessel, the Captain of the Port Sault Sainte Marie or a designated representative may, at his or her discretion, waive any of the requirements of this section, upon finding that circumstances are such that application of this section is unnecessary or impractical for the purposes of safety or environmental safety.

(e) Contacting the Captain of the Port. While a safety zone listed in this section is enforced, the Captain of the Port Sault Sainte Marie or a designated representative may be contacted via VHF Channel 16 or telephone at (906) 635-3319. Vessel operators given permission to enter or operate in a safety zone must comply with all directions given to them by the Captain of the Port Sault Sainte Marie, or a designated representative.

(f) Notice of enforcement. The Coast Guard will provide advance notice of the enforcement including specific date, time, and size of the safety zone being enforced in Table 165.918, by issuing a Notice of Enforcement, as well as, a Broadcast Notice to Mariners.

Table 165.918 [Datum NAD 1983] Event Location Event date (1) Mackinaw Area Visitors Bureau Friday Night Fireworks; Mackinaw City, MI All U.S. navigable waters of the Straits of Mackinac within an approximate 1000-foot radius from the fireworks launch site located in position 45°46′35.48″ N, 084°43′16.20″ W Friday nights between late May and Early September. (2) Jordan Valley Freedom Festival Fireworks; East Jordan, MI All U.S. navigable waters of Lake Charlevoix, near the City of East Jordan, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site in position 45°09′18″ N, 085°07′48″ W This event historically occurs in mid to late June. (3) Grand Marais Splash In; Grand Marais, MI All U.S. navigable waters within the southern portion of West Bay bound within the following coordinates: 46°40′22.08″ N, 085°59′0.12″ W, 46°40′22.08″ N, 85°58′22.08″ W, and 46°40′14.64″ N, 85°58′19.56″ W, with the West Bay shoreline forming the South and West boundaries of the zone This event historically occurs mid to late June. (4) Festivals of Fireworks Celebration Fireworks; St. Ignace, MI All U.S. navigable waters of East Moran Bay within an approximate 1000-foot radius from the fireworks launch site at the end of the Starline Mill Slip, centered in position: 45°52′24.62″ N, 084°43′18.13″ W On or around July 4th and Saturdays beginning late June to early September. (5) National Cherry Festival Airshow Safety Zone; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within a box bounded by the following coordinates: 44°46′51.6″ N, 085°38′15.6″ W, 44°46′23.4″ N, 085°38′22.8″ W, 44°46′30.00″ N, 085°35′42.00″ W, and 44°46′2.34″ N, 085°35′50.4″ W This event historically occurs late June or early July. (6) National Cherry Festival Finale Fireworks; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 44°46′12″ N, 085°37′06″ W This event historically occurs late June or early July. (7) Canada Day Celebration Fireworks; Sault Sainte Marie, MI All U.S. navigable waters of the St. Marys River within an approximate 1400-foot radius from the fireworks launch site, centered approximately 160 yards north of the U.S. Army Corp of Engineers Soo Locks North East Pier, at position 46°30′20.40″ N, 084°20′17.64″ W On or around July 1. (8) Marquette Fourth of July Celebration Fireworks; Marquette, MI All U.S. navigable waters of Marquette Harbor within an approximate 1200-foot radius of the fireworks launch site, centered in position 46°32′23.0″ N, 087°23′13.1″ W On or around July 4th. (9) Munising Fourth of July Celebration Fireworks; Munising, MI All U.S. navigable waters of South Bay within an approximate 800-foot radius from the fireworks launch site at the end of the Munising City Dock, centered in position: 46°24′50.08″ N, 086°39′08.52″ W On or around July 4th. (10) Sault Sainte Marie Fourth of July Celebration Fireworks; Sault Sainte Marie, MI All U.S. navigable waters of the St. Marys River within an approximate 1000-foot radius around the eastern portion of the U.S. Army Corp of Engineers Soo Locks North East Pier, centered in position: 46°30′19.66″ N, 084°20′31.61″ W On or around July 4th. (11) Mackinac Island Fourth of July Celebration Fireworks; Mackinac Island, MI All U.S. navigable waters of Lake Huron within an approximate 750-foot radius of the fireworks launch site, centered approximately 1000 yards west of Round Island Passage Light, at position 45°50′34.92″ N, 084°37′38.16″ W On or around July 4th. (12) Harbor Springs Fourth of July Celebration Fireworks; Harbor Springs, MI All U.S. navigable waters of Lake Michigan and Harbor Springs Harbor within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 45°25′30″ N, 084°59′06″ W On or around July 4th. (13) Bay Harbor Yacht Club Fourth of July Celebration Fireworks; Petoskey, MI All U.S. navigable waters of Lake Michigan and Bay Harbor Lake within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located on a barge in position 45°21′50″ N, 085°01′37″ W On or around July 4th. (14) Petoskey Fourth of July Celebration Fireworks; Petoskey, MI All U.S. navigable waters of Lake Michigan and Petoskey Harbor, in the vicinity of Bay Front Park, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located in position 45°22′40″ N, 084°57′30″ W On or around July 4th. (15) Boyne City Fourth of July Celebration Fireworks; Boyne City, MI All U.S. navigable waters of Lake Charlevoix, in the vicinity of Veterans Park, within the arc of a circle with an approximate 1400-foot radius from the fireworks launch site located in position 45°13′30″ N, 085°01′40″ W On or around July 4th. (16) Alpena Fourth of July Celebration Fireworks; Alpena, MI All U.S. navigable waters of Lake Huron within an approximate 1000-foot radius of the fireworks launch site located near the end of Mason Street, South of State Avenue, at position 45°02′42″ N, 083°26′48″ W On or around July 4th. (17) Traverse City Fourth of July Celebration Fireworks; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 44°46′12″ N, 085°37′06″ W On or around July 4th. (18) Charlevoix Venetian Festival Friday Night Fireworks; Charlevoix, MI All U.S. navigable waters of Lake Charlevoix, in the vicinity of Depot Beach, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 45°19′08″ N, 085°14′18″ W This event historically occurs in late July. (19) Charlevoix Venetian Saturday Night Fireworks; Charlevoix, MI All U.S. navigable waters of Round Lake within the arc of a circle with an approximate 500-foot radius from the fireworks launch site located on a barge in position 45°19′03″ N, 085°15′18″ W This event historically occurs in late July. (20) Elk Rapids Harbor Days Fireworks; Elk Rapids, MI All U.S. navigable waters within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located on a barge in position 44°54′6.95″ N, 85°25′3.11″ W This event historically occurs in early August. (21) Nautical City Fireworks; Rogers City All U.S. navigable waters within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located near Harbor View Road in position 45°25′04.72″ N, 83°47′51.21″ W Early August.
Dated: April 23, 2018. M.R. Broz, Captain, U.S. Coast Guard, Captain of the Port Sault Sainte Marie.
[FR Doc. 2018-08840 Filed 4-26-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF EDUCATION 34 CFR Parts 75 and 77 RIN 1855-AA13 Definitions and Selection Criteria That Apply to Direct Grant Programs AGENCY:

Department of Education.

ACTION:

Final rule.

SUMMARY:

On July 31, 2017, the Department of Education (Department) issued a new rule in order to better align the Education Department General Administrative Regulations (EDGAR) with the definition of “evidence-based” in the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESEA). Through this document, we are adding a selection factor that was inadvertently omitted and removing an outdated definition.

DATES:

Effective date: These regulations are effective April 27, 2018.

FOR FURTHER INFORMATION CONTACT:

Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202-5900. Telephone: (202) 205-5231 or by email: [email protected]

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

SUPPLEMENTARY INFORMATION: Final Regulatory Changes

Background: On July 31, 2017, the Department published in the Federal Register a final rule (82 FR 35445) (2017 Rule) revising 34 CFR parts 75 and 77 to better align the regulations with the definition of “evidence-based” in the ESEA. In that rule, we inadvertently removed a selection factor and maintained an outdated definition. Therefore, the purpose of this document is to amend §§ 75.210(h) and 77.1(c) in order to correct those errors.

34 CFR Part 75 Section 75.210 General Selection Criteria

Current Regulations: Section 75.210(h) includes 13 factors under the “Quality of the Project Evaluation” selection criterion.

Final Regulations and Reasons: We are reinserting the selection factor under the “Quality of the Project Evaluation” criterion (§ 75.210(h)) focused on the extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes. This factor was inadvertently omitted from § 77.210(h), and we are making this revision to add it back in. We believe this factor continues to be an important one to include in the menu of selection criteria and factors available for use in discretionary grant programs. As noted in the 2017 Rule, the final regulations do not change the way the Secretary uses selection criteria and factors. The Secretary will continue to use selection criteria that are consistent with the purpose of the program and permitted under the applicable statutes and regulations.

34 CFR Part 77 Section 77.1 Definitions That Apply to All Department Programs

Current Regulations: Section 77.1(c) establishes definitions that, unless a statute or regulation provides otherwise, apply to the regulations in title 34 of the Code of Federal Regulations and can be used in Department grant competitions.

Final Regulations and Reasons: We are removing the term “randomized controlled trial” from § 77.1(c). We are removing this definition because, as noted in the 2017 Rule, it was our intent to replace it with the term “experimental study,” to align with the definition of “evidence-based,” in section 8101(21), specifically with regard to “strong evidence.” In the new definition of “strong evidence,” we clarified the types of studies that can qualify as experimental studies—including, but not limited to, randomized controlled trials—as provided in the applicable What Works Clearinghouse (WWC) Handbook.

Waiver of Proposed Rulemaking and Delayed Effective Date

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, these regulations make technical changes only and do not establish substantive policy. The regulations are, therefore, exempt from notice and comment rulemaking under 5 U.S.C. 553(b)(3)(B).

The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations are merely technical, there is good cause to make them effective on the day they are published.

Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

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

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

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

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

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

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

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2018, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. However, Executive Order 13771 does not apply to “transfer rules” that cause only income transfers between taxpayers and program beneficiaries, such as those regarding discretionary grant programs. The final regulations pertain to the Department's discretionary grant programs and, therefore, Executive Order 13771 is not applicable.

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

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

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

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

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

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

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

We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on an analysis of anticipated costs and benefits, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

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

Potential Costs and Benefits

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action and have determined that these regulations would not impose additional costs. We believe any additional costs imposed by these final regulations will be negligible, primarily because they reflect technical changes that do not impose additional burden. Moreover, we believe any costs will be significantly outweighed by the potential benefits of making necessary clarifications and ensuring consistency among the Education Department General Administrative Regulations and section 8101(21) of ESEA, as amended by the ESSA.

Regulatory Flexibility Act Certification

The Secretary certifies that these regulations do not have a significant economic impact on a substantial number of small entities.

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

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site, you can view this document, as well as all other documents of 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 this 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.

List of Subjects 34 CFR Part 75

Accounting, Copyright, Education, Grant programs—education, Inventions and patents, Private schools, Reporting and recordkeeping requirements, Youth organizations.

34 CFR Part 77

Education, Grant programs—education, Incorporation by reference.

Dated: April 24, 2018. Betsy DeVos, Secretary of Education.

For the reasons discussed in the preamble, the Secretary amends parts 75 and 77 of title 34 of the Code of Federal Regulations as follows:

PART 75—DIRECT GRANT PROGRAMS 1. The authority citation for part 75 continues to read as follows: Authority:

20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

2. Section 75.210 is amended by adding paragraph (h)(2)(xiv) to read as follows:
§ 75.210 General selection criteria.

(h) * * *

(2) * * *

(xiv) The extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes.

PART 77—DEFINITIONS THAT APPLY TO DEPARTMENT REGULATIONS 3. The authority citation for part 77 continues to read as follows: Authority:

20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

§ 77.1 [Amended]
4. Section 77.1(c) is amended by removing the definition of “randomized controlled trial.”
[FR Doc. 2018-08965 Filed 4-26-18; 8:45 am] BILLING CODE 4000-01-P
DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 8 RIN 2900-AQ03 Eligibility for Supplemental Service-Disabled Veterans' Insurance AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA), in this final rule, amends its regulations governing the Service-Disabled Veterans' Insurance (S-DVI) program in order to explain that a person who was granted S-DVI as of the date of death is not eligible for supplemental S-DVI because the insured's total disability did not begin after the date of the insured's application for insurance and while the insurance was in force under premium-paying conditions.

DATES:

This rule is effective May 29, 2018.

FOR FURTHER INFORMATION CONTACT:

Paul Weaver, Department of Veterans Affairs Insurance Center (310/290B), 5000 Wissahickon Avenue, Philadelphia, PA 19144, (215) 842-2000, ext. 4263 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

On August 23, 2017, VA published a proposed rule in the Federal Register (82 FR 39974). VA provided a 60-day comment period on the proposed rule, which ended on October 23, 2017. VA received comments from five individuals. The commenters stated that they believed the proposed rule would unnecessarily restrict eligibility for supplemental S-DVI; eliminate insurance coverage for veterans; and is contrary to the congressional intent of the supplemental S-DVI legislation. We address their contentions below.

A. Insurance Coverage

One commenter stated that the rule would eliminate insurance coverage for many veterans. The regulation does not eliminate insurance coverage for insured veterans or those eligible to be insured under supplemental S-DVI. Rather, the rule clarifies VA's longstanding practice, which is dictated by 38 U.S.C. 1912(a) and 1922A(a), by explaining which veterans are ineligible for supplemental S-DVI consistent with the governing statutes. See Martin v. Shinseki, 26 Vet. App. 451 (2014). Therefore, VA will not make any changes based on this comment.

B. Eligibility for Supplemental S-DVI

Four commenters stated that the rule would restrict eligibility for supplemental S-DVI. Two of the commenters stated that the rule makes a blanket assessment that a mentally incompetent veteran is ineligible for supplemental S-DVI based on the assumption that the veteran would not have applied for the coverage. Another commenter stated that the rule discriminates against veterans who are incapable of applying for supplemental S-DVI prior to their date of death.

The rule is not based upon any assumption nor does it discriminate against certain veterans. As VA explained in the proposed rule, under 38 U.S.C. 1922A(a), a S-DVI insured is not entitled to supplemental S-DVI unless the insured qualifies for waiver of premiums under 38 U.S.C. 1912(a), and a veteran granted insurance under 38 U.S.C. 1922(b) cannot qualify for a waiver of premiums under § 1912(a) because the insured's total disability does not begin after the date of the insured's application for insurance and while the insurance is in force under premium-paying conditions. See 82 FR 39975. While section 1922(b) grants S-DVI posthumously, Congress did not include provisions in section 1922A to grant supplemental S-DVI to the survivors of veterans who were unable to apply for the insurance prior to death. See Martin, 26 Vet. App. at 458-59. VA will not make any changes based on these comments.

Two commenters stated that VA should revise the rule to prevent abuses rather than to eliminate eligibility for Supplemental S-DVI for all veterans granted S-DVI under section 1922(b). Both commenters stated that the point of the Martin decision was to prevent abuse of the system. We see no reference in the court's decision for prevention of abuse. Rather, the court's holdings are based on the plain language of the statutes. See 26 Vet. App. 458-49. Any VA rule that is inconsistent with the statutes would be invalid. We therefore decline to make any changes to the rule on this basis.

C. Congressional Intent

One of the commenters suggested that the rule makes numerous veterans ineligible for supplemental S-DVI, which is inconsistent with the intent of Congress and VA. The Veterans Court found that the language of 38 U.S.C. 1912(a) and 1922A(a) is plain, 26 Vet. App. at 458, and therefore the literal language is the “sole evidence of the ultimate legislative intent.” See Caminetti v. United States, 242 U.S. 470, 490 (1917). Sections 1912(a) and 1922A(a) unambiguously provide that supplemental S-DVI is only available to a person insured under S-DVI who qualifies for a waiver of premiums under section 1912, which requires that an insured's total disability have begun after the date of the insured's application for insurance and while the insurance is in force under premium-paying conditions. The court did not disregard the limiting language of the statutes and neither may VA. Therefore, VA will not make any changes based on this comment.

Based on the rationale set forth in the Federal Register, VA adopts the proposed rule, without change, as a final rule.

Executive Orders 12866, 13563, and 13771

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this final regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for “VA Regulations Published.” This rule is not an Executive Order 13771 regulatory action because the rule is not significant under Executive Order 12866.

Paperwork Reduction Act

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that the adoption of this final rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule would directly affect only individuals and would not directly affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

List of Subjects in 38 CFR Part 8

Life insurance, Veterans.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jacquelyn Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on March 20, 2018, for publication.

Dated: April 23, 2018. Jeffrey M. Martin, Impact Analyst, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 8 as set forth below:

PART 8—NATIONAL SERVICE LIFE INSURANCE 1. The authority citation for part 8 continues to read as follows: Authority:

38 U.S.C. 501(a), 1901-1929, 1981, 1988, unless otherwise noted.

2. Add § 8.34 to read as follows:
§ 8.34 Ineligibility for insurance under 38 U.S.C. 1922A (supplemental Service-Disabled Veterans' Insurance) if person insured under 38 U.S.C. 1922(b).

A person who is granted Service-Disabled Veterans' Insurance under 38 U.S.C. 1922(b) is not eligible for supplemental Service-Disabled Veterans' Insurance under 38 U.S.C. 1922A.

[FR Doc. 2018-08854 Filed 4-26-18; 8:45 am] BILLING CODE 8320-01-P
POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket Nos. MC2010-21 and CP2010-36] Update to Product List AGENCY:

Postal Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Commission is updating the competitive product list. This action reflects a publication policy adopted by Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The competitive product list, which is re-published in its entirety, includes these updates.

DATES:

Effective Date: April 27, 2018. For applicability dates, see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT:

David A. Trissell, General Counsel, at 202-789-6800.

SUPPLEMENTARY INFORMATION:

Applicability Dates

January 2, 2018, Priority Mail Contract 396 (MC2018-67 and CP2018-107); January 2, 2018, Priority Mail Contract 397 (MC2018-68 and CP2018-108); January 2, 2018, Priority Mail Contract 398 (MC2018-69 and CP2018-109); January 2, 2018, Priority Mail Contract 399 (MC2018-70 and CP2018-110); January 3, 2018, Parcel Select Contract 28 (MC2018-72 and CP2018-112); January 3, 2018, Parcel Select Contract 29 (MC2018-73 and CP2018-113); January 3, 2018, Priority Mail Express Contract 57 (MC2018-74 and CP2018-114); January 3, 2018, Priority Mail Contract 400 (MC2018-75 and CP2018-116); January 4, 2018, Parcel Select Contract 27 (MC2018-71 and CP2018-111); January 4, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 31 (MC2018-76 and CP2018-118); January 4, 2018, Priority Mail Contract 401 (MC2018-77 and CP2018-119); January 4, 2018, First-Class Package Service Contract 89 (MC2018-78 and CP2018-120); January 4, 2018, First-Class Package Service Contract 90 (MC2018-79 and CP2018-121); January 4, 2018, Priority Mail Contract 402 (MC2018-80 and CP2018-122); January 5, 2018, Priority Mail Express & Priority Mail Contract 55 (MC2018-81 and CP2018-123); January 5, 2018, Priority Mail & First-Class Package Service Contract 67 (MC2018-82 and CP2018-124); January 5, 2018, Priority Mail & First-Class Package Service Contract 68 (MC2018-83 and CP2018-125); January 5, 2018, Priority Mail & First-Class Package Service Contract 69 (MC2018-84 and CP2018-126); January 5, 2018, Priority Mail & First-Class Package Service Contract 70 (MC2018-85 and CP2018-127); January 8, 2018, Priority Mail Express & Priority Mail Contract 56 (MC2018-86 and CP2018-128); January 8, 2018, Priority Mail Express & Priority Mail Contract 57 (MC2018-87 and CP2018-129); January 8, 2018, Priority Mail Express & Priority Mail Contract 58 (MC2018-88 and CP2018-130); January 8, 2018, Priority Mail Express & Priority Mail Contract 59 (MC2018-89 and CP2018-131); January 9, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 32 (MC2018-90 and CP2018-132); January 9, 2018, Priority Mail Express Contract 58 (MC2018-91 and CP2018-133); January 9, 2018, Priority Mail Express Contract 59 (MC2018-92 and CP2018-134); January 9, 2018, Priority Mail Express Contract 60 (MC2018-93 and CP2018-135); January 9, 2018, Priority Mail & First-Class Package Service Contract 71 (MC2018-94 and CP2018-136); January 11, 2018, Priority Mail & First-Class Package Service Contract 72 (MC2018-95 and CP2018-137); January 11, 2018, Priority Mail & First-Class Package Service Contract 73 (MC2018-96 and CP2018-138); January 11, 2018, First-Class Package Service Contract 91 (MC2018-97 and CP2018-139); January 11, 2018, Priority Mail Contract 403 (MC2018-98 and CP2018-140); January 11, 2018, Priority Mail Contract 404 (MC2018-99 and CP2018-141); January 11, 2018, Priority Mail Contract 405 (MC2018-100 and CP2018-142); January 11, 2018, Priority Mail Contract 406 (MC2018-101 and CP2018-143); January 11, 2018, Priority Mail Contract 407 (MC2018-102 and CP2018-144); January 11, 2018, Priority Mail Contract 408 (MC2018-103 and CP2018-145); January 12, 2018, Priority Mail Contract 409 (MC2018-104 and CP2018-146); January 12, 2018, Priority Mail Contract 410 (MC2018-105 and CP2018-147); January 12, 2018, Priority Mail Contract 411 (MC2018-106 and CP2018-148); January 12, 2018, Priority Mail Contract 412 (MC2018-107 and CP2018-149); January 16, 2018, Priority Mail Contract 415 (MC2018-110 and CP2018-152); January 16, 2018, Priority Mail Contract 416 (MC2018-111 and CP2018-153); January 16, 2018, Priority Mail Express Contract 61 (MC2018-113 and CP2018-155); January 17, 2018, Priority Mail Contract 418 (MC2018-116 and CP2018-158); January 17, 2018, Priority Mail Contract 420 (MC2018-118 and CP2018-160); January 17, 2018, Priority Mail Contract 417 (MC2018-112 and CP2018-154); January 17, 2018, Priority Mail Express & Priority Mail Contract 60 (MC2018-114 and CP2018-156); January 17, 2018, Priority Mail Express & First-Class Package Service Contract 1 (MC2018-115 and CP2018-157); January 18, 2018, Priority Mail Express & Priority Mail Contract 61 (MC2018-119 and CP2018-162); January 18, 2018, Priority Mail Express & First-Class Package Service Contract 2 (MC2018-120 and CP2018-163); January 19, 2018, Priority Mail Contract 413 (MC2018-108 and CP2018-150); January 19, 2018, Priority Mail Contract 414 (MC2018-109 and CP2018-151); January 19, 2018, Priority Mail Contract 419 (MC2018-117 and CP2018-159); February 13, 2018, Priority Mail & First-Class Package Service Contract 74 (MC2018-121 and CP2018-164); February 13, 2018, Parcel Select Contract 30 (MC2018-122 and CP2018-165); February 14, 2018, Priority Mail Contract 421 (MC2018-123 and CP2018-166); February 22, 2018, Priority Mail & First-Class Package Service Contract 75 (MC2018-124 and CP2018-169); February 28, 2018, Global Expedited Package Services (GEPS)—Non-Published Rates 13 (MC2018-125 and CP2018-170); March 6, 2018, Priority Mail Contract 422 (MC2018-126 and CP2018-172); March 9, 2018, Priority Mail & First-Class Package Service Contract 76 (MC2018-127 and CP2018-173); March 20, 2018, Priority Mail Contract 423 (MC2018-128 and CP2018-178); March 20, 2018, Priority Mail Express & Priority Mail Contract 62 (MC2018-129 and CP2018-179); March 20, 2018, Priority Mail Contract 424 (MC2018-130 and CP2018-180); March 27, 2018, Priority Mail Contract 425 (MC2018-131 and CP2018-182); March 27, 2018, Priority Mail Express & Priority Mail Contract 63 (MC2018-132 and CP2018-183).

This document identifies updates to the competitive product list, which appears as 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. Publication of the updated product list in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

Changes. The competitive product list is being updated by publishing a replacement in its entirety of 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. The following products are being added, removed, or moved within the competitive product list:

Competitive Product List

1. Priority Mail Contract 396 (MC2018-67 and CP2018-107) (Order No. 4324), added January 2, 2018.

2. Priority Mail Contract 397 (MC2018-68 and CP2018-108) (Order No. 4325), added January 2, 2018.

3. Priority Mail Contract 398 (MC2018-69 and CP2018-109) (Order No. 4326), added January 2, 2018.

4. Priority Mail Contract 399 (MC2018-70 and CP2018-110) (Order No. 4327), added January 2, 2018.

5. Parcel Select Contract 28 (MC2018-72 and CP2018-112) (Order No. 4328), added January 3, 2018.

6. Parcel Select Contract 29 (MC2018-73 and CP2018-113) (Order No. 4329), added January 3, 2018.

7. Priority Mail Express Contract 57 (MC2018-74 and CP2018-114) (Order No. 4330), added January 3, 2018.

8. Priority Mail Contract 400 (MC2018-75 and CP2018-116) (Order No. 4331), added January 3, 2018.

9. Parcel Select Contract 27 (MC2018-71 and CP2018-111) (Order No. 4335), added January 4, 2018.

10. Priority Mail Express, Priority Mail & First-Class Package Service Contract 31 (MC2018-76 and CP2018-118) (Order No. 4336), added January 4, 2018.

11. Priority Mail Contract 401 (MC2018-77 and CP2018-119) (Order No. 4337), added January 4, 2018.

12. First-Class Package Service Contract 89 (MC2018-78 and CP2018-120) (Order No. 4338), added January 4, 2018.

13. First-Class Package Service Contract 90 (MC2018-79 and CP2018-121) (Order No. 4339), added January 4, 2018.

14. Priority Mail Contract 402 (MC2018-80 and CP2018-122) (Order No. 4340), added January 4, 2018.

15. Priority Mail Express & Priority Mail Contract 55 (MC2018-81 and CP2018-123) (Order No. 4342), added January 5, 2018.

16. Priority Mail & First-Class Package Service Contract 67 (MC2018-82 and CP2018-124) (Order No. 4343), added January 5, 2018.

17. Priority Mail & First-Class Package Service Contract 68 (MC2018-83 and CP2018-125) (Order No. 4344), added January 5, 2018.

18. Priority Mail & First-Class Package Service Contract 69 (MC2018-84 and CP2018-126) (Order No. 4345), added January 5, 2018.

19. Priority Mail & First-Class Package Service Contract 70 (MC2018-85 and CP2018-127) (Order No. 4346), added January 5, 2018.

20. Priority Mail Express & Priority Mail Contract 56 (MC2018-86 and CP2018-128) (Order No. 4348), added January 8, 2018.

21. Priority Mail Express & Priority Mail Contract 57 (MC2018-87 and CP2018-129) (Order No. 4349), added January 8, 2018.

22. Priority Mail Express & Priority Mail Contract 58 (MC2018-88 and CP2018-130) (Order No. 4350), added January 8, 2018.

23. Priority Mail Express & Priority Mail Contract 59 (MC2018-89 and CP2018-131) (Order No. 4351), added January 8, 2018.

24. Priority Mail Express, Priority Mail & First-Class Package Service Contract 32 (MC2018-90 and CP2018-132) (Order No. 4353), added January 9, 2018.

25. Priority Mail Express Contract 58 (MC2018-91 and CP2018-133) (Order No. 4354), added January 9, 2018.

26. Priority Mail Express Contract 59 (MC2018-92 and CP2018-134) (Order No. 4355), added January 9, 2018.

27. Priority Mail Express Contract 60 (MC2018-93 and CP2018-135) (Order No. 4356), added January 9, 2018.

28. Priority Mail & First-Class Package Service Contract 71 (MC2018-94 and CP2018-136) (Order No. 4357), added January 9, 2018.

29. Priority Mail & First-Class Package Service Contract 72 (MC2018-95 and CP2018-137) (Order No. 4359), added January 11, 2018.

30. Priority Mail & First-Class Package Service Contract 73 (MC2018-96 and CP2018-138) (Order No. 4360), added January 11, 2018.

31. First-Class Package Service Contract 91 (MC2018-97 and CP2018-139) (Order No. 4361), added January 11, 2018.

32. Priority Mail Contract 403 (MC2018-98 and CP2018-140) (Order No. 4362), added January 11, 2018.

33. Priority Mail Contract 404 (MC2018-99 and CP2018-141) (Order No. 4363), added January 11, 2018.

34. Priority Mail Contract 405 (MC2018-100 and CP2018-142) (Order No. 4364), added January 11, 2018.

35. Priority Mail Contract 406 (MC2018-101 and CP2018-143) (Order No. 4365), added January 11, 2018.

36. Priority Mail Contract 407 (MC2018-102 and CP2018-144) (Order No. 4366), added January 11, 2018.

37. Priority Mail Contract 408 (MC2018-103 and CP2018-145) (Order No. 4367), added January 11, 2018.

38. Priority Mail Contract 409 (MC2018-104 and CP2018-146) (Order No. 4369), added January 12, 2018.

39. Priority Mail Contract 410 (MC2018-105 and CP2018-147) (Order No. 4370), added January 12, 2018.

40. Priority Mail Contract 411 (MC2018-106 and CP2018-148) (Order No. 4371), added January 12, 2018.

41. Priority Mail Contract 412 (MC2018-107 and CP2018-149) (Order No. 4372), added January 12, 2018.

42. Priority Mail Contract 415 (MC2018-110 and CP2018-152) (Order No. 4373), added January 16, 2018.

43. Priority Mail Contract 416 (MC2018-111 and CP2018-153) (Order No. 4374), added January 16, 2018.

44. Priority Mail Express Contract 61 (MC2018-113 and CP2018-155) (Order No. 4375), added January 16, 2018.

45. Priority Mail Contract 418 (MC2018-116 and CP2018-158) (Order No. 4378), added January 17, 2018.

46. Priority Mail Contract 420 (MC2018-118 and CP2018-160) (Order No. 4379), added January 17, 2018.

47. Priority Mail Contract 417 (MC2018-112 and CP2018-154) (Order No. 4380), added January 17, 2018.

48. Priority Mail Express & Priority Mail Contract 60 (MC2018-114 and CP2018-156) (Order No. 4381), added January 17, 2018.

49. Priority Mail Express & First-Class Package Service Contract 1 (MC2018-115 and CP2018-157) (Order No. 4382), added January 17, 2018.

50. Priority Mail Express & Priority Mail Contract 61 (MC2018-119 and CP2018-162) (Order No. 4384), added January 18, 2018.

51. Priority Mail Express & First-Class Package Service Contract 2 (MC2018-120 and CP2018-163) (Order No. 4387), added January 18, 2018.

52. Priority Mail Contract 413 (MC2018-108 and CP2018-150) (Order No. 4388), added January 19, 2018.

53. Priority Mail Contract 414 (MC2018-109 and CP2018-151) (Order No. 4389), added January 19, 2018.

54. Priority Mail Contract 419 (MC2018-117 and CP2018-159) (Order No. 4390), added January 19, 2018.

55. Priority Mail & First-Class Package Service Contract 74 (MC2018-121 and CP2018-164) (Order No. 4405), added February 13, 2018.

56. Parcel Select Contract 30 (MC2018-122 and CP2018-165) (Order No. 4406), added February 13, 2018.

57. Priority Mail Contract 421 (MC2018-123 and CP2018-166) (Order No. 4407), added February 14, 2018.

58. Priority Mail & First-Class Package Service Contract 75 (MC2018-124 and CP2018-169) (Order No. 4415), added February 22, 2018.

59. Global Expedited Package Services (GEPS)—Non-Published Rates 13 (MC2018-125 and CP2018-170) (Order No. 4423), added February 28, 2018.

60. Priority Mail Contract 422 (MC2018-126 and CP2018-172) (Order No. 4427), added March 6, 2018.

61. Priority Mail & First-Class Package Service Contract 76 (MC2018-127 and CP2018-173) (Order No. 4429), added March 9, 2018.

62. Priority Mail Contract 423 (MC2018-128 and CP2018-178) (Order No. 4436), added March 20, 2018.

63. Priority Mail Express & Priority Mail Contract 62 (MC2018-129 and CP2018-179) (Order No. 4437), added March 20, 2018.

64. Priority Mail Contract 424 (MC2018-130 and CP2018-180) (Order No. 4438), added March 20, 2018.

65. Priority Mail Contract 425 (MC2018-131 and CP2018-182) (Order No. 4445), added March 27, 2018.

66. Priority Mail Express & Priority Mail Contract 63 (MC2018-132 and CP2018-183) (Order No. 4446), added March 27, 2018.

The following negotiated service agreements have expired, or have been terminated early, and are being deleted from the Competitive Product List:

1. Priority Mail Contract 85 (MC2014-34 and CP2014-60) (Order No. 2141).

2. Priority Mail Contract 93 (MC2014-47 and CP2014-83) (Order No. 2203).

3. Priority Mail Contract 98 (MC2015-6 and CP2015-7) (Order No. 2241).

4. Priority Mail Express Contract 20 (MC2015-12 and CP2015-15) (Order No. 2273).

5. Priority Mail Contract 99 (MC2015-9 and CP2015-12) (Order No. 2276).

6. Priority Mail Contract 106 (MC2015-25 and CP2015-34) (Order No. 2355).

7. Priority Mail Contract 107 (MC2015-26 and CP2015-35) (Order No. 2356).

8. Priority Mail Contract 113 (MC2015-33 and CP2015-43) (Order No. 2371).

9. Priority Mail Contract 117 (MC2015-37 and CP2015-48) (Order No. 2396).

10. Priority Mail Contract 115 (MC2015-35 and CP2015-46) (Order No. 2399).

11. Priority Mail Express & Priority Mail Contract 40 (MC2017-64 and CP2017-92) (Order No. 3728).

12. Priority Mail Contract 296 (MC2017-94 and CP2017-129) (Order No. 3815).

Updated product list. The referenced changes to the competitive product list is incorporated into 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List.

List of Subjects in 39 CFR Part 3020

Administrative practice and procedure, Postal Service.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority:

39 U.S.C. 503; 3622; 3631; 3642; 3682.

2. Revise Appendix B to Subpart A of Part 3020—Competitive Product List to read as follows: Appendix B to Subpart A of Part 3020—Competitive Product List

(An asterisk (*) indicates an organizational group, not a Postal Service product.)

Domestic Products * Priority Mail Express Priority Mail Parcel Select Parcel Return Service First-Class Package Service USPS Retail Ground International Products * Outbound International Expedited Services Inbound Parcel Post (at UPU rates) Outbound Priority Mail International International Priority Airmail (IPA) International Surface Air List (ISAL) International Direct Sacks—M-Bags Outbound Single-Piece First-Class Package International Service Negotiated Service Agreements * Domestic * Priority Mail Express Contract 16 Priority Mail Express Contract 23 Priority Mail Express Contract 26 Priority Mail Express Contract 27 Priority Mail Express Contract 28 Priority Mail Express Contract 29 Priority Mail Express Contract 30 Priority Mail Express Contract 31 Priority Mail Express Contract 32 Priority Mail Express Contract 34 Priority Mail Express Contract 35 Priority Mail Express Contract 36 Priority Mail Express Contract 37 Priority Mail Express Contract 38 Priority Mail Express Contract 39 Priority Mail Express Contract 40 Priority Mail Express Contract 41 Priority Mail Express Contract 42 Priority Mail Express Contract 43 Priority Mail Express Contract 44 Priority Mail Express Contract 45 Priority Mail Express Contract 46 Priority Mail Express Contract 47 Priority Mail Express Contract 48 Priority Mail Express Contract 49 Priority Mail Express Contract 50 Priority Mail Express Contract 51 Priority Mail Express Contract 52 Priority Mail Express Contract 53 Priority Mail Express Contract 54 Priority Mail Express Contract 55 Priority Mail Express Contract 56 Priority Mail Express Contract 57 Priority Mail Express Contract 58 Priority Mail Express Contract 59 Priority Mail Express Contract 60 Priority Mail Express Contract 61 Parcel Return Service Contract 5 Parcel Return Service Contract 6 Parcel Return Service Contract 7 Parcel Return Service Contract 8 Parcel Return Service Contract 9 Parcel Return Service Contract 10 Priority Mail Contract 77 Priority Mail Contract 78 Priority Mail Contract 80 Priority Mail Contract 94 Priority Mail Contract 110 Priority Mail Contract 111 Priority Mail Contract 119 Priority Mail Contract 121 Priority Mail Contract 123 Priority Mail Contract 125 Priority Mail Contract 126 Priority Mail Contract 127 Priority Mail Contract 130 Priority Mail Contract 131 Priority Mail Contract 132 Priority Mail Contract 133 Priority Mail Contract 134 Priority Mail Contract 136 Priority Mail Contract 137 Priority Mail Contract 138 Priority Mail Contract 140 Priority Mail Contract 141 Priority Mail Contract 144 Priority Mail Contract 145 Priority Mail Contract 146 Priority Mail Contract 148 Priority Mail Contract 149 Priority Mail Contract 150 Priority Mail Contract 153 Priority Mail Contract 154 Priority Mail Contract 155 Priority Mail Contract 156 Priority Mail Contract 157 Priority Mail Contract 158 Priority Mail Contract 159 Priority Mail Contract 160 Priority Mail Contract 161 Priority Mail Contract 163 Priority Mail Contract 164 Priority Mail Contract 166 Priority Mail Contract 167 Priority Mail Contract 168 Priority Mail Contract 169 Priority Mail Contract 170 Priority Mail Contract 171 Priority Mail Contract 172 Priority Mail Contract 174 Priority Mail Contract 175 Priority Mail Contract 176 Priority Mail Contract 177 Priority Mail Contract 178 Priority Mail Contract 179 Priority Mail Contract 180 Priority Mail Contract 181 Priority Mail Contract 185 Priority Mail Contract 186 Priority Mail Contract 188 Priority Mail Contract 189 Priority Mail Contract 190 Priority Mail Contract 191 Priority Mail Contract 192 Priority Mail Contract 193 Priority Mail Contract 194 Priority Mail Contract 195 Priority Mail Contract 196 Priority Mail Contract 197 Priority Mail Contract 198 Priority Mail Contract 199 Priority Mail Contract 200 Priority Mail Contract 201 Priority Mail Contract 202 Priority Mail Contract 203 Priority Mail Contract 204 Priority Mail Contract 205 Priority Mail Contract 206 Priority Mail Contract 207 Priority Mail Contract 208 Priority Mail Contract 209 Priority Mail Contract 210 Priority Mail Contract 211 Priority Mail Contract 212 Priority Mail Contract 213 Priority Mail Contract 215 Priority Mail Contract 216 Priority Mail Contract 217 Priority Mail Contract 218 Priority Mail Contract 219 Priority Mail Contract 220 Priority Mail Contract 221 Priority Mail Contract 222 Priority Mail Contract 223 Priority Mail Contract 224 Priority Mail Contract 225 Priority Mail Contract 226 Priority Mail Contract 227 Priority Mail Contract 229 Priority Mail Contract 230 Priority Mail Contract 231 Priority Mail Contract 232 Priority Mail Contract 233 Priority Mail Contract 234 Priority Mail Contract 235 Priority Mail Contract 236 Priority Mail Contract 237 Priority Mail Contract 238 Priority Mail Contract 239 Priority Mail Contract 240 Priority Mail Contract 242 Priority Mail Contract 243 Priority Mail Contract 244 Priority Mail Contract 245 Priority Mail Contract 246 Priority Mail Contract 247 Priority Mail Contract 248 Priority Mail Contract 249 Priority Mail Contract 250 Priority Mail Contract 251 Priority Mail Contract 252 Priority Mail Contract 253 Priority Mail Contract 254 Priority Mail Contract 255 Priority Mail Contract 256 Priority Mail Contract 257 Priority Mail Contract 258 Priority Mail Contract 259 Priority Mail Contract 260 Priority Mail Contract 261 Priority Mail Contract 262 Priority Mail Contract 263 Priority Mail Contract 264 Priority Mail Contract 265 Priority Mail Contract 266 Priority Mail Contract 267 Priority Mail Contract 268 Priority Mail Contract 269 Priority Mail Contract 270 Priority Mail Contract 271 Priority Mail Contract 272 Priority Mail Contract 273 Priority Mail Contract 274 Priority Mail Contract 275 Priority Mail Contract 276 Priority Mail Contract 277 Priority Mail Contract 278 Priority Mail Contract 279 Priority Mail Contract 280 Priority Mail Contract 281 Priority Mail Contract 282 Priority Mail Contract 283 Priority Mail Contract 284 Priority Mail Contract 285 Priority Mail Contract 286 Priority Mail Contract 287 Priority Mail Contract 288 Priority Mail Contract 289 Priority Mail Contract 290 Priority Mail Contract 291 Priority Mail Contract 292 Priority Mail Contract 293 Priority Mail Contract 294 Priority Mail Contract 295 Priority Mail Contract 297 Priority Mail Contract 298 Priority Mail Contract 299 Priority Mail Contract 300 Priority Mail Contract 301 Priority Mail Contract 302 Priority Mail Contract 303 Priority Mail Contract 304 Priority Mail Contract 305 Priority Mail Contract 306 Priority Mail Contract 307 Priority Mail Contract 308 Priority Mail Contract 309 Priority Mail Contract 310 Priority Mail Contract 311 Priority Mail Contract 312 Priority Mail Contract 313 Priority Mail Contract 314 Priority Mail Contract 315 Priority Mail Contract 316 Priority Mail Contract 317 Priority Mail Contract 318 Priority Mail Contract 319 Priority Mail Contract 320 Priority Mail Contract 321 Priority Mail Contract 322 Priority Mail Contract 323 Priority Mail Contract 324 Priority Mail Contract 325 Priority Mail Contract 326 Priority Mail Contract 327 Priority Mail Contract 328 Priority Mail Contract 329 Priority Mail Contract 330 Priority Mail Contract 331 Priority Mail Contract 332 Priority Mail Contract 333 Priority Mail Contract 334 Priority Mail Contract 335 Priority Mail Contract 336 Priority Mail Contract 337 Priority Mail Contract 338 Priority Mail Contract 339 Priority Mail Contract 340 Priority Mail Contract 341 Priority Mail Contract 342 Priority Mail Contract 343 Priority Mail Contract 344 Priority Mail Contract 345 Priority Mail Contract 346 Priority Mail Contract 347 Priority Mail Contract 348 Priority Mail Contract 349 Priority Mail Contract 350 Priority Mail Contract 351 Priority Mail Contract 352 Priority Mail Contract 353 Priority Mail Contract 354 Priority Mail Contract 355 Priority Mail Contract 356 Priority Mail Contract 357 Priority Mail Contract 358 Priority Mail Contract 359 Priority Mail Contract 360 Priority Mail Contract 361 Priority Mail Contract 362 Priority Mail Contract 363 Priority Mail Contract 364 Priority Mail Contract 365 Priority Mail Contract 367 Priority Mail Contract 368 Priority Mail Contract 369 Priority Mail Contract 370 Priority Mail Contract 371 Priority Mail Contract 372 Priority Mail Contract 373 Priority Mail Contract 374 Priority Mail Contract 375 Priority Mail Contract 376 Priority Mail Contract 377 Priority Mail Contract 378 Priority Mail Contract 379 Priority Mail Contract 380 Priority Mail Contract 381 Priority Mail Contract 382 Priority Mail Contract 383 Priority Mail Contract 384 Priority Mail Contract 385 Priority Mail Contract 386 Priority Mail Contract 387 Priority Mail Contract 388 Priority Mail Contract 389 Priority Mail Contract 390 Priority Mail Contract 391 Priority Mail Contract 392 Priority Mail Contract 393 Priority Mail Contract 394 Priority Mail Contract 395 Priority Mail Contract 396 Priority Mail Contract 397 Priority Mail Contract 398 Priority Mail Contract 399 Priority Mail Contract 400 Priority Mail Contract 401 Priority Mail Contract 402 Priority Mail Contract 403 Priority Mail Contract 404 Priority Mail Contract 405 Priority Mail Contract 406 Priority Mail Contract 407 Priority Mail Contract 408 Priority Mail Contract 409 Priority Mail Contract 410 Priority Mail Contract 411 Priority Mail Contract 412 Priority Mail Contract 413 Priority Mail Contract 414 Priority Mail Contract 415 Priority Mail Contract 416 Priority Mail Contract 417 Priority Mail Contract 418 Priority Mail Contract 419 Priority Mail Contract 420 Priority Mail Contract 421 Priority Mail Contract 422 Priority Mail Contract 423 Priority Mail Contract 424 Priority Mail Contract 425 Priority Mail Express & Priority Mail Contract 12 Priority Mail Express & Priority Mail Contract 13 Priority Mail Express & Priority Mail Contract 17 Priority Mail Express & Priority Mail Contract 18 Priority Mail Express & Priority Mail Contract 19 Priority Mail Express & Priority Mail Contract 20 Priority Mail Express & Priority Mail Contract 21 Priority Mail Express & Priority Mail Contract 22 Priority Mail Express & Priority Mail Contract 23 Priority Mail Express & Priority Mail Contract 24 Priority Mail Express & Priority Mail Contract 25 Priority Mail Express & Priority Mail Contract 27 Priority Mail Express & Priority Mail Contract 28 Priority Mail Express & Priority Mail Contract 29 Priority Mail Express & Priority Mail Contract 30 Priority Mail Express & Priority Mail Contract 31 Priority Mail Express & Priority Mail Contract 32 Priority Mail Express & Priority Mail Contract 33 Priority Mail Express & Priority Mail Contract 34 Priority Mail Express & Priority Mail Contract 35 Priority Mail Express & Priority Mail Contract 36 Priority Mail Express & Priority Mail Contract 37 Priority Mail Express & Priority Mail Contract 38 Priority Mail Express & Priority Mail Contract 39 Priority Mail Express & Priority Mail Contract 41 Priority Mail Express & Priority Mail Contract 42 Priority Mail Express & Priority Mail Contract 43 Priority Mail Express & Priority Mail Contract 44 Priority Mail Express & Priority Mail Contract 45 Priority Mail Express & Priority Mail Contract 46 Priority Mail Express & Priority Mail Contract 47 Priority Mail Express & Priority Mail Contract 48 Priority Mail Express & Priority Mail Contract 49 Priority Mail Express & Priority Mail Contract 50 Priority Mail Express & Priority Mail Contract 51 Priority Mail Express & Priority Mail Contract 52 Priority Mail Express & Priority Mail Contract 53 Priority Mail Express & Priority Mail Contract 54 Priority Mail Express & Priority Mail Contract 55 Priority Mail Express & Priority Mail Contract 56 Priority Mail Express & Priority Mail Contract 57 Priority Mail Express & Priority Mail Contract 58 Priority Mail Express & Priority Mail Contract 59 Priority Mail Express & Priority Mail Contract 60 Priority Mail Express & Priority Mail Contract 61 Priority Mail Express & Priority Mail Contract 62 Priority Mail Express & Priority Mail Contract 63 Parcel Select & Parcel Return Service Contract 3 Parcel Select & Parcel Return Service Contract 5 Parcel Select & Parcel Return Service Contract 6 Parcel Select Contract 2 Parcel Select Contract 8 Parcel Select Contract 9 Parcel Select Contract 10 Parcel Select Contract 11 Parcel Select Contract 12 Parcel Select Contract 13 Parcel Select Contract 14 Parcel Select Contract 15 Parcel Select Contract 16 Parcel Select Contract 17 Parcel Select Contract 18 Parcel Select Contract 19 Parcel Select Contract 20 Parcel Select Contract 21 Parcel Select Contract 22 Parcel Select Contract 23 Parcel Select Contract 24 Parcel Select Contract 25 Parcel Select Contract 26 Parcel Select Contract 27 Parcel Select Contract 28 Parcel Select Contract 29 Parcel Select Contract 30 Priority Mail—Non-Published Rates Priority Mail—Non-Published Rates 1 First-Class Package Service Contract 38 First-Class Package Service Contract 39 First-Class Package Service Contract 40 First-Class Package Service Contract 41 First-Class Package Service Contract 42 First-Class Package Service Contract 43 First-Class Package Service Contract 44 First-Class Package Service Contract 45 First-Class Package Service Contract 46 First-Class Package Service Contract 47 First-Class Package Service Contract 48 First-Class Package Service Contract 49 First-Class Package Service Contract 50 First-Class Package Service Contract 51 First-Class Package Service Contract 52 First-Class Package Service Contract 53 First-Class Package Service Contract 54 First-Class Package Service Contract 55 First-Class Package Service Contract 57 First-Class Package Service Contract 59 First-Class Package Service Contract 60 First-Class Package Service Contract 61 First-Class Package Service Contract 62 First-Class Package Service Contract 63 First-Class Package Service Contract 64 First-Class Package Service Contract 65 First-Class Package Service Contract 66 First-Class Package Service Contract 67 First-Class Package Service Contract 68 First-Class Package Service Contract 69 First-Class Package Service Contract 71 First-Class Package Service Contract 72 First-Class Package Service Contract 73 First-Class Package Service Contract 74 First-Class Package Service Contract 75 First-Class Package Service Contract 76 First-Class Package Service Contract 77 First-Class Package Service Contract 78 First-Class Package Service Contract 79 First-Class Package Service Contract 80 First-Class Package Service Contract 81 First-Class Package Service Contract 82 First-Class Package Service Contract 83 First-Class Package Service Contract 84 First-Class Package Service Contract 85 First-Class Package Service Contract 86 First-Class Package Service Contract 87 First-Class Package Service Contract 88 First-Class Package Service Contract 89 First-Class Package Service Contract 90 First-Class Package Service Contract 91 Priority Mail Express, Priority Mail & First-Class Package Service Contract 5 Priority Mail Express, Priority Mail & First-Class Package Service Contract 6 Priority Mail Express, Priority Mail & First-Class Package Service Contract 7 Priority Mail Express, Priority Mail & First-Class Package Service Contract 8 Priority Mail Express, Priority Mail & First-Class Package Service Contract 9 Priority Mail Express, Priority Mail & First-Class Package Service Contract 10 Priority Mail Express, Priority Mail & First-Class Package Service Contract 11 Priority Mail Express, Priority Mail & First-Class Package Service Contract 12 Priority Mail Express, Priority Mail & First-Class Package Service Contract 13 Priority Mail Express, Priority Mail & First-Class Package Service Contract14 Priority Mail Express, Priority Mail & First-Class Package Service Contract 15 Priority Mail Express, Priority Mail & First-Class Package Service Contract 16 Priority Mail Express, Priority Mail & First-Class Package Service Contract 17 Priority Mail Express, Priority Mail & First-Class Package Service Contract 18 Priority Mail Express, Priority Mail & First-Class Package Service Contract 19 Priority Mail Express, Priority Mail & First-Class Package Service Contract 20 Priority Mail Express, Priority Mail & First-Class Package Service Contract 21 Priority Mail Express, Priority Mail & First-Class Package Service Contract 22 Priority Mail Express, Priority Mail & First-Class Package Service Contract 23 Priority Mail Express, Priority Mail & First-Class Package Service Contract 24 Priority Mail Express, Priority Mail & First-Class Package Service Contract 25 Priority Mail Express, Priority Mail & First-Class Package Service Contract 26 Priority Mail Express, Priority Mail & First-Class Package Service Contract 27 Priority Mail Express, Priority Mail & First-Class Package Service Contract 28 Priority Mail Express, Priority Mail & First-Class Package Service Contract 29 Priority Mail Express, Priority Mail & First-Class Package Service Contract 30 Priority Mail Express, Priority Mail & First-Class Package Service Contract 31 Priority Mail Express, Priority Mail & First-Class Package Service Contract 32 Priority Mail & First-Class Package Service Contract 2 Priority Mail & First-Class Package Service Contract 4 Priority Mail & First-Class Package Service Contract 6 Priority Mail & First-Class Package Service Contract 7 Priority Mail & First-Class Package Service Contract 8 Priority Mail & First-Class Package Service Contract 9 Priority Mail & First-Class Package Service Contract 10 Priority Mail & First-Class Package Service Contract 11 Priority Mail & First-Class Package Service Contract 13 Priority Mail & First-Class Package Service Contract 15 Priority Mail & First-Class Package Service Contract 16 Priority Mail & First-Class Package Service Contract 17 Priority Mail & First-Class Package Service Contract 18 Priority Mail & First-Class Package Service Contract 19 Priority Mail & First-Class Package Service Contract 20 Priority Mail & First-Class Package Service Contract 21 Priority Mail & First-Class Package Service Contract 22 Priority Mail & First-Class Package Service Contract 23 Priority Mail & First-Class Package Service Contract 24 Priority Mail & First-Class Package Service Contract 25 Priority Mail & First-Class Package Service Contract 26 Priority Mail & First-Class Package Service Contract 27 Priority Mail & First-Class Package Service Contract 28 Priority Mail & First-Class Package Service Contract 29 Priority Mail & First-Class Package Service Contract 30 Priority Mail & First-Class Package Service Contract 31 Priority Mail & First-Class Package Service Contract 32 Priority Mail & First-Class Package Service Contract 33 Priority Mail & First-Class Package Service Contract 34 Priority Mail & First-Class Package Service Contract 35 Priority Mail & First-Class Package Service Contract 36 Priority Mail & First-Class Package Service Contract 37 Priority Mail & First-Class Package Service Contract 38 Priority Mail & First-Class Package Service Contract 39 Priority Mail & First-Class Package Service Contract 40 Priority Mail & First-Class Package Service Contract 41 Priority Mail & First-Class Package Service Contract 42 Priority Mail & First-Class Package Service Contract 43 Priority Mail & First-Class Package Service Contract 44 Priority Mail & First-Class Package Service Contract 45 Priority Mail & First-Class Package Service Contract 46 Priority Mail & First-Class Package Service Contract 47 Priority Mail & First-Class Package Service Contract 48 Priority Mail & First-Class Package Service Contract 49 Priority Mail & First-Class Package Service Contract 50 Priority Mail & First-Class Package Service Contract 51 Priority Mail & First-Class Package Service Contract 52 Priority Mail & First-Class Package Service Contract 53 Priority Mail & First-Class Package Service Contract 54 Priority Mail & First-Class Package Service Contract 55 Priority Mail & First-Class Package Service Contract 56 Priority Mail & First-Class Package Service Contract 57 Priority Mail & First-Class Package Service Contract 58 Priority Mail & First-Class Package Service Contract 59 Priority Mail & First-Class Package Service Contract 60 Priority Mail & First-Class Package Service Contract 61 Priority Mail & First-Class Package Service Contract 62 Priority Mail & First-Class Package Service Contract 63 Priority Mail & First-Class Package Service Contract 64 Priority Mail & First-Class Package Service Contract 65 Priority Mail & First-Class Package Service Contract 66 Priority Mail & First-Class Package Service Contract 67 Priority Mail & First-Class Package Service Contract 68 Priority Mail & First-Class Package Service Contract 69 Priority Mail & First-Class Package Service Contract 70 Priority Mail & First-Class Package Service Contract 71 Priority Mail & First-Class Package Service Contract 72 Priority Mail & First-Class Package Service Contract 73 Priority Mail & First-Class Package Service Contract 74 Priority Mail & First-Class Package Service Contract 75 Priority Mail & First-Class Package Service Contract 76 Priority Mail & Parcel Select Contract 1 Priority Mail & Parcel Select Contract 2 Priority Mail Express & First-Class Package Service Contract 1 Priority Mail Express & First-Class Package Service Contract 2 Outbound International * Global Expedited Package Services (GEPS) Contracts GEPS 3 GEPS 5 GEPS 6 GEPS 7 GEPS 8 GEPS 9 Global Bulk Economy (GBE) Contracts Global Plus Contracts Global Plus 1C Global Plus 1D Global Plus 1E Global Plus 2C Global Plus 3 Global Reseller Expedited Package Contracts Global Reseller Expedited Package Services 1 Global Reseller Expedited Package Services 2 Global Reseller Expedited Package Services 3 Global Reseller Expedited Package Services 4 Global Expedited Package Services (GEPS)—Non-Published Rates Global Expedited Package Services (GEPS)—Non-Published Rates 2 Global Expedited Package Services (GEPS)—Non-Published Rates 3 Global Expedited Package Services (GEPS)—Non-Published Rates 4 Global Expedited Package Services (GEPS)—Non-Published Rates 5 Global Expedited Package Services (GEPS)—Non-Published Rates 6 Global Expedited Package Services (GEPS)—Non-Published Rates 7 Global Expedited Package Services (GEPS)—Non-Published Rates 8 Global Expedited Package Services (GEPS)—Non-Published Rates 9 Global Expedited Package Services (GEPS)—Non-Published Rates 10 Global Expedited Package Services (GEPS)—Non-Published Rates 11 Global Expedited Package Services (GEPS)—Non-Published Rates 12 Global Expedited Package Services (GEPS)—Non-Published Rates 13 Priority Mail International Regional Rate Boxes—Non-Published Rates Outbound Competitive International Merchandise Return Service Agreement with Royal Mail Group, Ltd. Priority Mail International Regional Rate Boxes Contracts Priority Mail International Regional Rate Boxes Contracts 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 2 Alternative Delivery Provider (ADP) Contracts ADP 1 Alternative Delivery Provider Reseller (ADPR) Contracts ADPR 1 Inbound International * International Business Reply Service (IBRS) Competitive Contracts International Business Reply Service Competitive Contract 1 International Business Reply Service Competitive Contract 3 Inbound Direct Entry Contracts with Customers Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations 1 Inbound EMS Inbound EMS 2 Inbound Air Parcel Post (at non-UPU rates) Royal Mail Group Inbound Air Parcel Post Agreement Inbound Competitive Multi-Service Agreements with Foreign Postal Operators Inbound Competitive Multi-Service Agreements with Foreign Postal Operators 1 Special Services * Address Enhancement Services Greeting Cards, Gift Cards, and Stationery International Ancillary Services International Money Transfer Service—Outbound International Money Transfer Service—Inbound Premium Forwarding Service Shipping and Mailing Supplies Post Office Box Service Competitive Ancillary Services Nonpostal Services * Advertising Licensing of Intellectual Property other than Officially Licensed Retail Products (OLRP) Mail Service Promotion Officially Licensed Retail Products (OLRP) Passport Photo Service Photocopying Service Rental, Leasing, Licensing or other Non-Sale Disposition of Tangible Property Training Facilities and Related Services USPS Electronic Postmark (EPM) Program Market Tests * Customized Delivery Global eCommerce Marketplace (GeM)
Stacy L. Ruble, Secretary.
[FR Doc. 2018-08845 Filed 4-26-18; 8:45 am] BILLING CODE 7710-FW-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2017-0519; FRL-9977-04—Region 6] Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate Matter AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

Pursuant to the Federal Clean Air Act (CAA), the Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) submitted by the State of Texas to EPA on August 23, 2017, that pertain to particulate matter standards and outdoor burning regulations. This rulemaking action is being taken under Section 110 of the CAA.

DATES:

This rule is effective on July 26, 2018 without further notice, unless the EPA receives relevant adverse comment by May 29, 2018. If the EPA receives such comment, the EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket No. EPA-R06-OAR-2017-0519, at http://www.regulations.gov or via email to [email protected] Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Mr. Randy Pitre, (214) 665-7299, [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. Randy Pitre, 214-665-7299, [email protected] To inspect the hard copy materials, please schedule an appointment with Mr. Randy Pitre or Mr. Bill Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION:

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

I. Background

Section 110 of the CAA requires states to develop and submit to the EPA a SIP to ensure that state air quality meets National Ambient Air Quality Standards (NAAQS). These ambient standards currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin through air pollution regulations and control strategies. The EPA approved SIP regulations and control strategies are federally enforceable.

On August 23, 2017, the Texas Commission on Environmental Quality (TCEQ or “the State”) submitted revisions to the Texas SIP that address Control of Air Pollution from Visible Emissions and Particulate Matter requirements found in Title 30 of the Texas Administrative Code (30 TAC), Chapter 111 (Control of Air Pollution from Visible Emissions and Particulate Matter), Subchapter B (0utdoor Burning). The submitted revisions address two sections within Chapter 111: In section 111.203 (“Definitions”) and the State added a new section 111.217, titled “Requirements for Certified and Insured Prescribed Burn Managers.”

II. The EPA's Evaluation

As described in the Technical Support Document (TSD) accompanying this action, the TCEQ submitted revisions to 30 TAC Chapter 111, Subchapter B, Sections 203 and 217. The submittal revises 30 TAC 111.203 by adding two definitions: “Certified and Insured Prescribed Burn Manager” and “Sunrise/Sunset.” These new definitions enhance the SIP by establishing a responsible party for prescribed fire management and add clarity. Additional edits include renumbering to account for the new definitions and minor edits that add specificity.

The submittal also revises 30 TAC 111 by adding Section 217: “Requirements for Certified and Insured Prescribed Burn Managers.” This section describes the obligations regarding authority to direct a burn, allowable habitats for a burn, notification procedures, proximity to city/town limits, local ordinances, meteorological and temporal conditions, and items not permissible for burning. These revisions are consistent with Table 1 to 40 CFR 50.14.

Because these revisions include requirements that protect public health and property, and reduce or eliminate an impact from prescribed burning on the NAAQS, they improve the SIP. For these reasons, we do not believe such revisions would interfere with attainment of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA, and we find these revisions approvable. For more detail, please see the TSD for this action.

III. Final Action

We are approving the August 23, 2017, submittal that adopted amendments to the Texas SIP at 30 TAC Section 111.203 and 30 TAC Section 111.217.

The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on July 26, 2018 without further notice unless we receive relevant adverse comment by May 29, 2018. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. 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 now. 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 an adverse comment.

IV. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 6 Office (please contact Mr. Randy Pitre, 214-665-7299, [email protected] for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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 26, 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

Dated: April 19, 2018. Anne Idsal, Regional Administrator, Region 6.

40 CFR part 52 is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart SS—Texas 2. In § 52.2270(c) the table titled “EPA Approved Regulations in the Texas SIP” is amended by revising the entry for section 111.203 under Chapter 111, Subchapter B and adding an entry for section 111.217.

The amendments read as follows:

§ 52.2270 Identification of plan.

(c) * * *

EPA-Approved Regulations in the Texas SIP State citation Title/subject State
  • approval/
  • submittal
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Subchapter B: Outdoor Burning *         *         *         *         *         *         * Section 111.203 Definitions 7/7/2017 4/27/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Section 111.217 Requirements for Certified and Insured Prescribed Burn Managers 7/7/2017 4/27/2018, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-08662 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2003-0118; FRL-9977-05-OAR] Protection of Stratospheric Ozone: Notification of Guidance and a Stakeholder Meeting Concerning the Significant New Alternatives Policy (SNAP) Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of guidance and stakeholder meeting.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) is providing this document to dispel confusion and provide regulatory certainty for stakeholders affected by EPA's Significant New Alternatives Policy program final rule issued on July 20, 2015, and the decision of the Court of Appeals for the District of Columbia Circuit in the case of Mexichem Fluor, Inc. v. EPA. The 2015 Rule changed the listings for certain hydrofluorocarbons in various end-uses in the aerosols, refrigeration and air conditioning, and foam blowing sectors. It also changed the listings for certain hydrochlorofluorocarbons being phased out of production under the Montreal Protocol on Substances that Deplete the Ozone Layer and section 605 of the Clean Air Act. The court vacated the 2015 Rule “to the extent it requires manufacturers to replace HFCs with a substitute substance” and remanded the rule to EPA for further proceedings. This document provides guidance to stakeholders that, based on the court's partial vacatur, in the near-term EPA will not apply the HFC listings in the 2015 Rule, pending a rulemaking. This document also provides the Agency's plan to begin a notice-and-comment rulemaking process to address the remand of the 2015 Rule. The Agency is also providing notice of a stakeholder meeting as part of the rulemaking process.

    DATES:

    EPA will hold a stakeholder meeting on May 4, 2018 to enable stakeholders to provide input as the Agency prepares to engage in rulemaking to address the court's remand of the 2015 Rule. The meeting will be held at 9:30 a.m. to 12:30 p.m. ET on Friday, May 4, 2018 at EPA, William Jefferson Clinton East Building, Room 1153, 1201 Constitution Avenue NW, Washington, DC 20004. Information concerning this meeting will be available on the EPA website: https://www.epa.gov/snap. Please RSVP for this meeting by contacting Chenise Farquharson at [email protected] by April 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Chenise Farquharson, Stratospheric Protection Division, (6205T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-7768; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    This document provides information related to the EPA's Significant New Alternatives Policy (SNAP) program final rule (2015 Rule) issued on July 20, 2015 (80 FR 42870), and the decision of the Court of Appeals for the District of Columbia Circuit in the case of Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017). The 2015 Rule changed the listings for certain hydrofluorocarbons (HFCs) in various end-uses in the aerosols, refrigeration and air conditioning, and foam blowing sectors. The listings were changed from acceptable, or acceptable subject to use conditions, to unacceptable, or acceptable subject to narrowed use limits (i.e., acceptable only for limited uses for a specified period of time). The 2015 Rule also changed the listings for certain hydrochlorofluorocarbons (HCFCs) being phased out of production under the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) and section 605 of the Clean Air Act (CAA). The court vacated the 2015 Rule “to the extent it requires manufacturers to replace HFCs with a substitute substance” and remanded the rule to EPA for further proceedings.

    Through this document, EPA is taking three actions in response to the court's decision: (1) Providing guidance to stakeholders on how EPA will implement the court's partial vacatur of the 2015 Rule in the near term, pending a rulemaking; (2) providing information on the Agency's plan to address the court's remand of the 2015 Rule through rulemaking; and (3) providing notice of a stakeholder meeting to help inform the Agency as it begins developing a proposed rule in response to the court's remand. EPA is issuing guidance to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule; thus, this document may be of interest to the following:

    TABLE 1—Potentially Regulated Entities by North American Industrial Classification System (NAICS) Code Category NAICS code Description of regulated entities Industry 238220 Plumbing, Heating, and Air Conditioning Contractors. Industry 324191 Petroleum Lubricating Oil and Grease Manufacturing. Industry 325199 All Other Basic Organic Chemical Manufacturing. Industry 325412 Pharmaceutical Preparation Manufacturing. Industry 325510 Paint and Coating Manufacturing. Industry 325520 Adhesive Manufacturing. Industry 325612 Polishes and Other Sanitation Goods. Industry 325620 Toilet Preparation Manufacturing. Industry 325998 All Other Misscellaneous Chemical Product and Preparation Manufacturing. Industry 326140 Polystyrene Foam Product Manufacturing. Industry 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry 333415 Air Conditioning and Warm Air Heating Equipment and Commerial and Industrial Refrigeration Equipment Manufacturing. Industry 336211 Motor Vehicle Body Manufacturing. Industry 3363 Motor Vehicle Parts Manufacturing. Industry 336611 Ship Building and Repairing. Industry 336612 Boat Building. Industry 339113 Surgical Appliance and Supplies Manufacturing. Retail 423620 Household Appliances, Electric Housewares, and Consumer Electronics Merchant Wholesalers. Retail 423740 Refrigeration Equipment and Supplies Merchant Wholesalers. Retail 44511 Supermarkets and Other Grocery (except Convenience) Stores. Retail 445110 Supermarkets and Other Grocery (except Convenience) Stores. Retail 445120 Convenience Stores. Retail 44521 Meat Markets. Retail 44522 Fish and Seafood Markets. Retail 44523 Fruit and Vegetable Markets. Retail 445291 Baked Goods Stores. Retail 445292 Confectionary and Nut Stores. Retail 445299 All Other Specialty Foods Stores. Retail 4453 Beer, Wine, and Liqour Stores. Retail 446110 Pharmacies and Drug Stores. Retail 44711 Gasoline Stations with Convenience Stores. Retail 452910 Warehouse Clubs and Supercenters. Retail 452990 All Other General Merchandise Stores. Services 72111 Hotels (except Casino Hotels) and Motels. Services 72112 Casino Hotels. Retail 72241 Drinking Places (Alcoholic Beverages). Retail 722513 Limited-Service Restaurants. Retail 722514 Cafeterias, Grill Buffets, and Buffets. Retail 722515 Snack and Nonalcoholic Beverage Bars.

    This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be interested in this document.

    B. How can I get copies of this document and other related material?

    1. Docket. EPA has not established a new docket for this document. Publicly available information on the related 2015 Rule can be found under Docket ID No. EPA-HQ-OAR-2014-0198. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center 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 Air and Radiation Docket is (202) 566-1742.

    2. Electronic Access. You may access this Federal Register document electronically from the Government Printing Office under the “Federal Register” listings at FDSys (https://www.thefederalregister.org/fdsys/browse/collection.action?collectionCode=FR).

    II. How is EPA responding to the court's decision on the July 2015 SNAP final rule?

    Through this document, EPA is taking three actions in response to the court's decision: (1) Providing guidance to stakeholders on how EPA will implement the court's partial vacatur of the 2015 Rule in the near term, pending a rulemaking; (2) providing information on the Agency's plan to address the court's remand of the 2015 Rule through rulemaking; and (3) providing notice of a stakeholder meeting to help inform the Agency as it begins developing a proposed rule in response to the court's remand. As previously mentioned, EPA is issuing this guidance to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule. Specifically, until EPA completes a rulemaking addressing the remand, EPA will not apply the HFC listings in the 2015 Rule. While this guidance is intended to provide a clear statement of EPA's understanding of the court's vacatur in Mexichem, it is not intended to represent a definitive or final statement by the Agency on the court's decision as a whole. In fact, EPA anticipates that its actions in response to the decision will be informed by input from stakeholders and the notice-and-comment rulemaking process that will address the court's remand.

    A. Background

    The SNAP program implements section 612 of the Clean Air Act. Several major provisions of section 612 are:

    1. Rulemaking

    Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II (HCFC) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment and (2) is currently or potentially available.

    2. Listing of Unacceptable/Acceptable Substitutes

    Section 612(c) requires EPA to publish a list of the substitutes that it finds to be unacceptable for specific uses and to publish a corresponding list of acceptable substitutes for specific uses.

    3. Petition Process

    Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c).

    4. 90-Day Notification

    Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.

    In 1994, EPA published a rule setting forth the framework for administering the SNAP program (“1994 Framework Rule”) (59 FR 13044; March 18, 1994). Among other things, that rule established prohibitions on use of substitutes inconsistent with the SNAP listings, including a prohibition stating that “[n]o person may use a substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.” 40 CFR 82.174. The 1994 Framework Rule defined “use” broadly as “any use of a substitute for a Class 1 or Class II ozone-depleting compound, including but not limited to use in a manufacturing process or product, in consumption by the end-user, or in intermediate uses, such as formulation or packaging for other subsequent uses.” 40 CFR 82.172. Thus, for example, use encompasses not only the manufacture of equipment with a substitute, such as the manufacture of a foam-blowing system; it also includes the use of that foam system to blow the foam into another product, such as foam cushions, or to blow the foam as insulation in a building. EPA issued its initial listing decisions as part of the 1994 Framework Rule and has continued to list substitutes. The lists of fully acceptable substitutes are not included in the CFR but instead are available at https://www.epa.gov/snap/snap-substitutes-sector. All other listing decisions (i.e., unacceptable or with restrictions on use) are contained in tables provided in appendices to EPA's SNAP regulations (40 CFR part 82 subpart G). There are separate tables for each of the major industrial use sectors, including adhesives, coatings and inks; aerosols; cleaning solvents; fire suppression and explosion protection; foam blowing agents; refrigeration and air conditioning; and sterilants, as well as separate tables for each type of listing: acceptable with use conditions, acceptable subject to narrowed use limits or unacceptable.

    The 1994 Framework Rule, as implemented by EPA, has applied to all users (e.g., product manufacturers, intermediate users, end-users) within a regulated end-use without making distinctions between product manufacturers and other users or between those who were using ozone-depleting substances (ODS) at the time a substitute was listed as unacceptable and those who were not. The 2015 Rule, like all other actions EPA has taken implementing the 1994 Framework Rule over the last quarter-century, also made no such distinctions. It simply changed the listings for various previously listed substitutes.

    B. How is EPA implementing the court's partial vacatur of the 2015 Rule in the near term, pending rulemaking?

    In Mexichem Fluor v. EPA, the court “vacate[d] the 2015 Rule to the extent it requires manufacturers to replace HFCs with a substitute substance.” 866 F.3d at 464. For the reasons explained below, EPA will not apply the HFC use restrictions or unacceptability listings in the 2015 Rule for any purpose prior to completion of rulemaking. EPA's implementation of the court's vacatur pending rulemaking is intended to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule.

    Two chemical suppliers, Arkema and Mexichem (Petitioners), challenged the portion of the 2015 Rule that removed the listings of certain HFCs as acceptable, or acceptable subject to use conditions in certain end-uses, and listed those HFCs as unacceptable, or acceptable subject to narrowed use limits, in the same end-uses. The Petitioners raised two central arguments. First, they claimed that EPA did not have the authority to require that users of HFCs switch to another alternative. Second, they challenged the various listing decisions as “arbitrary and capricious.” The court rejected the Petitioners' arbitrary and capricious challenges but ruled that EPA did not have authority to “require manufacturers to replace HFCs with a substitute substance.” Id. at 464. The court determined that the word “replace” as used in CAA section 612(c) applies only to the immediate replacement of an ODS, stating that “manufacturers `replace' an ozone-depleting substance when they transition to making the same product with a substitute substance. After that transition has occurred, the replacement has been effectuated, and the manufacturer no longer makes a product that uses an ozone-depleting substance.” Id. at 459. Although the court's decision mainly discusses manufacturers, footnote 1 of the court's opinion indicates that “[the court's] interpretation of Section 612 applies to any regulated parties that must replace ozone-depleting substances within the timelines specified by Title VI.” 1 Id. at 457.

    1 Section 612(c) provides that “the Administrator shall promulgate rules under this section providing that it shall be unlawful to replace any class I or class II substance with any substitute substance” where the Administrator determines that a safer alternative is available.

    The language of the vacatur refers to “manufacturers” and to the replacement of HFCs. The opinion appears to use the term “manufacturers” in the sense of “product manufacturers.” See Id. at 460.2 However, nothing in the regulatory language promulgated as part of the challenged 2015 Rule draws a distinction between product manufacturers and other users of substitutes.3 Nor does the 2015 Rule draw a distinction between persons using HFCs and those using an ODS. The regulatory text included in the 2015 Rule is comprised solely of tables listing EPA's decision on certain substitutes for specific end-uses. Similarly, the 1994 Framework Rule distinguishes neither between product manufacturers and other users nor between someone using an HFC and someone using an ODS. For each specified end-use, the 2015 Rule, as issued, in conjunction with the 1994 Framework Rule, would prohibit any user from using a substitute listed as unacceptable—or from using, without adhering to narrowed use limits, a substitute listed as acceptable subject to such limits—after the relevant date. Thus, the SNAP regulations as currently written do not provide the distinctions that would be necessary to accommodate the letter of the court's vacatur. The narrower language used by the court does not exist in either the 2015 Rule or the 1994 Framework Rule; nor do the distinctions discussed above emerge when those two rules are read together.

    2 While “product” is not defined in the SNAP regulations, other portions of EPA's stratospheric protection regulations distinguish between “products” and “substances.” See, e.g, the definition of “controlled substance” at 40 CFR 82.3; the definitions of “product containing” and “manufactured with a controlled substance” at 40 CFR 82.106,

    3 Under the 1994 Framework Rule, EPA defined manufacturer as “any person engaged in the direct manufacture of a substitute.” 40 CFR 82.172. SNAP listing decisions, such as those at issue in the 2015 Rule, do not apply to manufacturers of the substitute but rather to the subsequent use of that substitute in a product or process or other use.

    The regulatory tables, which are the only regulatory text promulgated in the 2015 Rule, are comprised of individual listing decisions. Each listing of a substitute is comprised of at least four columns of information. The first column lists the regulated end-use, such as “Retail food refrigeration (supermarket systems) (new)” or “Rigid Polyurethane [Foam]: Appliance.” The second column lists the substitute or substitutes to which the listing decision applies. The third column identifies the “decision” (“Unacceptable” or “Acceptable subject to narrowed use limits”) and also identifies the date on which the listing decision will apply. The final column provides “Further information.” Each listing of a substitute as acceptable subject to narrowed use limits contains an additional column identifying the “Narrowed use limits.” This column identifies the limited uses for which the substitute remains acceptable for use (e.g., “military or space- and aeronautics-related applications” and the time period for which use remains acceptable (e.g., “Acceptable from January 1, 2017, until January 1, 2022”). Thus, for each listing decision there is no language that could be understood as being removed or struck out by the court so that some portion of the listing decision would remain in effect pending EPA's action on remand.

    While EPA could, on remand, rewrite the individual listings to create sub-listings for different types of users—e.g., separating out manufacturers, or separating out those still using ODS—such additions to the 2015 Rule would require notice-and-comment rulemaking. This situation contrasts with those where a court decision affects specific regulatory language, striking some of that language while leaving the remainder untouched. Here, there is simply no regulatory language that can be parsed in that manner. Nor is waiting to address the court's vacatur until the agency can complete notice-and-comment rulemaking a satisfactory solution. The court clearly intended to vacate the 2015 Rule to some “extent.” The mandate has issued; accordingly, the court's decision is now in effect.

    In addition, EPA is aware that regulated entities are experiencing substantial confusion and uncertainty regarding the meaning of the vacatur in a variety of specific situations. Since the court mandate issued, EPA has received a significant number of inquiries from equipment manufacturers, refrigerant producers, and various other users. Some have asked general questions regarding the effect of the partial vacatur of the 2015 Rule, while others have asked more specific questions about compliance both for those end-uses for which the compliance dates have passed and for those for which there is a future compliance date. For those end-uses with future compliance dates, these users are seeking guidance to help them make plans for future operations; if these users of HFCs would not be able to continue such use, they may need to take steps well in advance of the compliance date, such as researching and developing revised foam formulations; retooling manufacturing facilities; testing updated equipment or products to be certified to industry standards; and achieving compliance with fire codes. Other stakeholders have expressed confusion in understanding how the partial vacatur affects particular types of equipment that might fall under multiple end-uses, such as a stand-alone commercial refrigerator with foam insulation. Deferring answers to stakeholder questions until the completion of rulemaking would ignore the practical realities faced by the business community.

    In addition, attempting to draw the distinctions made by the court would present practical difficulties for implementation in advance of rulemaking. First, the SNAP regulations do not address what constitutes product manufacture. EPA went through a full notice-and-comment rulemaking to address that issue with respect to appliances for the purpose of regulations implementing the HCFC phaseout under section 605 of the Clean Air Act. See, e.g., “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” 74 FR 66439-66441 (Dec. 15, 2009). In that rulemaking, EPA recognized that while some appliances are shipped fully assembled and charged, others are assembled or charged in the field. With respect to the latter, there was ambiguity as to the point of manufacture and the identity of the manufacturer. EPA provided a definition to resolve that ambiguity in the context of those regulations. Without a clear definition of product manufacture in the SNAP context, there may be considerable ambiguity about who is the “manufacturer” for certain products—for example, supermarket refrigeration systems—and resulting confusion about the impacts of the court's decision.

    Moreover, in footnote 1 of the decision, the court indicates that the interpretation it adopts in the decision “applies to any regulated parties that must replace ozone-depleting substances.” This appears to extend the court's holding to apply to any user subject to the HFC listing changes, and not simply manufacturers. 866 F.3d at 457 (emphasis added). Implementing the vacatur more narrowly in the near term would not only raise practical implementation difficulties but likely would be inconsistent with the court's language in footnote 1.

    Second, neither the 1994 Framework Rule nor the 2015 Rule addresses the date by which a manufacturer must have switched to an HFC in order to avoid being subject to the 2015 Rule listing decisions. Possible dates could include the effective date of the 2015 Rule; the applicability date of the specific listing change; or the date on which the court's mandate issued. This lack of clarity could result in confusion about whether or not the listings in the 2015 Rule apply to individual manufacturers. Even if there were a clear date that would govern, there are currently no requirements for manufacturers to document the date of a change to an HFC; this lack of documentation would hinder the agency's ability to implement the rule as envisioned in the court's opinion, because it would not know whether or on what date manufacturers had made the switch.

    Third, because neither the 1994 Framework Rule nor the 2015 Rule creates a distinction between users using ODS and those using substitutes, neither rule addresses more complex situations in which both types of substances may be in use. Specifically, many manufacturers own multiple facilities, have multiple production lines at a single facility, make multiple different products or product models, or make products that can operate with either an ODS or a substitute. For example, a manufacturer of supermarket refrigeration equipment currently produces new equipment designed to operate with HFC blends or other non-ODS refrigerants and may assist its customers with retrofitting or replacing parts of existing supermarket systems using HCFC-22 or HCFC blends. Future rulemaking could address the numerous questions raised by these more complex situations—e.g., has a manufacturer switched to an HFC if one of multiple facilities is using an HFC or if one of multiple product lines is using an HFC? Alternatively, can the same manufacturer be considered to not yet have switched to HFCs if it still uses ODS in some of its facilities or product lines? Because the rules as written do not resolve these issues, there is no practical way to address these questions at this time.

    EPA recognizes that the court vacated the 2015 Rule “to the extent that” it requires manufacturers to replace HFCs. Based on its expertise in administering the SNAP regulations, and its understanding of the 2015 Rule, EPA concludes that the vacatur cannot be implemented by treating specific language in the HFC listings as struck by the court. Rather, the listing of HFC's as unacceptable, or acceptable subject to use restrictions, is the means by which the 2015 Rule “require[d] manufacturers to replace HFCs with a substitute substance.” Vacating the 2015 Rule “to the extent” that it imposed that requirement means vacating the listings. To apply the court's holding otherwise would be to drastically rewrite the 2015 Rule, and EPA believes that it would not be appropriate to undertake such a rewrite without undergoing notice and comment rulemaking. As explained above, those entities that have historically been regulated under the SNAP program are uncertain about what the court's decision means and which actions remain subject to regulation and which do not; the agency cannot remain silent on the implications of the court's vacatur until such time as the agency can complete a notice-and-comment rulemaking because of the considerable confusion and need for certainty that currently exist. Each HFC listing, as a unit, “requires manufacturers to replace HFCs with a substitute substance.” EPA therefore will implement the vacatur as affecting each HFC listing change in its entirety pending rulemaking to address the remand. Thus, EPA will not apply the HFC use restrictions or unacceptability listings in the 2015 Rule for any purpose prior to completion of rulemaking. Although EPA will implement the court's vacatur by treating it as striking the HFC listing changes in the 2015 Rule in their entirety, EPA recognizes that the court rejected the arbitrary and capricious challenges to the HFC listing changes. On remand, EPA intends to consider the appropriate way to address HFC listings under the SNAP program in light of the court's opinion.

    The 2015 Rule also contains HCFC listings that were not challenged by the Petitioners and that were not addressed by the court in Mexichem. Because those provisions were not challenged and were not addressed by the court, and because those listing decisions are severable from the HFC listings, we are choosing in the near term to continue upholding these provisions as remaining in effect. Each of the HCFC listings is a distinct unit, just as each of the HFC listings is a distinct unit. Indeed, the severability of the specific listings from each other contrasts with the non-severability of the particular effects of the rule on manufacturers singled out by the court in the narrower phrasing of its holding—another reason why EPA believes that footnote 1 of the opinion extends that holding to all users, in keeping with the structure of the regulations.

    C. What are EPA's plans for a rulemaking to address the court's remand?

    In Mexichem Fluor v. EPA, the court remanded the 2015 Rule to the Agency for further proceedings. While in this document EPA provides guidance on the effect of the vacatur on the 2015 Rule to address the immediate uncertainty, the larger implications of the court's opinion remanding the rule to the agency require further consideration. To address the court's remand, EPA will move forward with a notice-and-comment rulemaking and will seek input from interested stakeholders prior to developing a proposed rule.

    The court's interpretation of CAA section 612 raises potentially complex and difficult implementation questions for the SNAP program. EPA may consider the following as it prepares to undertake notice-and-comment rulemaking:

    • On remand, whether EPA should revisit specific provisions of the 1994 Framework Rule, such as those noted below, to establish distinctions between users still using ODS and those who have already replaced ODS:

    ○ The regulatory prohibitions (40 CFR 82.174) on use and introduction into interstate commerce

    ○ the notification requirements in the applicability section (40 CFR 82.176)

    ○ specific definitions, for example, the definitions of “substitute” and “use” (40 CFR 82.172). The current definition of “substitute” is “. . . any chemical, product substitute, or alternative manufacturing process, whether existing or new, intended for use as a replacement for a class I or II compound.” The current definition of “use” is “. . . any use of a substitute for a Class I or Class II ozone-depleting compound, including but not limited to use in a manufacturing process or product, in consumption by the end-user, or in intermediate uses, such as formulation or packaging for other subsequent uses.”

    • Whether EPA should revisit its practice of listing substitutes as acceptable subject to use conditions. Such listings allow the substitutes to be used only if certain conditions are met to ensure risks to human health and the environment are not significantly greater than for other available substitutes. For example, EPA has established use conditions for certain refrigerants to address flammability concerns across the same refrigeration end-uses. If use conditions would only apply to users switching from an ODS, EPA may consider whether to continue to list substitutes as acceptable subject to use conditions, given that some users would not be required to abide by the use conditions.

    • Whether EPA should distinguish between product manufacturers and other users, and if so, how EPA should address ambiguity about who is the manufacturer of certain products, such as those that are field-assembled or field-charged.

    • Whether EPA should revisit the regulations' applicability to certain end users. Historically, the SNAP program has applied to all users within an end-use, whether a product manufacturer, a servicing technician, or an end user of a substitute. For many end-uses, the end users have been able to rely on product manufacturers' compliance with the SNAP listings. EPA may consider how it should address the heavier burden that might fall on end users, who in some cases may be less familiar with EPA's regulations, in cases where product manufacturers may be making some products that an end user still using an ODS may not be able to purchase and use. EPA may also consider whether that heavier burden means that EPA should not apply the regulations to those end users.

    • Whether EPA should clarify when the replacement of an ODS occurs: e.g., on a facility-by-facility basis, or on a product-by-product basis. EPA may also consider whether to propose recordkeeping and reporting requirements to document when a user has transitioned to using a non-ODS.

    This list of considerations is not intended to be exhaustive, but rather provides an indication of the areas of initial thinking. The court also mentioned other possible approaches to regulation that the Agency could consider on remand. These include whether EPA may be able to use “retroactive disapproval” to revise an earlier determination where faced with new developments or in light of reconsideration of the relevant facts. In addition, the court mentioned other authorities EPA could consider to regulate substitutes for class I and class II ODS, such as the Toxic Substances Control Act (TSCA) and a number of CAA authorities, including the National Ambient Air Quality Standards (NAAQS) program, the Hazardous Air Pollutants (HAP) program, the Prevention of Significant Deterioration (PSD) program, and emission standards for motor vehicles. EPA would be interested in any thoughts stakeholders may have on the viability and desirability of these approaches.

    EPA appreciates there is interest from a wide variety of stakeholders in the development of a rule to address the court's decision on remand. Therefore, as an initial step, and as provided in more detail in the section below, EPA is providing notice of a stakeholder meeting. The purpose of sharing the Agency's preliminary considerations at this time is to provide a more specific roadmap to facilitate and focus the further input of our individual stakeholders. By laying out considerations raised by the court remand and its near-term plans, EPA seeks to work with stakeholders to continue to gather and exchange information that can assist the Agency as it begins to develop a proposed rule to address the court's remand of the 2015 Rule.

    D. What are EPA's plans for a stakeholder meeting?

    As indicated in the above DATES section, EPA will hold a stakeholder meeting on Friday, May 4, 2018, in Washington, DC from 9:30 a.m. to 12:30 p.m. to allow interested parties to provide input on what the Agency should consider as it begins developing a proposed rule in response to the court's remand of the 2015 Rule. Please follow the instructions provided to RSVP for this meeting as specified above in the DATES section of this document. Additional information concerning this stakeholder meeting will be available on the EPA website: https://www.epa.gov/snap.

    Dated: April 13, 2018. E. Scott Pruitt, Administrator.
    [FR Doc. 2018-08310 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 86 Control of Emissions From New and In-Use Highway Vehicles and Engines CFR Correction In Title 40 of the Code of Federal Regulations, Parts 82 to 86, revised as of July 1, 2017, on page 439, in § 86.000-7, the introductory text is reinstated to read as follows:
    § 86.000-7 Maintenance of records; submittal of information; right of entry.

    Section 86.000-7 includes text that specifies requirements that differ from § 86.091-7 or § 86.094-7. Where a paragraph in § 86.091-7 or § 86.094-7 is identical and applicable to § 86.000-7, this may be indicated by specifying the corresponding paragraph and the statement “[Reserved]. For guidance see § 86.091-7.” or “[Reserved]. For guidance see § 86.094-7.”

    [FR Doc. 2018-09058 Filed 4-26-18; 8:45 am] BILLING CODE 1301-00-D
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 272 [EPA-R02-RCRA-2018-0034; FRL-9974-06—Region 2] New York: Incorporation by Reference of State Hazardous Waste Management Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the Federal program. EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State regulations that will be subject to EPA's inspection and enforcement. This rule does not incorporate by reference the New York hazardous waste statutes. The rule codifies in the regulations the prior approval of New York's hazardous waste management program and incorporates by reference authorized provisions of the State's regulations.

    DATES:

    This regulation is effective June 26, 2018, unless EPA receives adverse written comment on this regulation by the close of business May 29, 2018. If EPA receives such comments, it will publish a timely withdrawal of this direct final rule in the Federal Register informing the public that this rule will not take effect. The Director of the Federal Register approves this incorporation by reference as of June 26, 2018 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-RCRA-2018-0034, by one of the following methods:

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

    Email: [email protected]

    Fax: (212) 637-4437.

    Mail: Send written comments to Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA, Region 2, 290 Broadway, 22nd Floor, New York, NY 10007.

    Hand Delivery or Courier: Deliver your comments to Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 22nd Floor, New York, NY 10007. Such deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID. No. EPA-R02-RCRA-2018-0034. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov, or email. The Federal http://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. (For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets).

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy. You can inspect and copy the records related to this codification effort at EPA Region 2 by appointment only. To make an appointment please call (212) 637-3703.

    FOR FURTHER INFORMATION CONTACT:

    Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 22nd Floor, New York, NY 10007; telephone number: (212) 637-3703; fax number: (212) 637-4437; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Incorporation by Reference A. What is codification?

    Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable. EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013 and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.

    B. What is the history of the authorization and codification of New York's hazardous waste management program?

    New York initially received final authorization for its hazardous waste management program, effective on May 29, 1986 (51 FR 17737) to implement its base hazardous waste management program. Subsequently, EPA authorized revisions to the State's program effective July 3, 1989 (54 FR 19184), May 7, 1990 (55 FR 7896), October 29, 1991 (56 FR 42944), May 22, 1992 (57 FR 9978), August 28, 1995 (60 FR 33753), October 14, 1997 (62 FR 43111), January 15, 2002 (66 FR 57679), March 14, 2005 (70 FR 1825, as corrected on April 5, 2005 (70 FR 17286)), August 31, 2009 (74 FR 31380), January 12, 2010 (75 FR 1617), and May 10, 2013 (78 FR 15299). EPA codified New York's authorized hazardous waste program effective September 30, 2002 (67 FR 49864), May 25, 2007 (72 FR 14044), and October 4, 2010 (75 FR 45489). In this action, EPA is revising subpart HH of 40 CFR part 272 to include the authorization revision actions that became effective January 12, 2010 and May 10, 2013.

    C. What decisions have we made in this rule?

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the New York rules described in the amendments to 40 CFR part 272 set forth below. EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    This action codifies EPA's authorization of revisions to New York's hazardous waste management program. This codification reflects the State program in effect at the time EPA authorized revisions to the New York hazardous waste program in final rules dated January 12, 2010 (75 FR 1617) and May 10, 2013 (78 FR 15299). The rule incorporates by reference the most recent version of the State's authorized hazardous waste management regulations. EPA has already provided notices and opportunity for comments on the Agency's decisions to authorize the New York program, and EPA is not now reopening the decision, nor requesting comments, on the New York authorizations as published in the Federal Register documents specified in Section B of this preamble concerning revisions to the authorized program in New York.

    EPA is incorporating by reference the authorized revisions to the New York hazardous waste program by revising subpart HH to 40 CFR part 272. Title 40 CFR 272.1651 previously incorporated by reference New York's authorized hazardous waste regulations, as amended effective September 5, 2006, as well as selected provisions as found in the New York regulations dated January 31, 1992. Section 272.1651 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.1651 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which were evaluated as part of the approval process of the hazardous waste management program under Subtitle C of RCRA.

    D. What is the effect of New York's codification on enforcement?

    EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference New York's inspection and enforcement authorities nor are those authorities part of New York's approved State program which operates in lieu of the Federal program. Title 40 CFR 272.1651(c)(2) lists these authorities for informational purposes, and because EPA also considered them in determining the adequacy of New York's procedural and enforcement authorities. New York's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.

    E. What State provisions are not part of the codification?

    The public is reminded that some provisions of New York's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

    (1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

    (2) Unauthorized amendments to authorized State provisions;

    (3) New unauthorized State requirements;

    (4) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities; and

    (5) Federal rules for which New York was previously authorized but which were later vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379; June 27, 2014). See 80 FR 18777 (April 8, 2015).

    State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1651(c)(3) lists the New York statutory and regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. This action updates that list of “broader in scope” provisions. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by EPA, the State may enforce such provisions under State law.

    Additionally, New York's hazardous waste regulations include amendments which have not been authorized by EPA. Since EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by EPA include amendments to previously authorized State regulations as well as new State requirements.

    State regulations that are not incorporated by reference in this rule at 40 CFR 272.1651(c)(1), or that are not listed in 40 CFR 272.1651(c)(3) (“broader in scope”) or 40 CFR 272.1651(c)(2) (“procedural and enforcement authorities”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.

    F. What will be the effect of Federal HSWA requirements on the codification?

    With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

    The codification does not affect Federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions, unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).

    Some existing State requirements may be similar to the HSWA requirement implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.

    II. Statutory and Executive Order Reviews

    This rule codifies EPA-authorized hazardous waste requirements pursuant to RCRA section 3006 and imposes no requirements other than those imposed by State law. Therefore, this rule complies with applicable executive orders and statutory provisions as follows.

    1. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review—The Office of Management and Budget (OMB) has exempted this rule from its review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

    2. Paperwork Reduction Act—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.).

    3. Regulatory Flexibility Act—This rule codifies New York's authorized hazardous waste management regulations in the CFR and does not impose new burdens on small entities. Accordingly, I certify that this action 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.).

    4. Unfunded Mandates Reform Act—Because this rule codifies pre-existing State hazardous waste management program requirements which EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, 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).

    5. Executive Order 13132: Federalism—Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government). This action codifies existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA.

    6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—Executive Order 13175 (65 FR 67249, November 6, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or 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).

    7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks—This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it is not based on environmental health or safety risks.

    8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

    9. National Technology Transfer Advancement Act—The requirements being codified are the result of New York's voluntary participation in EPA's State program authorization process under RCRA Subtitle C. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

    10. Executive Order 12988—As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), EPA has taken the necessary steps in this action to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

    11. Executive Order 12898—This Order (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Because this rule codifies pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

    12. Congressional Review Act—EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq., as amended) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication 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). This action will be effective June 26, 2018.

    List of Subjects in 40 CFR Part 272

    Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.

    Authority:

    This rule is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: December 27, 2017. Peter D. Lopez, Regional Administrator, Region 2. Editorial note:

    This document was received for publication by the Office of the Federal Register on April 18, 2018.

    For the reasons set forth in the preamble, 40 CFR part 272 is amended as follows:

    PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS 1. The authority citation for part 272 continues to read as follows: Authority:

    Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    2. Revise § 272.1651 to read as follows:
    § 272.1651 New York State-administered program: Final authorization.

    (a) New York State authorization. Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), New York has final authorization for the following elements as submitted to EPA in New York's base program application for final authorization which was approved by EPA effective on May 29, 1986. Subsequent program revision applications were approved effective on July 3, 1989, May 7, 1990, October 29, 1991, May 22, 1992, August 28, 1995, October 14, 1997, January 15, 2002, March 14, 2005, August 31, 2009, January 12, 2010, and May 10, 2013.

    (b) Authorization enforcement. The State of New York has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.

    (c) State statutes and regulations—(1) Statutes and regulations that are incorporated by reference. The New York regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq. The Director of Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the New York regulations that are incorporated by reference in this paragraph from West Publishing Company, 610 Opperman Drive, P.O. Box 64526, Eagan, MN 55164-0526; Phone: 1-800-328-4880; website: http://west.thomson.com. You may inspect a copy at EPA Region 2, 290 Broadway, 22nd Floor, New York, NY 10007 (Phone number: (212) 637-3703), or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    (i) The Binder entitled “EPA-Approved New York Regulatory Requirements Applicable to the Hazardous Waste Management Program”, dated May 2013.

    (ii) [Reserved]

    (2) Statutes and regulations that are not incorporated. EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein for enforcement purposes:

    (i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, as revised by the 2004 Cumulative Pocket Part: Sections 1-0303(18), 3-0301(1) (introductory paragraph); 3-0301(1)(a), (b), (m), (o), (w), (x) and (cc); 3-0301(2) introductory paragraph; 3-0301(2)(a), (b), (d) through (j), (l), (m), (q) and (z); 3-0301(4); 19-0301(1) (except 19-0301(c), (e) and (f)); 19-0303(1) through (3); 19-0304; 23-2305; 23-2307; 27-0105; 27-0701; 27-0703; 27-0705; 27-0707 (except 27-0707(2-c)); 27-0711; 27-0900 through 27-0908; 27-0909 (except 27-0909(5)); 27-0910 through 27-0922; 27-1105; 70-0101; 70-0103; 70-0105 (except 70-0105(3) and 70-0105(6)); 70-0107(1) and (2); 70-0107(3) introductory paragraph; 70-0107(3)(l); 70-0109; 70-0113; 70-0115 (except (2)(c) and (d)); 70-0117 (except 70-0117(5) through (7); 70-0119; 70-0121; 71-0301; 71-1719; 71-2705; 71-2707; 71-2709 through 71-2715; 71-2717; 71-2720; and 71-2727.

    (ii) McKinney's Consolidated Laws of New York, Book 1, Executive Law (EL), Article 6: Section 102.

    (iii) McKinney's Consolidated Laws of New York, Book 46, Public Officers Law (POL), as amended through 2004: Sections 87 and 89.

    (iv) McKinney's Consolidated Laws of New York, Book 7B, Civil Practice Law and Rules (CPLR), as amended through 2004: Sections 1013, 6301; 6311; and 6313.

    (v) Electronic Signatures and Records Act (ESRA) State Technology Law (STL), Article 3, as amended effective August 17, 2009: Sections 305 and 306.

    (vi) Title 6, New York Codes, Rules and Regulations (6 NYCRR), Volume A-2A, as amended effective through September 5, 2006: Sections 372.1(f); 373-1.1(f) and (g); 373-1.4(b); 373-1.4(d) through (f); 373-1.6(c); 621.1 through 621.4; 621.5 (except (d)(5), (d)(6)(i), (d)(7)(i)(a), (d)(7)(i)(c) and (d)(9)); 621.6 (except (b), (d)(4) and (d)(5)); 621.7; 621.8; 621.9 (except (a)(5), (c)(2) and (e)(2)); 621.10; 621.11 (except (d)); 621.12 through 621.15; and 621.16 (except (b), (d) and (e)).

    (vii) Title 9, New York Codes, Rules and Regulations (9 NYCRR), Part 540, Electronics Signature and Records Act, as amended effective May 7, 2003: Sections 540.1 through 540.6.

    (3) Statutes and regulations that are broader in scope. The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, are not incorporated by reference and are not federally enforceable:

    (i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, as revised by the 2004 Cumulative Pocket Part: Sections 27-0301; 27-0303; 27-0305; 27-0307; 27-0909(5); 27-0923; 27-0925 and 27-0926.

    (ii) Environmental Conservation Laws (ECL), 1997 Replacement Volume, as revised by the 2006 Cumulative Pocket Part: Section 27-1109(6).

    (iii) The following New York provisions are broader in scope because the State implements a Household Hazardous Waste program, whereas the Federal program excludes household waste from regulation as hazardous waste at 40 CFR 261.4(b)(1): Title 6, New York Codes, Rules and Regulations (6 NYCRR), as amended effective through September 5, 2006: Sections 370.2(b)(92) “Household hazardous waste”; 370.2(b)(93) “Household hazardous waste collection facility”; and 373-4.

    (iv) At 371.4(c), New York retains K064, K065, K066, K090 and K091 as hazardous wastes while EPA has removed them from the table at 40 CFR 261.32 and no longer regulates them as hazardous wastes (64 FR 56469; October 20, 1999).

    (v) In the following provisions of New York's hazardous waste regulations, the State cross-references Part 364 “Waste Transporter Permits” requirements, which sets forth transporter requirements regarding permit and financial liability requirements: 372.2(b)(5)(ii), 372.3(a)(1), 372.3(a)(4), 372.3(b)(6)(iv), 372.3(d)(3), 373-2.5(b)(3)(ii)(d) and (e), 373-1.7(h)(3), 373-3.5(b)(3)(ii)(d) and (e), 374-3.4(a)(2), and Appendix 30 Instructions for Generators/Item 8. These provisions referencing the Part 364 transporter permit and financial liability requirements are broader in scope than the Federal program.

    (vi) New York did not adopt an analog to 40 CFR 261.4(g) that excludes certain dredged materials from the State definition of hazardous waste. Instead, the State subjects these materials to full regulation as hazardous wastes.

    (vii) New York State regulations do not incorporate the Mineral Processing Secondary Materials Exclusion at 40 CFR 261.4(a)(17) and the related changes affecting 40 CFR 261.2(c)(3) and (c)(4)/Table, and 40 CFR 261.2(e)(1)(iii). Since New York did not adopt the exclusion at 40 CFR 261.4(a)(17) the State has a broader in scope program because the effect is to include materials that are not considered solid waste by EPA.

    (viii) The following New York provisions are broader in scope because they include requirements associated with the regulation of PCB waste as a state-only hazardous waste: 371.4(e), 372.1(e)(9), 373-1.1(d)(1)(x), 374-2.2(a)(9), 374-2.2(b) Table 1 and Footnote 2, 374-2.5(e)(4), 374-2.6(d)(4), 374-2.7(d)(4), 376.1(g)(1)(i), and 376.4(f). PCB wastes are regulated under the Federal Toxic Substances Control Act (TSCA) at 40 CFR part 761 rather than under the Federal RCRA program.

    (ix) The New York provision at 373-1.4(c) is broader in scope because it includes siting certificate requirements which are not part of the Federal program.

    (x) The New York provision at 373-2.15(a)(2) is broader in scope because it subjects incinerators to not just limited portions of the State's Air regulations in the same manner as the Federal rules, but entire programs including air program-specific permits and registrations.

    (xi) The New York provisions at 374-2.5(a)(2) and 374-2.6(a)(2) cross-reference 360-14.1(a)(4), which sets forth transfer facility and processor/re-refiner requirements for these types of facilities co-located at hazardous waste management facilities. These provisions referencing the Part 360 requirements are broader in scope than the Federal program because section 360-14.1(a)(4) may require used oil transfer facilities and processors/re-refiners managing non-hazardous used oil to be subject to State-only Part 360 provisions including permit requirements. The Federal program does not have an analogous permitting requirement for these types of facilities.

    (4) Vacated Federal rule. New York provisions at 371.1(e)(1)(xvi) and 371.4(i) are no longer considered to be part of New York's authorized program because the equivalent federal requirements were vacated by a federal court. The Federal Requirements ((Hazardous Waste Combustors; Revised Standards (HSWA) (40 CFR 261.4(a)(16) and 261.38 only) were published on June 19, 1998. The New York regulations were authorized on January 11, 2005 (effective March 14, 2005). The State's authorized program was subsequently codified in 40 CFR part 272 on March 26, 2007 (effective May 25, 2007). However, the corresponding Federal rules were later vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir. No. 98-1379; June 27, 2014). Consistent with the Court's vacatur, EPA issued a new final rule removing 40 CFR 261.4(a)(16) and 261.38 from the Federal CFR (published on April 8, 2015)

    (5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 2 and the State of New York, signed by the Commissioner of the State of New York Department of Environmental Conservation on July 20, 2001, and by the EPA Regional Administrator on January 16, 2002, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    (6) Statement of Legal Authority. “Attorney General's Statement for Final Authorization”, signed by the Attorney General of New York in 1985 and revisions, supplements, and addenda to that Statement dated August 18, 1988, July 26, 1989, August 15, 1991, October 11, 1991, July 28, 1994, May 30, 1997, February 5, 2001, April 2, 2004, June 13, 2008 (including three certifications), August 17, 2009, and May 22, 2012, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    (7) Program Description. The Program Description and any other materials submitted as supplements thereto, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    3. Appendix A to part 272 is amended by revising the listing for “New York” to read as follows: Appendix A to Part 272—State Requirements New York

    The regulatory provisions include:

    Title 6, New York Codes, Rules and Regulations (6 NYCRR), Chapter IV, Quality Services, Subchapter B, Solid Wastes (Volumes A-2 and A-2A), as amended effective through September 5, 2006.

    Please note: For a few regulations, the authorized regulation is an earlier version of the New York State regulation. For these regulations, EPA authorized the version of the regulations that appear in the Official Compilation of Codes, Rules and Regulations dated January 31, 1992. New York State made later changes to these regulations but these changes have not been authorized by EPA. The regulations where the authorized regulation is an earlier version of the regulation are noted below by inclusion in parentheses of January 31, 1992 after the regulatory citations.

    Part 360, Subpart 360-14—Used Oil: Sections 360-14.1(b)(7) and 360-14.1(b)(8).

    Part 370—Hazardous Waste Management System—General: Sections 370.1(a) (except (a)(3)); 370.1(b) through (d); 370.1(e) (except (e)(9)); 370.1(f); 370.2(a); 370.2(b)(1) through (b)(15) “battery”; 370.2(b)(15) “bedrock”, (January 31, 1992); 370.2(b)(17) through (b)(91); 370.2(b)(94) through (b)(125); 370.2(b)(127) through (b)(137); 370.2(b)(139) through (b)(221); 370.3 (except 370.3(c)); 370.4; 370.5 (except (b)).

    Part 371—Identification and Listing of Hazardous Waste: Sections 371.1(a) through (c); 371.1(d) (except (d)(1)(ii)(c)); 371.1(e) (except 371.1(e)(1)(xvi) and (e)(2)(vi)(b)(21)); 371.1(f)(1) through (7); 371.1(f)(8) (except the phrase “or such mixing occurs at a facility regulated under Subpart 373-4 or permitted under Part 373 of this Title”); 371.1(f)(9) and (f)(10); 371.1(g)(1) (except (g)(1)(ii)(c) and (g)(1)(v)); 371.1(g)(2) through (4); 371.1(h) through (j); 371.2; 371.3; 371.4(a) and (b); 371.4(c) (except K064, K065, K066, K090 and K091 entries); 371.4(d) and (f).

    Part 372—Hazardous Waste Manifest System and Related Standards for Generators, Transporters and Facilities: Sections 372.1(a) through (d); 372.1(e)(2)(ii)(c) (January 31, 1992); 372.1(e)(2)(iii)(c) (January 31, 1992); 372.1(e)(3) through (e)(8); 372.1(g) and (h); 372.2 (except (b)(5)(ii) and (b)(9)); 372.3 (except (a)(1), (a)(4), (a)(7)(i), (a)(8), (b)(3), (b)(5)(ii), (b)(6)(iv), (b)(7)(i)(d), (c)(4) and (d)(3)); 372.5 (except (h) and (i); 372.6; 372.7(a) and (b); 372.7(c) (except (c)(1)(ii)); and 372.7(d).

    Part 373, Subpart 373-1—Hazardous Waste Treatment, Storage and Disposal Facility Permitting Requirements: Sections 373-1.1(a) through (c), 373-1.1(d) (except (d)(1)(iii)(b), (d)(1)(iii)(c)(6), (d)(1)(iii)(d), (d)(1)(iv)(a) and (b), (d)(1)(x), (d)(1)(xvi), and (d)(1)(xviii)); 373-1.1(e); 373-1.1(h) and (i); 373-1.2; 373-1.3; 373-1.4(a); 373-1.4(g) and (h); 373-1.5(a) (except (a)(2)(xviii)); 373-1.5(b) and (c); 373-1.5(d) through (p) (except reserved paragraphs); 373-1.6 (except (c)); 373-1.7 through 373-1.11.

    Part 373, Subpart 373-2—Final Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities: Sections 373-2.1 through 373-2.4; 373-2.5(a); 373-2.5(b) (except (b)(1)(i)(c), (b)(3)(ii)(d) and (b)(3)(ii)(e)); 373-2.5(c) through (g); 373-2.6 through 373-2.11; 373-2.12 (except 373-2.12(a)(1) and (d)); 373-2.12(a)(1) (January 31, 1992); 373-2.13; 373-2.14; 373-2.15 (except (a)(2)); 373-2.19 (except (e)(1)(ii)); 373-2.23; 373-2.24; and 373-2.27 through 373-2.31.

    Part 373, Subpart 373-3—Interim Status Standards Regulations for Owners and Operators of Hazardous Waste Facilities: Sections 373-3.1 (except 373-3.1(a)(4)); 373-3.2 through 373-3.4; 373-3.5 (except 373-3.5(b)(1)(i)(c), (b)(3)(ii)(d) and (b)(3)(ii)(e)); 373-3.6 through 373-3.18; 373-3.23; and 373-3.27 through 373-3.31.

    Part 374, Subpart 374-1—Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities: Sections 374-1.1; 374-1.3; 374-1.6 (except (a)(2)(iii)); 374-1.7; 374-1.8 (except reserved sections); 374-1.9; and 374-1.13.

    Part 374, Subpart 374-2—Standards for the Management of Used Oil: Sections 374-2.1 (except (a)(2) “Adjacent towns or cities”, (a)(4) “Contract”, (a)(10) “On-premises oil changing operation”, (a)(14) “Retail”, (a)(15) “Retail establishment”, (a)(16) “Service establishment”, (a)(18) “Total halogens”, (a)(19) “Underground used oil tank”, and (a)(27) “Used oil tank system”); 374-2.2; 374-2.3 (except (c)(3) through (c)(6), and (f)); 374-2.4; 374-2.5 (except (a)(2) and (e)(4)); 374-2.6 (except (a)(2) and (d)(4)); 374-2.7 (except (d)(4), (e)(5) and (e)(6)); 374-2.8; and 374-2.9.

    Part 374, Subpart 374-3—Standards for Universal Waste: Sections 374-3.1 (except (f) and (g)); 374-3.2; 374-3.3; 374-3.4 (except (a)(2)); and 374-3.5 through 374-3.7.

    Part 376—Land Disposal Restrictions: Sections 376.1 (except (a)(5), (a)(9), (e), (f), and (g)(1)(ii)(b)); 376.2; 376.3 (except (b)(4) and (d)(2)); 376.4 (except (c)(2), (e)(1)-(7), and (f)); and 376.5.

    Appendices: Appendices 19 through 25; Appendices 27 through 30; Appendix 33; Appendix 37; Appendix 38; Appendices 40 through 49; and Appendices 51 through 55.

    Copies of the New York regulations that are incorporated by reference are available from West Publishing Company, 610 Opperman Drive, P.O. Box 64526, Eagan, MN 55134-0526; Phone: 1-800-328-4880; website: http://west.thomson.com.

    [FR Doc. 2018-08431 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 438 Managed Care CFR Correction In Title 42 of the Code of Federal Regulations, Parts 430 to 481, revised as of October 1, 2017, on page 295, in § 438.214, paragraph (c) [Reserved] is removed and “(2) [Reserved]” is added in its place. [FR Doc. 2018-09060 Filed 4-26-18; 8:45 am] BILLING CODE 1301-00-D FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 73 and 74 [AU Docket No. 17-351; DA 18-257] Auction of FM Translator Construction Permits Scheduled for June 21, 2018; Notification of Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 83 AGENCY:

    Federal Communications Commission.

    ACTION:

    Final action; requirements and procedures.

    SUMMARY:

    In this document, the Commission summarizes the procedures and announces upfront payments amounts and minimum opening bids for the auction of FM translator construction permits (Auction 83). The document summarized here is intended to familiarize applicants with the procedures and other requirements for participation in the auction.

    DATES:

    April 16, 2018, and until 6:00 p.m. Eastern Time (ET) on April 26, 2018, each Auction 83 applicant must review, verify or update its previously-filed short-form applications (FCC Forms 175) electronically. Bidding in Auction 83 is scheduled to start on June 21, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For auction legal questions, Lynne Milne in the Wireless Telecommunications Bureau's Auctions and Spectrum Access Division at (202) 418-0660. For auction process and procedures, the FCC Auction Hotline at (717) 338-2868. For FM translator service questions, James Bradshaw, Lisa Scanlan or Tom Nessinger in the Media Bureau's Audio Division at (202) 418-2700. To request materials in accessible formats (Braille, large print, electronic files, or audio format) for people with disabilities, send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY).

    SUPPLEMENTARY INFORMATION:

    This is a summary of Commission's document (Auction 83 Procedures Public Notice), AU Docket No. 17-351; DA 18-257, released on March 16, 2018. The complete text of this document is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. ET Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text of this document and related documents also are available on the internet at the Commission's website: http://wireless.fcc.gov/auctions/83, or by using the search function for AU Docket No. 17-351 on the Commission's Electronic Comment Filing System (ECFS) web page at http://www.fcc.gov/cgb/ecfs.

    I. General Information A. Background

    1. On February 6, 2003, the Media and Wireless Telecommunications Bureaus announced an auction filing window for applications for new FM translator stations and major modifications to authorized FM translator facilities in the non-reserved band (Channels 221 to 300). By Public Notices released May 21, 2013 and April 30, 2014, the Bureaus provided a list of all applications received during the filing window with engineering proposals that were mutually exclusive (MX) with engineering proposals in other applications submitted in the filing window. Applicants were previously given the opportunity to eliminate their mutual exclusivity with other applicants' engineering proposals by settlement or technical modification to their proposals. The Bureaus will now proceed to auction with the 43 MX groups identified in Attachment A of the Auction 83 Procedures Public Notice.

    B. Construction Permits and Entities Eligible To Participate in Auction 83

    2. Auction 83 will resolve mutually exclusive applications for up to 43 new FM translator construction permits. A list of the locations and channels of these proposed stations is included as Attachment A to the Auction 83 Procedures Public Notice. Attachment A also sets forth the names of applicants in each MX group along with a minimum opening bid and an upfront payment amount for each construction permit in Auction 83.

    3. An applicant listed in Attachment A may become qualified to bid only if it meets the additional filing, qualification and payment requirements and otherwise complies with applicable requirements described in the Auction 83 Procedures Public Notice. Each applicant may become a qualified bidder only for those construction permits specified for that applicant in Attachment A to the Auction 83 Procedures Public Notice. Each of the engineering proposals within each MX group are directly mutually exclusive with one another; therefore, no more than one construction permit will be awarded for each MX group identified in Attachment A. Once mutually exclusive applications are accepted, because mutual exclusivity exists for auction purposes, an applicant for a particular construction permit cannot obtain it without placing a bid, even if no other applicant for that construction permit becomes qualified to bid or in fact places a bid. While the Auction 83 Comment Public Notice had sought comment on whether certain changes made since 2003 to 47 CFR 1.2105 warranted any different approach in this context, no commenter directly addressed this issue. The Bureaus do not see any reason to depart from established precedent for Auction 83.

    4. Section 1.2105(b)(2) provides that an auction applicant that undertakes a major change, including a change of ownership that would constitute an assignment or transfer of control, after the short-form application filing deadline will be disqualified from participating in bidding. In the Auction 83 Comment Public Notice (see 83 FR 4455, Jan. 31, 2018), the Bureaus sought comment on whether to waive 47 CFR 1.2105(b)'s prohibition on major changes with respect to transfers of control or assignments that had occurred prior to release of the Auction 83 Comment Public Notice and/or that have been subject to Commission review and approval by a particular date. In response to the Auction 83 Comment Public Notice, iHeart, the parent company of three Auction 83 applicants, filed comments supporting grant of waivers of 47 CFR 1.2105(b)(2)'s bar on major modifications to allow iHeart applicants to participate in Auction 83, and one applicant filed an opposition seeking denial of the requested relief.

    5. The Bureaus decided that under the unique factual circumstances, application of the rule would be unduly burdensome to Auction 83 applicants that have completed a transfer of control or assignment that was authorized by the Commission during a period of approximately 15 years. In accordance with 47 CFR 1.3, the Bureaus waive 47 CFR 1.2105(b)(2)'s bar on major modifications for any Auction 83 applicant, such as iHeart or any other similarly-situated party, that has completed a transfer of control or assignment pursuant to a transaction that has been reviewed and approved by the Commission prior to the close of the remedial filing window on April 26, 2018. An applicant seeking to participate in Auction 83 pursuant to this relief should include with its updated Form 175 during the upcoming remedial filing window a brief explanation of any changes it has undertaken during the pendency of its Form 175, including relevant details such as citations to or file numbers of Commission authorizations for such changes.

    6. In light of the amendments to the Commission's competitive bidding rules in 2015, the Bureaus also sought comment in the Auction 83 Comment Public Notice on how to apply 47 CFR 1.2105's provisions that prohibit the filing of multiple auction applications by applicants subject to common control. The amended rules require entities with any overlapping controlling interest to participate in an auction through just a single auction application. The only party to address this issue, iHeart, supports the Bureaus proposal to require applicants subject to common control to participate through a single bidding entity in a single application covering all of the MX engineering proposals applied for previously by the separate commonly controlled applicants. The Bureaus waived the current rule's application to the originally filed Forms 175, which pre-dated the current rule by more than a decade, and to permit applicants to come into compliance with the current rule by modifying the relevant auction applications as necessary to come into compliance. Accordingly, any Auction 83 applicants with overlapping controlling interests will be permitted to amend their Forms 175 to participate as a single bidding entity. Specifically, on or before March 30, 2018, applicants that have a controlling interest in more than one Form 175 listed in Attachment A to the Auction 83 Procedures Public Notice were required to bring those commonly controlled applications into compliance with the restrictions of 47 CFR 1.2105(a)(3) by filing a written request as an attachment to an email sent to [email protected] This written request was required to identify by applicant name and applicant FCC registration number (FRN) each of that applicant's 2003 Forms 175 listed in Attachment A in which there is common control, as well as identification of the individual or entity with such common control. This email was required to request consolidation of the previously filed Forms 175 in Attachment A with common control. The request had to be signed by a person who is an authorized representative of the applicant with authority to bind that applicant. After consolidation, the remaining single applicant was required to update, certify and submit its FCC Form 175 during the remedial filing window.

    C. Rules and Disclaimers 1. Relevant Authority

    7. Applicants must familiarize themselves thoroughly with the Commission's general competitive bidding rules, including Commission decisions in proceedings regarding competitive bidding procedures, application requirements, and obligations of Commission licensees. Broadcasters should also familiarize themselves with the Commission's commercial FM translator broadcast service and competitive bidding requirements contained in 47 CFR parts 73 and 74, as well as Commission orders concerning competitive bidding. Applicants must also be thoroughly familiar with the procedures, terms and conditions contained in the Auction 83 Procedures Public Notice and any future public notices that may be released in this proceeding.

    8. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in their public notices at any time, and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of each applicant to remain current with all Commission rules and with all public notices pertaining to Auction 83.

    2. Prohibited Communications and Compliance With Antitrust Laws

    9. Starting with the initial application filing deadline on March 17, 2003, the rules prohibiting certain communications set forth in 47 CFR 1.2105(c) and 73.5002(d) and (e) apply to each applicant that filed a FCC Form 175 in Auction 83. Subject to specified exceptions, 47 CFR 1.2105(c)(1) provides that, after the deadline for filing a short-form application, all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other in any manner the substance of their own, or each other's, or any other applicants' bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline. Applicants are hereby placed on notice that public disclosure of information relating to bids, bidding strategies, or to post-auction market structures may violate 47 CFR 1.2105(c).

    a. Entities Subject to Section 1.2105

    10. An applicant for purposes of this rule includes the officers and directors of the applicant, all controlling interests in the entity submitting the FCC Form 175, as well as all holders of interests amounting to 10 percent or more of the entity, and all officers and directors of that entity. A party that submits an application becomes an applicant under the rule at the application deadline and that status does not change based on subsequent developments. Thus, an auction applicant that does not make and submit update to its Form 175 during the upcoming remedial filing window, correct deficiencies in its application, fails to submit a timely and sufficient upfront payment or does not otherwise become qualified, remains an applicant for purposes of 47 CFR 1.2105(c) and remains subject to the prohibition on certain communications until the applicable down payment deadline.

    b. Scope of Prohibition on Communications; Prohibition on Joint Bidding Agreements

    11. The Commission in 2015 amended 47 CFR 1.2105(c) to extend its prohibition on communications to cover all applicants for an auction regardless of whether the applicants seek permits in the same geographic area or market. Accordingly, the Commission now prohibits joint bidding arrangements, including arrangements relating to the licenses being auctioned that address or communicate, directly or indirectly, bids, bidding at the auction, bidding strategies, including arrangements regarding price or the specific construction permits or licenses on which to bid, and any such arrangements relating to the post-auction market structure. The revised rule provides limited exceptions for communications within the scope of any arrangement consistent with the exclusions from the Commissions rule prohibiting joint bidding, provided such arrangement is disclosed on the applicant's auction application. An applicant may continue to communicate pursuant to any pre-existing agreement, arrangement, or understanding that is solely operational or that provide for a transfer or assignment of licenses, provided that such agreement, arrangement or understanding does not involve the communication or coordination of bids (including amounts), bidding strategies, or the particular licenses on which to bid and provided that such agreement, arrangement or understanding is disclosed on its application.

    12. In the Auction 83 Comment Public Notice, the Bureaus sought comment on whether waiver of certain provisions of 47 CFR 1.2105 might be appropriate or necessary in light of the passage of time since the 2003 filing of the original Auction 83 Forms 175, the rule revisions in 2015, and the business changes that applicants may have undergone. The Bureaus noted that some Auction 83 applicants and their pending applications might not be in compliance with the current 47 CFR 1.2105 provisions regarding joint bidding agreements and auction-related communications. No comment was filed on this issue in response to the Auction 83 Comment Public Notice. No party has filed notice of any potential violation of the provisions of 47 CFR 1.2105(c) with respect to prohibited bidding agreements or communications. Consequently, the Bureaus find no cause to waive the relevant rules.

    c. Section 1.2105(c) Certification

    13. By electronically submitting its Form 175, each applicant in Auction 83 certified its compliance with 47 CFR 1.2105(c) and 73.5002(d). However, the mere filing of a certifying statement as part of an application will not outweigh specific evidence that a prohibited communication has occurred, nor will it preclude the initiation of an investigation when warranted. Any applicant found to have violated these communication prohibitions may be subject to sanctions.

    d. Reporting Requirements

    14. Section 1.2105(c)(4) requires that any applicant that makes or receives a communication that appears to violate 47 CFR 1.2105(c) must report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. Each applicant's obligation to report any such communication continues beyond the five-day period after the communication is made, even if the report is not made within the five-day period.

    e. Procedures for Reporting Prohibited Communications

    15. Section 1.2105(c) requires parties to file only a single report concerning a prohibited communication and to file that report with Commission personnel expressly charged with administering the Commission's auctions. Any reports required by 47 CFR 1.2105(c) must be filed consistent with the instructions set forth in the Auction 83 Procedures Public Notice. For Auction 83, such reports must be filed with the Chief of the Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, by the most expeditious means available. Any such report should be submitted by email to Margaret W. Wiener at the following email address: [email protected] If you choose instead to submit a report in hard copy, any such report must be delivered only to: Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street SW, Room 6C217, Washington, DC 20554.

    16. Section 1.2105(c) is designed to minimize the risk of inadvertent dissemination of information in such reports. A party reporting any communication pursuant to 47 CFR 1.65, 1.2105(a)(2), or 1.2105(c)(4) must take care to ensure that any report of a prohibited communication does not itself give rise to a violation of 47 CFR 1.2105(c). For example, a party's report of a prohibited communication could violate the rule by communicating prohibited information to other applicants through the use of Commission filing procedures that would allow such materials to be made available for public inspection, such as, a submission to the Commission's Office of the Secretary or to the Commission's Electronic Comment Filing System. A party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection by following the procedures specified in 47 CFR 0.459. Such parties also are encouraged to coordinate with the Auctions and Spectrum Access Division staff about the procedures for submitting such reports.

    f. Winning Bidders Must Disclose Terms of Agreements

    17. Each applicant that is a winning bidder will be required to disclose in its long-form application the specific terms, conditions, and parties involved in any agreement it has entered into. This applies to any bidding consortia, joint venture, partnership, or agreement, understanding, or other arrangement entered into relating to the competitive bidding process, including any agreement relating to the post-auction market structure. Failure to comply with the Commission's rules can result in enforcement action.

    g. Antitrust Laws

    18. Regardless of compliance with the Commission's rules, applicants remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Compliance with the disclosure requirements of 47 CFR 1.2105(c) will not insulate a party from enforcement of the antitrust laws.

    19. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission may refer such allegations to the U.S. Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, the applicant may be subject to forfeiture of its upfront payment, down payment, or full bid amount and may be prohibited from participating in future auctions, among other sanctions.

    3. Due Diligence

    20. The Bureaus remind each potential bidder that it is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the construction permits for commercial FM translators that it is seeking in this auction. The FCC makes no representations or warranties about the use of this spectrum or these construction permits for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC permittee in a broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

    21. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. In particular, the Bureaus strongly encourage each potential bidder to perform technical analyses and/or refresh its previous analyses to assure itself that, should it become a winning bidder for any Auction 83 construction permit, it will be able to build and operate facilities that will fully comply with all applicable technical and legal requirements. The Bureaus strongly encourage each applicant to inspect any prospective transmitter sites located in, or near, the service area for which it plans to bid, confirm the availability of such sites, and to familiarize itself with the Commission's rules regarding the National Environmental Policy Act.

    22. The Bureaus strongly encourage each applicant to continue to conduct its own research throughout Auction 83 in order to determine the existence of pending or future administrative or judicial proceedings—including applications, applications for modification, rulemaking proceedings, requests for special temporary authority, waiver requests, petitions to deny, petitions for reconsideration, informal objections, and applications for review—may relate to particular applicants or the licenses available in Auction 83 (or the terms and conditions thereof, including all applicable Commission rules and regulations) and might affect an applicant's decision on continued participation in the auction. Each applicant is responsible for assessing the likelihood of the various possible outcomes and for considering the potential impact on construction permits available in this auction. The due diligence considerations mentioned in the Auction 83 Procedures Public Notice do not comprise an exhaustive list of steps that should be undertaken prior to participating in this auction. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon specific facts and circumstances related to its interests.

    23. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of the construction permits available in Auction 83. Each potential bidder is responsible for undertaking research to ensure that any permits won in Auction 83 will be suitable for its business plans and needs. Each potential bidder must undertake its own assessment of the relevance and importance of information gathered as part of its due diligence efforts.

    24. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. To the extent the Commission's databases may not include all information deemed necessary or desirable by an applicant, it must obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases.

    4. Use of Auction Systems

    25. The Commission makes no warranty whatsoever with respect to the FCC auction systems. In no event shall the Commission, or any of its officers, employees, or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning, or use of the FCC auction systems that are accessible to qualified bidders in connection with this auction. Moreover, no obligation or liability will arise out of the Commission's technical, programming, or other advice or service provided in connection with the FCC auction systems.

    D. Auction Specifics 1. Bidding Methodology and Options

    26. The Commission will conduct this auction over the internet using the FCC auction bidding system. Qualified bidders are permitted to bid electronically via the internet or by telephone using the telephonic bidding option. All telephone calls are recorded.

    27. The initial schedule for bidding rounds will be announced by public notice at least one week before bidding in the auction starts. Moreover, unless otherwise announced, bidding on all construction permits will be conducted on each business day until bidding has stopped on all construction permits.

    2. Pre-Auction Dates and Deadlines

    28. The following dates and deadlines apply:

    Auction Tutorial Available (via internet)—April 12, 2018 Short-Form Application (FCC Form 175) Remedial Filing Window Opened—April 16, 2018; 12:00 noon ET Short-Form Application (FCC Form 175) Remedial Filing Window Deadline—April 26, 2018; prior to 6:00 p.m. ET Upfront Payments (via wire transfer)—May 31, 2018; 6:00 p.m. ET Mock Auction—June 15, 2018 Auction Begins—June 21, 2018 3. Requirements for Participation

    29. A party whose application is listed on Attachment A of the Auction 83 Procedures Public Notice may participate in the bidding in Auction 83 only if the applicant:

    • During the remedial filing window, provides sufficient information in the data fields of its electronic FCC Form 175 that it is able to certify and submit its auction application. Instructions for submitting an updated application are provided in the Auction 83 Procedures Public Notice.

    ○ In the event that the application is found to be incomplete after Commission staff review, an applicant will have a limited opportunity to address deficiencies in its application during a resubmission window, the dates for which will be announced in a future public notice.

    ○ If an applicant fails to provide sufficient information in the data fields of its electronic Form 175 the applicant therefore will not able to certify and submit its Form 175. If an Auction 83 applicant fails to certify and submit its Form 175 during the remedial window, that auction application will be designated as Incomplete-Disqualified. If an application is designated as Incomplete-Disqualified, that applicant will have no further opportunity to update its application, and the applicant will be disqualified from further participation in Auction 83.

    • Submits a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6:00 p.m. ET on May 31, 2018, following the procedures and instructions set forth in Attachment C to the Auction 83 Procedures Public Notice; and

    • Complies with all provisions outlined in the Auction 83 Procedures Public Notice and applicable Commission rules.

    II. Short-Form Application (FCC Form 175) Requirements A. Updating Applicant's FCC Form 175 in Auction Application System—Remedial Filing Window Closes April 26, 2018

    30. To qualify to participate in bidding, each Auction 83 applicant must provide sufficient information in the data fields of its electronic FCC Form 175 that it is able to certify and submit its auction application, in compliance with the Commission's competitive bidding rules and the procedures and deadlines set forth in the Auction 83 Procedures Public Notice. Attachment B of the Auction 83 Procedures Public Notice contains detailed instructions for updating and verifying short-form applications.

    31. Applicants must make necessary updates and certifications, and must verify short-form application information during a remedial filing window. The window opened at noon ET on April 16, 2018, and will close at 6:00 p.m. ET on April 26, 2018.

    32. Each Auction 83 applicant is required to review its FCC Form 175 in the auction application system to insure that all relevant information is provided and that the information contained in the application is accurate and complete at this time. Each applicant must provide updates or revisions of previously submitted information, consistent with the requirements of 47 CFR 1.65. The auction application system will permit an applicant to navigate to the certify and submit screen in its Form 175 only after providing required disclosures of information in specified data entry fields. An applicant may also be required to upload an attachment to its Form 175 application in some circumstances. Each applicant is advised to begin its application updating process early during the remedial filing window so that it can certify and submit its FCC Form 175 prior to the close of the remedial filing window. Each Auction 83 applicant must certify and submit any updates prior to 6:00 p.m. ET on April 26, 2018.

    B. Minor Modifications to Short-Form Applications

    33. Notwithstanding the relief from 47 CFR 1.2105(b)'s major change restriction for past transactions as discussed in the Auction 83 Procedures Public Notice, at this stage in the application process, an Auction 83 applicant is permitted to make only minor changes to its application. Permissible minor changes include, among other things, deletion and addition of authorized bidders (to a maximum of three) and revision of addresses and telephone numbers of the applicants and their contact persons. If revised or updated information constitutes a “major amendment,” as defined by 47 CFR 1.2105, such changes may result in the dismissal of the application. In this context, major amendments include a change of technical proposals, change control of the applicant, claim eligibility for a higher percentage of bidding credit, or change the identification of the application's proposed facilities as noncommercial educational after the initial application filing deadline.

    C. Maintaining Current Information in Short-Form Applications

    34. As required by 47 CFR 1.65 and 1.2105(b), an applicant must maintain the accuracy and completeness of all information furnished in its pending application and in competitive bidding proceedings to furnish additional or corrected information to the Commission within five days of a significant occurrence, or to amend a short form application no more than five days after the applicant becomes aware of the need for the amendment. Changes that cause a loss of or reduction in the percentage of bidding credit specified in the application must be reported immediately, and no later than five business days after the change occurs.

    D. Submission of Updates to Short-Form Applications

    35. Updates to short-form applications should be made electronically using the FCC auction application system whenever possible. For the change to be submitted and considered by the Commission, be sure to click on the SUBMIT button.

    36. An applicant can use the auction application system outside of the remedial and resubmission filing windows to make administrative and certain other changes to its short-form application. After the resubmission filing window has closed, the system will permit applicants to modify information in most of the application's data fields.

    37. If changes need to be made outside of these windows, the applicant must submit a letter briefly summarizing the changes and subsequently update its short-form application in the auction application system. Any letter describing changes to an applicant's short-form application must be addressed to Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, and submitted by email to [email protected] The email summarizing the changes must include a subject or caption referring to Auction 83 and the name of the applicant, for example, “Re: Changes to Auction 83 Short-Form Application of ABC Corp.” The Bureaus request that parties format any attachments to email as Adobe® Acrobat® (pdf) or Microsoft® Word documents. Questions about short-form application amendments should be directed to the Auctions and Spectrum Access Division at (202) 418-0660.

    38. Applicants must not submit application-specific material through the Commission's Electronic Comment Filing System, which was used for submitting comments regarding procedures for conducting Auction 83.

    39. Applicants should note that submission of a short-form application (and any amendments thereto) constitutes a representation by the person certifying the application that he or she is an authorized representative of the applicant with authority to bind the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Applicants are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.

    E. Electronic Review of Short-Form Applications

    40. During the remedial filing window, an applicant listed in Attachment A of the Auction 83 Procedures Public Notice must review and update its electronic FCC Form 175 in the auction application system. There is no fee to access this system. See Attachment B of the Auction 83 Procedures Public Notice for details on accessing the auction application system. During the remedial filing window, each Auction 83 applicant listed in Attachment A must, at a minimum, certify and submit its Form 175.

    F. Provisions Regarding Former and Current Defaulters

    41. Pursuant to the rules governing competitive bidding, each applicant must make certifications regarding whether it is a current or former defaulter or delinquent. A current defaulter or delinquent is not eligible to participate in Auction 83. An applicant is considered a current defaulter or a current delinquent when it, any of its affiliates (as defined by 47 CFR 1.2110), any of its controlling interests, or any of the affiliates of its controlling interests, is in default on any payment for any Commission construction permit or license (including a down payment) or is delinquent on any non-tax debt owed to any Federal agency as of the filing deadline for FCC Forms 175 in that auction. Accordingly, each applicant must certify under penalty of perjury on its Form 175 that the applicant, any of its affiliates, any of its controlling interests, and any of the affiliates of its controlling interests are not in default on any payment for a Commission construction permit or license (including a down payment) and are not delinquent on any non-tax debt owed to any Federal agency. For purposes of making this certification, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i). If an Auction 83 applicant has an outstanding non-tax debt to the Commission or any other federal agency, including any debts that results in a listing of the applicant on the Commission's Red Light Display System, as of the closing deadline of the remedial filing window, the applicant will be unable to make the required certification that it is not currently in default; if so, such applicant will be not eligible to participate in Auction 83 bidding.

    42. An Auction 83 applicant is considered a former defaulter or a former delinquent when the applicant or any of its controlling interests (as defined by 47 CFR 1.2105(a)(4)(i)) has defaulted on any Commission construction permit or license (including a down payment) or has been delinquent on any non-tax debt owed to any Federal agency, but has since remedied all such defaults and cured all of the outstanding non-tax delinquencies prior to the remedial filing deadline in this auction. A former defaulter or a former delinquent may participate further in Auction 83 so long as it is otherwise qualified, and that applicant makes an upfront payment that is 50 percent more than would otherwise be required. An applicant must certify under penalty of perjury whether it, along with any of its controlling interests, has ever been in default on any payment for a Commission construction permit or license (including a down payment) or has ever been delinquent on any non-tax debt owed to any Federal agency, subject to the exclusions described in the Auction 83 Procedures Public Notice.

    43. In 2015, the Commission narrowed the scope of the individuals and entities to be considered a former defaulter or a former delinquent. For purposes of the certification under 47 CFR 1.2105(a)(2)(xii), the applicant may exclude from consideration any cured default on a Commission construction permit or license or delinquency on a non-tax debt owed to a Federal agency for which any of the following criteria are met: (1) The notice of the final payment deadline or delinquency was received more than seven years before the FCC Form 175 filing deadline; (2) the default or delinquency amounted to less than $100,000; (3) the default or delinquency was paid within six months after receiving the notice of the final payment deadline or delinquency; or (4) the default or delinquency was the subject of a legal or arbitration proceeding and was cured upon resolution of the proceeding.

    44. Applicants are encouraged to review previous guidance provided by the Wireless Telecommunications Bureau on default and delinquency disclosure requirements in the context of the auction short-form application process. For example, it has been determined that, to the extent that Commission rules permit late payment of regulatory or application fees accompanied by late fees, such debts will become delinquent for purposes of 47 CFR 1.2105(a) and 1.2106(a) only after the expiration of a final payment deadline. Therefore, with respect to regulatory or application fees, the provisions of 47 CFR 1.2105(a) and 1.2106(a) regarding default and delinquency in connection with competitive bidding are limited to circumstances in which the relevant party has not complied with a final Commission payment deadline. Parties are also encouraged to consult with the Wireless Telecommunications Bureau's Auctions and Spectrum Access Division staff if they have any questions about default and delinquency disclosure requirements.

    45. The Commission considers outstanding debts owed to the United States Government, in any amount, to be a serious matter. The Commission adopted rules, including a provision referred to as the red light rule, that implement its obligations under the Debt Collection Improvement Act of 1996, but the Commission's adoption of the red light rule does not alter the applicability of any of its competitive bidding rules, including the provisions and certifications of 47 CFR 1.2105 and 1.2106, with regard to current and former defaults or delinquencies.

    46. The Bureaus remind each applicant, however, that the Commission's Red Light Display System, which provides information regarding debts currently owed to the Commission, may not be determinative of an auction applicant's ability to comply with the default and delinquency disclosure requirements of 47 CFR 1.2105. Thus, while the red light rule ultimately may prevent the processing of long-form applications by auction winners, an auction applicant's lack of current red light status is not necessarily determinative of its eligibility to participate in an auction or of its upfront payment obligation.

    47. Moreover, applicants in Auction 83 should note that any long-form applications filed after the close of bidding will be reviewed for compliance with the Commission's red light rule, and such review may result in the dismissal of a winning bidder's long-form application. The Bureaus strongly encourage each applicant to carefully review all records and other available federal agency databases and information sources to determine whether the applicant, or any of its affiliates (as defined in 47 CFR 1.2110), or any of its controlling interests, or any of the affiliates of its controlling interests, owes or was ever delinquent in the payment of non-tax debt owed to any federal agency.

    III. Pre-Auction Procedures A. Online Tutorial on Bidding Process—Available April 12, 2018

    48. An educational auction tutorial became available on the Auction 83 web page on Thursday, April 12, 2018. The tutorial will remain available and accessible anytime for reference in connection with the procedures outlined in the Auction 83 Procedures Public Notice.

    B. Revised Short-Form Applications—Due Prior to 6:00 p.m. ET on April 26, 2018

    49. During the remedial filing window, each Auction 83 applicant listed in Attachment A must, at a minimum, provide sufficient information in the data fields of the form such that it is able to certify and submit its Form 175 via the FCC's auction application system. If any information in its Form 175 or its attachments is inaccurate or otherwise needs to be updated, any such changes must be reported in its Form 175 during the upcoming remedial filing window. Attachment B of the Auction 83 Procedures Public Notice contains instructions for updating short-form applications in the remedial window. Updates to the short-form application must be submitted prior to 6:00 p.m. ET on April 26, 2018. No application fee is required.

    50. Previously submitted short-form applications may be viewed and updated at any time from noon ET on April 16, 2018, until the filing window closes at 6:00 p.m. ET on April 26, 2018. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. Applications can be updated or amended multiple times until the remedial filing deadline at 6:00 p.m. ET on April 26, 2018.

    51. An applicant must click on the SUBMIT button on the “Certify & Submit” screen to successfully submit its FCC Form 175 and any modifications; otherwise the application or changes to the application will not be received or reviewed by Commission staff.

    C. Application Processing and Corrections of Deficiencies

    52. The Commission will process all applications for permits listed in Attachment A of the Auction 83 Procedures Public Notice that are certified and submitted during the remedial filing window to determine which are complete, incomplete, or incomplete-disqualified. Subsequent to the remedial filing window the Bureaus will issue a public notice identifying the status of each application. An applicant whose application is incomplete will have a limited opportunity to address deficiencies during a resubmission window, the dates for which will be announced in a future public notice. If a listed Auction 83 applicant does not certify and submit its Form 175 auction application during the remedial filing window, its application will be designated as incomplete-disqualified, and the applicant will be disqualified from further participation in Auction 83.

    53. Commission staff will communicate only with an applicant's contact person or certifying official, as designated on the short-form application, unless the applicant's certifying official or contact person notifies the Commission in writing that applicant's counsel or other representative is authorized to speak on its behalf. Authorizations may be sent by email to [email protected]

    D. Upfront Payments—Due May 31, 2018

    54. In order to be eligible to bid in this auction, a sufficient upfront payment and a complete and accurate FCC Remittance Advice Form (FCC Form 159) must be submitted prior to 6:00 p.m. ET on May 31, 2018, following the procedures outlined below and the instructions in Attachment C to the Auction 83 Procedures Public Notice. After completing its short-form application, an applicant will have access to an electronic version of the FCC Form 159. This Form 159 can be printed and the completed form must be sent by fax to the FCC at (202) 418-2843.

    1. Making Upfront Payments by Wire Transfer

    55. Wire transfer payments must be received before 6:00 p.m. ET on May 31, 2018. No other payment method is acceptable. Specifically, the Commission will not accept checks, credit cards or automated clearing house payments. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their bankers several days before they plan to make the wire transfer, and allow sufficient time for the transfer to be initiated and completed before the deadline. The BNF Account Number is specific to the upfront payments for this auction. Do not use BNF Account Number from previous auctions. The following information will be needed:

    ABA Routing Number: 021000021 Receiving Bank: JP Morgan Chase Beneficiary: FCC/Account #267516869 Originating Bank Information (OBI Field): (Skip one space between each information item) “AUCTIONPAY” Applicant FCC Registration Number (FRN): (same as FCC Form 159, block 21) Payment Type Code: (same as FCC Form 159, block 24A: “U083”) FCC Code 1: (same as FCC Form 159, block 28A: “83”) Payer Name: (same as FCC Form 159, block 2) Payer FCC Registration Number (FRN): (If different from applicant FRN): #

    56. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must fax a completed FCC Form 159 (Revised 2/03) to the FCC at (202) 418-2843. On the fax cover sheet, write “Wire Transfer—Auction Payment for Auction 83.” In order to meet the upfront payment deadline, an applicant's payment must be credited to the Commission's account for Auction 83 before the deadline.

    57. Each applicant is responsible for ensuring timely submission of its upfront payment and for timely filing of an accurate and complete FCC Remittance Advice Form (FCC Form 159). An applicant should coordinate with its financial institution well ahead of the due date regarding its wire transfer. The Commission repeatedly has cautioned auction participants about the importance of planning ahead to prepare for unforeseen last-minute difficulties in making payments by wire transfer. Each applicant also is responsible for obtaining confirmation from its financial institution that its wire transfer to JP Morgan Chase was successful and from Commission staff that its upfront payment was timely received and that it was deposited into the proper account. To receive confirmation from Commission staff, contact Gail Glasser of the Office of Managing Director's Revenue & Receivables Operations Group/Auctions at (202) 418-0578, or alternatively, Theresa Meeks at (202) 418-2945.

    58. All upfront payments must be made in U.S. dollars. All upfront payments must be made by wire transfer. Upfront payments for Auction 83 go to an account number different from the accounts used in previous FCC auctions. Failure to deliver a sufficient upfront payment as instructed in the Auction 83 Procedures Public Notice by the deadline on May 31, 2018 will result in dismissal of the short-form application and disqualification from further participation in the auction.

    2. FCC Form 159

    59. An accurate and complete FCC Remittance Advice Form (FCC Form 159, Revised 2/03) must be faxed to the FCC at (202) 418-2843 to accompany each upfront payment. Proper completion of this form is critical to ensuring correct crediting of upfront payments. Detailed instructions for completion of FCC Form 159 are included in Attachment C. An electronic pre-filled version of the FCC Form 159 is available after submitting the FCC Form 175. Payers using the pre-filled FCC Form 159 are responsible for ensuring that all of the information on the form, including payment amounts, is accurate.

    3. Upfront Payments and Bidding Eligibility

    60. Applicants must make upfront payments sufficient to obtain bidding eligibility on the construction permits on which they will bid. The Bureaus proposed in the Auction 83 Comment Public Notice that the amount of the upfront payment would determine a bidder's initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids in any single round. The Bureaus received no comment on the proposal that the upfront payment amount would determine a bidder's initial bidding eligibility, and this proposal is adopted.

    61. Under the Bureaus' proposal, in order to bid on a particular construction permit, otherwise qualified bidders that are designated in Attachment A of the Auction 83 Procedures Public Notice for that construction permit must have a current eligibility level that meets or exceeds the number of bidding units assigned to that construction permit. At a minimum, therefore, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 83 Procedures Public Notice, or else the applicant will not be eligible to participate in the auction. An applicant does not have to make an upfront payment to cover all construction permits designated for that applicant in Attachment A of the Auction 83 Procedures Public Notice, but only enough to cover the maximum number of bidding units that are associated with construction permits on which they wish to place bids and hold provisionally winning bids in any given round. (A provisionally winning bid is a bid that would become a final winning bid if the auction were to close after the given round.) The total upfront payment does not affect the total dollar amount the bidder may bid on any given construction permit.

    62. In the Auction 83 Comment Public Notice, the Bureaus proposed an upfront payment for each construction permit, taking into account various factors related to the efficiency of the auction process and the potential value of similar spectrum, and sought comment on this proposal. The Bureaus received no comment on the specified upfront payment amounts for each construction permit in Auction 83, and the proposed upfront payment amounts are adopted. The specific upfront payment amounts and bidding units for each construction permit are set forth in Attachment A of the Auction 83 Procedures Public Notice.

    63. In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to be active (bid on or hold provisionally winning bids on) in any single round, and submit an upfront payment amount covering that number of bidding units. In order to make this calculation, an applicant should add together the bidding units for all construction permits on which it seeks to be active in any given round. Applicants should check their calculations carefully, as there is no provision for increasing a bidder's eligibility after the upfront payment deadline. A qualified bidder's maximum eligibility will not exceed the sum of the bidding units associated with the total number of construction permits identified for that applicant in Attachment A of the Auction 83 Procedures Public Notice.

    64. Applicants that are former defaulters, as described in the Auction 83 Procedures Public Notice, must pay upfront payments 50 percent greater than non-former defaulters. For this classification as a former defaulter or a former delinquent, defaults and delinquencies of the applicant itself and its controlling interests are included. For this purpose, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i). If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 83 Procedures Public Notice, that applicant will not be eligible to participate further in Auction 83. This applicant will retain its status as an applicant in Auction 83, and will remain subject to 47 CFR 1.2105(c) and 73.5002(d).

    65. If an applicant is a former defaulter, it must calculate its upfront payment for all of its identified construction permits by multiplying the number of bidding units on which it wishes to be active by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit.

    E. Auction Registration

    66. At least one week before the beginning of bidding in the auction, the Bureaus will issue a public notice announcing all qualified bidders for the auction. Qualified bidders are those applicants with submitted FCC Form 175 applications that are deemed timely filed, accurate, and substantially complete, provided that such applicants have timely submitted an upfront payment that is sufficient to qualify them to bid.

    67. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight mail. The mailing will be sent only to the contact person at the contact address listed in the FCC Form 175 and will include the SecurID® tokens that will be required to place bids, the web address and instructions for accessing and logging in to the auction bidding system, an FCC assigned username (User ID) for each authorized bidder, and the Auction Bidder Line phone number.

    68. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, if this mailing is not received by noon on Thursday, June 14, 2018, the contact, certifier or authorized bidder listed on that applicant's Form 175 needs to call the Auctions Hotline at (717) 338-2868. Receipt of this registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all of the registration material.

    69. In the event that SecurID® tokens are lost or damaged, only a person who has been designated as an authorized bidder, the contact person, or the certifying official on the applicant's short-form application may request replacements. To request replacement of these items, call Technical Support at (877) 480-3201, option nine; (202) 414-1250; or (202) 414-1255 (TTY).

    F. Remote Electronic Bidding

    70. The Commission will conduct this auction over the internet, and telephonic bidding will be available as well. Only qualified bidders are permitted to bid. Each applicant should indicate its bidding preference, electronic or telephonic, on its FCC Form 175. In either case, each authorized bidder must have its own SecurID® token, which the Commission will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID® tokens, while applicants with two or three authorized bidders will be issued three tokens. For security purposes, the SecurID® tokens, bidding system web address, FCC assigned username, and the telephonic bidding telephone number are only mailed to the contact person at the contact address listed on the FCC Form 175. Each SecurID® token is tailored to a specific auction. SecurID® tokens issued for other auctions or obtained from a source other than the FCC will not work for Auction 83.

    G. Mock Auction—June 19, 2018

    71. All qualified bidders will be eligible to participate in a mock auction on Tuesday, June 19, 2018. The mock auction will enable bidders to become familiar with the FCC auction bidding system prior to the auction. The Bureaus strongly recommend that all bidders participate in the mock auction. Details will be announced by public notice.

    IV. Auction

    72. The first round of bidding for Auction 83 will begin on Thursday, June 21, 2018. The initial bidding schedule will be announced in a public notice listing the qualified bidders, which is released at least one week before the start of the auction.

    A. Auction Structure 1. Simultaneous Multiple Round Auction

    73. In the Auction 83 Comment Public Notice, the Bureaus proposed to auction all construction permits listed in Attachment A of the Auction 83 Procedures Public Notice in a single auction using the Commission's standard simultaneous multiple-round auction format. This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which qualified bidders may place bids on individual construction permits. The Bureaus received no comment on this proposal, and this proposal is adopted. Unless otherwise announced, bids will be accepted on all construction permits in each round of the auction until bidding stops on every construction permit.

    2. Eligibility and Activity Rules

    74. As discussed in the Auction 83 Procedures Public Notice, the Bureaus will use upfront payments to determine initial (maximum) bidding eligibility (as measured in bidding units) for Auction 83. The amount of the upfront payment submitted by a bidder determines initial bidding eligibility, the maximum number of bidding units on which a bidder may be active. As noted earlier, each construction permit is assigned a specific number of bidding units as listed in Attachment A of the Auction 83 Procedures Public Notice. Bidding units assigned to each construction permit do not change as prices rise during the auction. Upfront payments are not attributed to specific construction permits. Rather, a bidder may place bids on any of the construction permits for which it is designated an applicant in Attachment A of the Auction 83 Procedures Public Notice as long as the total number of bidding units associated with those construction permits does not exceed its current eligibility. Eligibility cannot be increased during the auction; it can only remain the same or decrease. Thus, in calculating its upfront payment amount and therefore its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid or hold provisionally winning bids in any single round, and submit an upfront payment amount covering that total number of bidding units. At a minimum, an applicant's upfront payment must cover the bidding units for at least one of the construction permits for which it is designated an applicant in Attachment A of the Auction 83 Procedures Public Notice. The total upfront payment does not affect the total dollar amount a bidder may bid on any given construction permit. The Bureaus received no comments on the bidding eligibility proposals, and these proposals are adopted.

    75. In order to ensure that an auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction.

    76. A bidder's activity level in a round is the sum of the bidding units associated with construction permits covered by the bidder's new bids in the current round and provisionally winning bids from the previous round. A provisionally winning bid is a bid that would become a final winning bid if the auction were to close after the given round.

    77. The Bureaus received no comment on the activity rule proposal. Therefore, the Bureaus adopt the following activity requirement: A bidder is required to be active on 100 percent of its current eligibility during each round of the auction. That is, a bidder must either place a bid or be a provisionally winning bidder during each round of the auction. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.

    3. Activity Rule Waivers

    78. In the Auction 83 Comment Public Notice, the Bureaus proposed that each bidder in the auction be provided with three activity rule waivers. The Bureaus received no comment on this issue.

    79. Therefore, the Bureaus adopt this proposal to provide bidders with three activity rule waivers. Bidders may use an activity rule waiver in any round during the course of the auction. Use of an activity rule waiver preserves the bidder's eligibility despite its activity in the current round being below the required minimum activity level. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility in the event that exigent circumstances prevent it from bidding in a particular round.

    80. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

    81. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the activity rule described in the Auction 83 Procedures Public Notice. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

    82. Also, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bid is placed, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there is no new bid or no proactive waiver will not keep the auction open.

    4. Auction Stopping Rule

    83. For Auction 83, the Bureaus proposed to employ a simultaneous stopping rule approach, which means all construction permits remain available for bidding until bidding stops on every construction permit. Specifically, bidding will close on all construction permits after the first round in which no bidder submits any new bid or applies a proactive waiver.

    84. The Bureaus also sought comment on alternative versions of the simultaneous stopping rule for Auction 83. (1) The auction would close for all construction permits after the first round in which no bidder applies a waiver or places any new bid on a construction permit for which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping procedure. (2) The auction would close for all construction permits after the first round in which no bidder applies a proactive waiver or places any new bid on a construction permit that already has a provisionally winning bid. Thus, absent any other bidding activity, a bidder placing a new bid on an FCC-held construction permit (a construction permit that does not have a provisionally winning bid) would not keep the auction open under this modified stopping procedure.(3) The auction would close using a modified version of the simultaneous stopping procedure that combines options (1) and (2). (4) The auction would close after a specified number of additional rounds (special stopping procedure) to be announced by the Bureaus. If the Bureaus invoke this special stopping procedure, they will accept bids in the specified final round(s), after which the auction will close. (5) The auction would remain open even if no bidder places any new bids or applies a waiver. In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.

    85. The Bureaus proposed to exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureaus are likely to attempt to change the pace of the auction. For example, the Bureaus may adjust the pace of bidding by changing the number of bidding rounds per day and/or the minimum acceptable bids. The Bureaus proposed to retain the discretion to exercise any of these options with or without prior announcement during the auction. The Bureaus received no comment on these proposals and adopt them for Auction 83.

    5. Auction Delay, Suspension, or Cancellation

    86. The Bureaus received no comment on their proposals in the Auction 83 Comment Public Notice regarding auction delay, suspension, or cancellation, and adopt them. By public notice and/or by announcement through the FCC auction bidding system, the Bureaus may delay, suspend, or cancel bidding in the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureaus, in their sole discretion, may elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. The Bureaus emphasize that they will exercise this authority solely at their discretion, and not as a substitute for situations in which bidders may wish to apply their activity rule waivers.

    B. Bidding Procedures 1. Round Structure

    87. The initial schedule of bidding rounds will be announced in the public notice listing the qualified bidders, which is released at least one week before the start of bidding in the auction. Each bidding round is followed by the release of round results. Multiple bidding rounds may be conducted each day.

    88. In the Auction 83 Comment Public Notice, the Bureaus proposed to retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureaus received no comment on these proposals, and adopt them for Auction 83. The Bureaus may change the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors.

    2. Reserve Price and Minimum Opening Bids

    89. A reserve price is an absolute minimum price below which a construction permit or license will not be sold in a specific auction. In the Auction 83 Comment Public Notice, the Bureaus did not propose to establish reserve prices for the construction permits listed in Attachment A. The Bureaus did not receive comment on this proposal, and adopt it.

    90. A minimum opening bid is the minimum bid price set at the beginning of the auction below which no bids are accepted. The Bureaus in the Auction 83 Comment Public Notice sought comment on specifically proposed minimum opening bid amounts for each construction permit listed in Attachment A to the Auction 83 Procedures Public Notice. Specifically, a minimum opening bid was proposed for each construction permit by taking into account various factors relating to the efficiency of the auction and the potential value of the spectrum, including the type of service and class of facility offered, market size, population covered by the proposed broadcast facility, industry cash flow data, and recent broadcast transactions.

    91. The Bureaus received no comment on the proposed minimum opening bid amounts, and therefore the Bureaus adopt the minimum opening bid amounts proposed in the Auction 83 Comment Public Notice. The specific minimum opening bid amounts for each of the construction permits are again specified in Attachment A to the Auction 83 Procedures Public Notice.

    3. Bid Amounts

    92. In the Auction 83 Comment Public Notice, the Bureaus proposed that in each round, if the bidder has sufficient eligibility to place a bid on the particular construction permit, an eligible bidder will be able to place a bid on a given construction permit in any of up to nine different amounts. Under the proposal, the FCC auction bidding system interface will list the nine acceptable bid amounts for each construction permit. The Bureaus received no comment on this proposal; therefore, it is adopted.

    93. For calculation of the nine acceptable bid amounts for each construction permit, the Bureaus did not receive any comment on a proposal to use 10 percent for a minimum acceptable bid increment percentage and to use 5 percent for an additional bid increment percentage. Therefore, the Bureaus will begin the auction with a minimum acceptable bid increment percentage of 10 percent and an additional bid increment percentage of 5 percent.

    94. In Auction 83, the minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be calculated by multiplying the provisionally winning bid amount by one plus the minimum acceptable bid percentage, i.e., provisionally winning bid amount * 1.10, rounded under the Commission's standard rounding procedures for auctions as described in the Auction 83 Procedures Public Notice.

    95. In Auction 83, the FCC auction bidding system will calculate the eight additional bid amounts by multiplying the minimum acceptable bid amount by the additional bid increment percentage of 5 percent, and that result (rounded) is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount, etc. Because the additional bid increment percentage is 5 percent, the calculation of the additional increment amount is (minimum acceptable bid amount) * (0.05), rounded. The first additional acceptable bid amount equals (minimum acceptable bid amount) + (additional increment amount); the second additional acceptable bid amount equals (minimum acceptable bid amount) + (2 * (additional increment amount)); the third additional acceptable bid amount equals (minimum acceptable bid amount) + (3 * (additional increment amount)); etc.

    96. The Bureaus proposed to retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid percentage, the additional bid increment percentage, and the number of acceptable bid amounts if the Bureaus determine that circumstances so dictate. Further, the Bureaus proposed to retain the discretion to do so on a construction permit-by-construction permit basis. The Bureaus also proposed to retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureaus could set a $1,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid percentage results in a minimum acceptable bid amount that is $1,200 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $1,000 above the provisionally winning bid.

    97. The Bureaus did not receive any comment on their proposals to retain the discretion to change bid amounts as described in the Auction 83 Procedures Public Notice, if they determine that circumstances so dictate. The Bureaus adopt these proposals. If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC auction bidding system during the auction.

    4. Provisionally Winning Bids

    98. The FCC auction bidding system at the end of each bidding round will determine a provisionally winning bid for each construction permit based on the highest bid amount received for that permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids at the end of the auction become the winning bids.

    99. In the Auction 83 Comment Public Notice, the Bureaus proposed to use a pseudo-random number generator to select a single provisionally winning bid in the event of identical high bid amounts being submitted on a construction permit in a given round (i.e., tied bids). No comments were received on this proposal. Hence, the Bureaus adopt this tied bids proposal.

    100. Accordingly, the FCC auction bidding system will assign a pseudo-random number to each bid upon submission. The tied bid with the highest pseudo-random number wins the tiebreaker, and becomes the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to close with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the construction permit receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.

    101. A provisionally winning bid will be retained until there is a higher bid on the construction permit at the close of a subsequent round. As a reminder, provisionally winning bids count toward activity for purposes of the activity rule.

    5. Bidding

    102. All bidding will take place remotely either through the FCC auction bidding system or by telephonic bidding. There will be no on-site bidding during Auction 83. Please note that telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are therefore reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. The length of a call to place a telephonic bid may vary; please allow a minimum of ten minutes.

    103. An Auction 83 bidder's ability to bid on specific construction permits is determined by two factors: (1) The construction permits designated for that applicant in Attachment A of the Auction 83 Procedures Public Notice and (2) the bidder's eligibility. The bid submission screens will allow bidders to submit bids on only those construction permits designated for that applicant in Attachment A of the Auction 83 Procedures Public Notice.

    104. In order to access the bidding function of the FCC auction bidding system, bidders must be logged in during the bidding round using the passcode generated by the SecurID® token and a personal identification number (PIN) created by the bidder. Bidders are strongly encouraged to print a round summary for each round after they have completed all of their activity for that round.

    105. If a bidder has sufficient eligibility to place a bid on the particular construction permit, eligible bidders will be able to place bids on a given construction permit in any of up to nine pre-defined bid amounts in each round. For each construction permit, the FCC auction bidding system will list the acceptable bid amounts in a drop-down box. Bidders use the drop-down box to select from among the acceptable bid amounts. The FCC auction bidding system also includes an upload function that allows text files containing bid information to be uploaded.

    106. Until a bid has been placed on a construction permit, the minimum acceptable bid amount for that permit will be equal to its minimum opening bid amount. Once there are bids on a permit, minimum acceptable bids for the following round will be determined as described in the Auction 83 Procedures Public Notice.

    107. During a round, an eligible bidder may submit bids for as many construction permits as it wishes (providing that it is eligible to bid on the specific permits), remove bids placed in the current bidding round, or permanently reduce eligibility. If multiple bids are submitted for the same construction permit in the same round, the system takes the last bid entered as that bidder's bid for the round. Bidding units associated with construction permits for which the bidder has removed bids do not count towards current activity.

    6. Bid Removal and Bid Withdrawal

    108. In the Auction 83 Comment Public Notice, the Bureaus explained bid removal procedures in the FCC auction bidding system. Each qualified bidder has the option of removing any bids placed in a round provided that such bids are removed before the close of that bidding round. By removing a bid within a round, a bidder effectively unsubmits the bid. A bidder removing a bid placed in the same round is not subject to withdrawal payments. Removing a bid will affect a bidder's activity because a removed bid no longer counts toward bidding activity for the round. Once a round closes, a bidder may no longer remove a bid.

    109. In the Auction 83 Comment Public Notice, the Bureaus proposed to prohibit bidders from withdrawing any bid after close of the round in which that bid was placed. The Bureaus received no comment on this issue of bid withdrawal. Accordingly, the Bureaus will prohibit bid withdrawals in Auction 83. Bidders are cautioned to select bid amounts carefully because no bid withdrawals will be allowed, even if a bid was mistakenly or erroneously made.

    7. Round Results

    110. Reports reflecting bidders' identities for Auction 83 will be available before and during the auction. Thus, bidders will know in advance of this auction the identities of the bidders against which they are bidding.

    111. Bids placed during a round will not be made public until the conclusion of that round. After a round closes, the Bureaus will compile reports of all bids placed, current provisionally winning bids, new minimum acceptable bid amounts for the following round, whether the construction permit is FCC-held, and bidder eligibility status (bidding eligibility and activity rule waivers), and post the reports for public access.

    8. Auction Announcements

    112. The Commission will use auction announcements to report necessary information such as schedule changes. All auction announcements will be available by clicking a link in the FCC auction bidding system.

    V. Post-Auction Procedures

    113. Shortly after bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying the winning bidders, and establishing deadlines for submitting down payments, final payments, and long-form applications (FCC Forms 349).

    A. Down Payments

    114. Within ten business days after release of the auction closing public notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission for Auction 83 to twenty percent of the net amount of its winning bids (gross bids less any applicable new entrant bidding credits).

    B. Final Payments

    115. Each winning bidder will be required to submit the balance of the net amount for each of its winning bids within ten business days after the applicable deadline for submitting down payments.

    C. Long-Form Applications (FCC Form 349)

    116. The Commission's rules currently provide that within thirty days following the close of bidding and notification to the winning bidders, unless a longer period is specified by public notice, winning bidders must electronically submit a properly completed long-form application (FCC Form 349, Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station) and required exhibits for each construction permit won through Auction 83. Winning bidders claiming new entrant status must include an exhibit demonstrating their eligibility for the bidding credit. The Commission's rules also provide that a winning bidder in a commercial broadcast spectrum auction is required to submit an application filing fee with its post-auction long-form application. Further instructions on these and other filing requirements will be provided to winning bidders in the auction closing public notice. An Auction 83 applicant that has its long-form application dismissed will be deemed to have defaulted and will be subject to default payments under 47 CFR 1.2104(g) and 1.2109(c).

    D. Default and Disqualification

    117. Any winning bidder that defaults or is disqualified after the close of the auction (i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make a full and timely final payment, or is otherwise disqualified) is liable for default payments as described in 47 CFR 1.2104(g)(2). This payment consists of a deficiency payment, equal to the difference between the amount of the Auction 83 bidder's winning bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less.

    118. In the Auction 83 Comment Public Notice, the Bureaus proposed to set the percentage of the applicable bid to be assessed as an additional payment for any Auction 83 default at 20 percent of the applicable bid. The Bureaus received no comment on this proposal, and it is therefore adopted.

    119. Finally, in the event of a default, the Commission has the discretion to re-auction the construction permit or offer it to the next highest bidder (in descending order) at its final bid amount. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing authorizations held by the applicant.

    E. Refund of Remaining Upfront Payment Balance

    120. All refunds of upfront payment balances will be returned to the payer of record as identified on the FCC Form 159 unless the payer submits written authorization instructing otherwise. To access the refund form, bidders are encouraged to use the Refund Information icon found on the Auction Application Manager page or through the Refund Form link available on the Auction Application Submit Confirmation page in the FCC auction application system. After the required information is completed on the blank form, the form should be printed, signed, and submitted to the Commission by mail or fax as instructed below.

    121. If a bidder has elected not to complete the Refund Form through the Auction Application Manager page, the Commission is requesting that all information listed below be supplied in writing.

    Name, address, contact and phone number of Bank ABA Number Account Number to Credit Name of Account Holder FCC Registration Number (FRN)

    The refund request must be submitted by fax to the Revenue & Receivables Operations Group/Auctions at (202) 418-2843 or by mail to:

    Federal Communications Commission, Financial Operations, Revenue & Receivables Operations Group/Auctions, Gail Glasser, 445 12th Street SW, Room 1-C864, Washington, DC 20554.

    Note:

    Refund processing generally takes up to two weeks to complete. Bidders with questions about refunds should contact Gail Glasser at (202) 418-0578 or Theresa Meeks at (202) 418-2945.

    VI. Final Regulatory Flexibility Certification

    122. The Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, requires that a regulatory flexibility analysis be prepared for a notice-and-comment rulemaking proceeding, unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 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, 5 U.S.C. 601(3). 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 Small Business Administration (SBA). 15 U.S.C 632.

    123. As required by the RFA, an Initial Regulatory Flexibility Certification (IRFC) was incorporated in the January 16, 2018, public notice seeking comment on competitive bidding procedures to be used in Auction 83. A summary of this public notice was published at 83 FR 4455, Jan. 31, 2018. The Auction 83 Procedures Public Notice implements competitive bidding rules adopted by the Commission in multiple notice-and-comment rulemaking proceedings, as well as establishes by the Bureaus, on delegated authority, additional procedures for competitive bidding in Auction 83 for certain FM translator construction permits. More specifically, the Public Notice provides an overview of the procedures, terms and conditions governing Auction 83 and the post-auction application and payment processes. The Public Notice also provides instructions for Auction 83 applicants to review, verify and update their previously filed short-form applications during the upcoming Remedial Window, as required. In addition, the Public Notice addresses three filings submitted by parties in response to the Auction 83 Comment Public Notice.

    124. Auction 83 is a closed auction, therefore the specific competitive bidding procedures and minimum opening bid amounts described in the Auction 83 Comment Public Notice will affect only the 57 individuals or entities listed in Attachment A to the Auction 83 Procedures Public Notice who are eligible to complete the remaining steps to become qualified to bid in this auction. The latest available U.S. Census Bureau data show that there were 2,849 radio station firms that operated in 2012. Of that number 2,806 firms operated with annual receipts below the SBA's small business size standard of firms having $38.5 million or less in annual receipts. The 57 eligible individuals or entities for Auction 83 include firms of all sizes and constitute approximately two percent of all firms that operated and of firms meeting the SBA small business size standard. Consequently, because the proposed procedures and minimum opening bid amounts would affect a maximum of 57 radio station firms, or approximately two percent of the total, and not all 57 are small entities, the Bureaus find that a substantial number of small entities would not be affected by these competitive bidding procedures or minimum opening bid amounts contained in the Auction 83 Procedures Public Notice. Therefore, the Bureaus certify that these competitive bidding procedures and minimum opening bid amounts announced in the Auction 83 Procedures Public Notice will not have a significant economic impact on a substantial number of small entities.

    125. The Bureaus will send a copy of the Auctions 83 Procedures Public Notice, including this Final Regulatory Flexibility Certification, in a Report to Congress pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A). In addition, the Auctions 83 Procedures Public Notice and this Final Regulatory Flexibility Certification will be sent to the Chief Counsel for Advocacy of the SBA pursuant to 5 U.S.C. 605(b).

    Federal Communications Commission. Gary Michaels, Deputy Chief, Auctions and Spectrum Access Division, WTB.
    [FR Doc. 2018-08635 Filed 4-26-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket Nos. 10-90, 14-58, 14-259; FCC 16-64] Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband Experiments AGENCY:

    Federal Communications Commission.

    ACTION:

    Technical amendments.

    SUMMARY:

    This document corrects errors in the final rules portion of a Federal Register document that adopted rules to implement a competitive bidding process for Phase II of the Connect America Fund that will harness market forces to expand broadband in targeted rural areas. The document was published in the Federal Register on July 7, 2016.

    DATES:

    Effective April 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Alexander Minard, Wireline Competition Bureau, (202) 418-7400.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the FCC's Erratum, FCC 18-297, released on March 26, 2018. This summary contains technical amendments to a Federal Register summary, 81 FR 44414 (July 7, 2016). The full text of the Commission's Report and Order, WC Docket Nos. 10-90, 14-58; 14-259; FCC 16-64, released on March 26, 2016 is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554.

    Technical Amendments 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.

    Accordingly, 47 CFR part 54 is corrected by making the following correcting amendments:

    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. In § 54.315, revise paragraph (c)(2)(iv)(A) to read as follows:
    § 54.315 Application process for phase II support distributed through competitive bidding.

    (c) * * *

    (2) * * *

    (iv) * * *

    (A) That is among the 100 largest non-U.S. banks in the world, determined on the basis of total assets as of the end of the calendar year immediately preceding the issuance of the letter of credit (determined on a U.S. dollar equivalent basis as of such date);

    3. In § 54.804, revise paragraph (d)(2)(iv)(A) to read as follows:
    § 54.804 Application process.

    (d) * * *

    (2) * * *

    (iv) * * *

    (A) That is among the 100 largest non-U.S. banks in the world, determined on the basis of total assets as of the end of the calendar year immediately preceding the issuance of the letter of credit (determined on a U.S. dollar equivalent basis as of such date);

    Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2018-08887 Filed 4-26-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 Foreign Acquisition; Solicitation Provisions and Contract Clauses CFR Correction In Title 48 of the Code of Federal Regulations, Chapter 2 (Parts 201 to 299), revised as of October 1, 2017, on page 179, in 225.872-1, in paragraph (a), and on page 465, in 252.225-7021, under TRADE AGREEMENTS-BASIC (DEC 2016), under Qualifying country, “Czech Republic” is added in alphabetical order. [FR Doc. 2018-09059 Filed 4-26-18; 8:45 am] BILLING CODE 1301-00-D DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 243 [Docket No. FRA-2009-0033, Notice No. 6] RIN 2130-AC70 Training, Qualification, and Oversight for Safety-Related Railroad Employees AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    In response to a petition for reconsideration of a final rule, FRA is amending its regulations on Training, Qualification, and Oversight for Safety-Related Railroad Employees by delaying the regulations' implementation dates an additional year. FRA previously delayed the regulations' implementation dates for one year in a final rule published May 3, 2017 (May 2017 Final Rule).

    DATES:

    This regulation is effective June 26, 2018.

    ADDRESSES:

    You may send comments, identified by docket number FRA-2009-0033 and RIN 2130-AC70, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments;

    Mail: Docket Management Facility, U.S. DOT, 1200 New Jersey Avenue SE, W12-140, Washington, DC 20590;

    Hand Delivery: The Docket Management Facility is located in Room W12-140, West Building Ground Floor, U.S. DOT, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or

    Fax: 202-493-2251.

    Instructions: All submissions must include the agency name and docket number (Federal Railroad Administration, FRA-2009-0033) or Regulatory Identification Number (RIN) for this rulemaking (2130-AC70). All comments received will be posted without change to http://www.regulations.gov; this includes any personal information. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted comments or materials.

    Docket: For access to the docket to read background documents, petitions for reconsideration, or comments received, go to http://www.regulations.gov and follow the online instructions for accessing the docket or visit the Docket Management Facility described above.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Castiglione, Staff Director—Human Performance Division, Federal Railroad Administration, 4100 International Plaza, Suite 450, Fort Worth, TX 76109-4820 (telephone: 817-447-2715); or Alan H. Nagler, Senior Trial Attorney, Federal Railroad Administration, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-6038).

    SUPPLEMENTARY INFORMATION:

    On November 7, 2014, FRA published a final rule (2014 Final Rule) that established minimum training standards for each category and subcategory of safety-related railroad employees and required railroad carriers, contractors, and subcontractors to submit training programs to FRA for approval. See 79 FR 66459. The 2014 Final Rule was required by section 401(a) of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, 122 Stat. 4883 (Oct. 16, 2008), codified at 49 U.S.C. 20162. The Secretary of Transportation delegated the authority to conduct this rulemaking and implement the rule to the Federal Railroad Administrator. 49 CFR 1.89(b).

    In the preamble to the 2014 Final Rule, FRA noted the importance of establishing implementation dates and providing incentives for the early filing of model programs to improve the efficiency and effectiveness of the review process. FRA recognized it was paramount to give model program developers sufficient time to develop programs and receive FRA approval. FRA also recognized that employers would not use those model programs unless the employers were given reasonable time to consider those programs before the employers' deadline for implementation. Consequently, the 2014 Final Rule provided model program developers with an incentive to file all model programs by May 1, 2017—eight months before the first employers would have been required to submit model programs and two years before smaller employers (i.e., those employers with less than 400,000 total employee work hours annually) would have been required to submit their model programs. See 79 FR 66459, 66503-66504. The incentive to submit early was a guarantee from FRA that the model program would be considered approved so it could be implemented within 180 days after the date of submission unless FRA identified that all or part of the program did not conform to the rule's requirements.

    After publishing the 2014 Final Rule, FRA took significant steps to educate the regulated community on its requirements and assist with the development of model training plans. For example, on March 20, 2017, FRA added information to its website to more broadly disseminate information about the 2014 Final Rule's requirements. See https://www.fra.dot.gov/Page/P1023. 1 Moreover, when the American Short Line and Regional Railroad Association (ASLRRA) requested FRA's help in developing its model programs for its members, FRA shared training documents it uses to train the agency's personnel on Federal rail safety requirements. FRA then made those same FRA training documents available on FRA's website because others in the regulated community would likely find them useful.

    1 Additional details about each of those steps are contained in the May 2017 Final Rule. See 82 FR 20549 (May 3, 2017).

    During FRA outreach on the 2014 Final Rule, FRA heard concerns from ASLRRA and the National Railroad Construction and Maintenance Association, Inc. (NRC), which were two of the associations identified in the 2014 Final Rule's Regulatory Impact Analysis (RIA) as likely model program developers. These two associations represent most of the 1,459 employers FRA projected would adopt model training programs rather than develop their own.2 Although ASLRRA had submitted several model training programs to FRA, and had made significant strides towards completing some programs, ASLRRA still had a significant number of training programs left to develop and submit.

    2 The RIA for the 2014 Final Rule provided the estimated costs and benefits, and explained FRA based this analysis on the premise that “most small railroads and contractors will use consortiums or model training programs developed by industry associations . . . thereby minimizing costs.” RIA at 15. In the RIA, FRA estimated that 1,459 railroads and contractors would use model programs.

    Based on ASLRRA's and NRC's concerns about their ability to submit their model training programs by the May 1, 2017, deadline, and the significant impact that not meeting the deadline would have on the costs associated with the rule and FRA's approval process, FRA issued the May 2017 Final Rule extending each of the implementation dates in the 2014 Final Rule by one year.

    Petition for Reconsideration

    On May 22, 2017, ASLRRA filed a petition for reconsideration of the May 2017 Final Rule. ASLRRA's petition was the only petition FRA received, and FRA did not receive any comments on the May 2017 Final Rule or ASLRRA's petition.

    In the petition, ASLRRA states that the association will need more than a one-year delay on each of the implementation dates in the 2014 Final Rule and requested that the one-year extension be extended further by another year. In the petition, ASLRRA states that it represents over 500 Class II and III railroads and has assumed the responsibility for preparing model training programs for its member railroads' use. ASLRRA asserts that it still has a significant number of model programs left to develop and submit.

    ASLRRA states in its petition that it is utilizing a large group of volunteer safety professionals from the ranks of its Safety and Training Committee to develop the model programs. ASLRRA is using these volunteers because the association asserts it would not otherwise have the resources to complete the task. With the commitments it received from volunteers, ASLRRA has mapped out a schedule to complete the model training programs by fall 2018.3 ASLRRA's estimated completion date would mean that many of its model programs would likely not be completed by the May 1, 2018, deadline afforded by the May 2017 Final Rule.

    3 Interested parties can view that schedule at https://www.regulations.gov/document?D=FRA-2009-0033-0039.

    Further, ASLRRA's petition states that extending the one-year delay will allow adequate time to comply with FRA's review and approval process and thereby assure its members that its model programs have been approved by FRA. According to ASLRRA the additional one-year extension will also allow each railroad adequate time to consider how it will implement each of the model programs it will adopt and whether it will need to adapt the programs to address any unique aspects of its operations.

    FRA's Response

    In response to ASLRRA's petition, FRA published a notice of proposed rulemaking on December 20, 2017. See 82 FR 60355. In that notice, FRA proposed to delay each of the implementation dates in the May 2017 Final Rule by an additional year, thereby delaying each of the implementation dates in the 2014 Final Rule by a total of two years. FRA provided a 30-day period for filing written comments; however, the only comment received during the comment period was from ASLRRA in support of its petition and the proposed rule. No adverse comments were received.

    In the proposed rule, FRA's response to ASLRRA's petition explained how delaying each of the implementation dates would improve compliance, reduce significant cost impacts associated with the rule, and prevent complicating the approval process. The basis for the proposed rule is the same basis for this final rule.

    In sum, the additional one-year delay of the implementation dates should allow all model training program developers and other regulated entities to meet the rule's deadlines. FRA understands that many regulated entities were on schedule to meet the original deadlines in the 2014 Final Rule, or were preparing to meet the deadlines delayed by the May 2017 Final Rule. For those regulated entities that are prepared to move forward in advance of any deadline, there is certainly no prohibition against doing so and implementing a more robust training program should benefit the overall safety of those employers who are early adopters.

    In consideration of the foregoing, FRA delays each of the implementation dates in the May 2017 Final Rule by an additional year, thereby delaying each of the implementation dates in the 2014 Final Rule by a total of two years.

    Section-by-Section Analysis Subpart B—Program Components and Approval Process Section 243.101 Employer Program Required

    The implementation dates in this section are delayed by a total of two years from the 2014 Final Rule so all employers have additional time to develop and submit training programs. Specifically, in paragraphs (a)(1) and (b) the implementation dates are changed to January 1, 2020, and likewise, in paragraph (a)(2) the implementation date is changed to May 1, 2021. This final rule thereby delays each implementation date an additional year from the May 2017 Final Rule.

    Section 243.105 Optional Model Program Development

    The implementation date in paragraph (a)(3) of this section is delayed by a total of two years from the 2014 Final Rule so that all model program developers have additional time to submit model programs, while also potentially benefiting from an expedited FRA review process. As amended, each model program submitted to FRA before May 1, 2019, is considered approved and may be implemented 180 days after the date of the submission, unless FRA otherwise advises that all or part of the program does not conform to the rule's requirements. This final rule thereby delays the implementation date an additional year from the May 2017 Final Rule.

    Section 243.111 Approval of Programs Filed by Training Organizations or Learning Institutions

    FRA is amending paragraph (b) of this section so that each training organization or learning institution that has provided training services to employers covered by this part has in total an additional two years from the 2014 Final Rule to continue to offer such training services without FRA approval. As amended, a training organization or learning institution that has provided training services to employers covered by this part before January 1, 2019, may continue to offer such training services without FRA approval until January 1, 2020. This final rule thereby delays both dates an additional year from the May 2017 Final Rule.

    Subpart C—Program Implementation and Oversight Requirements Section 243.201 Employee Qualification Requirements

    The implementation dates in this section are delayed by a total of two years from the 2014 Final Rule so all employers have additional time to designate each of their existing safety-related railroad employees by occupational category or subcategory, and only permit designated employees to perform safety-related service in such occupational category or subcategory.

    In paragraph (a)(1), the implementation date is changed to September 1, 2020, and likewise, in paragraph (a)(2) the implementation date is changed to January 1, 2022. This final rule thereby delays each implementation date an additional year from the May 2017 Final Rule. Further, the dates used for referencing total employee work hours for purposes of applying each paragraph are modified accordingly by adding an additional year from the May 2017 Final Rule.

    In paragraph (b), the implementation date is changed to January 1, 2020—an additional year from the May 2017 Final Rule.

    In paragraphs (e)(1) and (2), the implementation dates for refresher training are also delayed by a total of two years from the 2014 Final Rule. Thus, the implementation date in paragraph (e)(1) is changed to January 1, 2022, and the completion of that refresher training for each employee is required no later than December 31, 2024. In paragraph (e)(2), each employer with less than 400,000 total employee work hours annually is required to implement a refresher training program by May 1, 2023, and complete that refresher training for each employee by no later than December 31, 2025. This final rule thereby delays each implementation date in this paragraph an additional year from the May 2017 Final Rule.

    Regulatory Impact and Notices Executive Orders 12866, 13563, 13771, and DOT Regulatory Policies and Procedures

    This final rule is a non-significant regulatory action within the meaning of Executive Order 12866 and DOT policies and procedures. See 44 FR 11034 (Feb. 26, 1979). The final rule also follows the direction of Executive Order 13563, which emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Finally, the final rule follows the guidance of Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), which directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” FRA identified this final rule as a deregulatory effort to comply with E.O. 13771. For more information on Executive Order 13771, see the Office of Management and Budget's (OMB) April 5, 2017 “Memorandum: Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs.' ”

    In 2014, FRA published a Final Rule which established minimum training standards for each category and subcategory of safety-related railroad employee, as required by section 401(a) of the RSIA. FRA believes that by delaying the implementation dates of the 2014 Final Rule, this final rule will reduce the regulatory burden on the railroad industry. In May 2017, FRA issued a Final Rule which delayed each of the implementation dates in the 2014 Final Rule by one year. This final rule will extend the implementation deadlines by a total of two years from the 2014 Final Rule, one year of which has already been granted in the May 2017 Final Rule. This final rule will be beneficial for regulated entities by granting additional time to comply with the 2014 Final Rule.

    The costs arising from part 243 over the 20-year period evaluated include: The costs of revising training programs to include “hands-on” training where appropriate, as well as the costs of creating entirely new training programs for any employer that does not have one already; the costs of customizing model training programs for those employers that choose to adopt a model program rather than create a new program; the costs of annual data review and analysis required in order to refine training programs; the costs of revising programs in later years; the costs of additional time new employees may have to spend in initial training; the costs of additional periodic oversight tests and inspections; the costs of additional qualification tests; and the costs of additional time all safety-related railroad employees may have to spend in refresher training.

    FRA believes that additional hands-on and refresher training found in the 2014 Final Rule will reduce the frequency and severity of some future accidents and incidents. Expected safety benefits were calculated using full accident costs, which are based on past accident history, the values of preventing future fatalities and injuries sustained, and the cost of property damage. (Full accident costs are determined by the number of fatalities and injuries multiplied by their respective prevention valuations, and the cost of property damage.)

    By delaying the implementation dates of the 2014 Final Rule a total of two years, railroads and other entities subject to the rule will realize a cost savings. These entities will not incur costs during the first two years of this analysis. Also, costs incurred in future years will be discounted an extra two years, which will decrease the present value burden. The present value of costs will be less than if these entities were required to adhere to the original implementation dates. FRA has estimated this cost savings to be approximately $40.6 million, at a 3-percent discount rate, and $37.2 million, at a 7-percent discount rate. The table below shows the costs estimated at the 2014 Final Rule stage as well as the costs with the two-year implementation delay.

    Present value
  • (3%)
  • Present value
  • (7%)
  • Total costs (2-year delay) $250,309,438 $169,902,295 2014 Final Rule costs 290,932,418 207,068,184 Two-year-delay cost savings 40,622,980 37,165,889
    Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment

    FRA has determined and certifies that this final rule is not expected to have a significant impact on a substantial number of small entities. The requirements of this final rule apply to employers of safety-related railroad employees, whether the employers are railroads, contractors, or subcontractors. Although a substantial number of small entities are subject to this final rule, it provides relief by extending all of the implementation dates in the 2014 Final Rule, as amended by the May 2017 Final Rule. Thus, the economic impact of this final rule is not significant because it provides only additional time for all entities to comply with the 2014 Final Rule.

    This final rule has no direct impact on small units of government, businesses, or other organizations. State rail agencies are not required to participate in this program. State owned railroads will receive a positive impact by having additional time to comply.

    Paperwork Reduction Act

    There are no new collection of information requirements contained in this final rule and, in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., the recordkeeping and reporting requirements already contained in the 2014 Final Rule have been approved by OMB. The OMB approval number is OMB No. 2130-0597. Thus, FRA is not required to seek additional OMB approval under the Paperwork Reduction Act.

    Federalism Implications

    This final rule will not have a substantial 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. Thus in accordance with Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), preparation of a Federalism Assessment is not warranted.

    International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.

    This final rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

    Environmental Impact

    FRA has evaluated this final rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this final rule is not a major FRA action, requiring the preparation of an environmental impact statement or environmental assessment, because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 1999).

    In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this final rule that might trigger the need for a more detailed environmental review. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment.

    Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in such an expenditure, and thus preparation of such a statement is not required.

    Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). FRA evaluated this final rule in accordance with Executive Order 13211, and determined that this regulatory action is not a “significant energy action” within the meaning of the Executive Order.

    Executive Order 13783, “Promoting Energy Independence and Economic Growth,” requires Federal agencies to review regulations to determine whether they potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. 82 FR 16093 (March 31, 2017). FRA determined this final rule will not burden the development or use of domestically produced energy resources.

    Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

    List of Subjects in 49 CFR Part 243

    Administrative practice and procedure, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.

    The Final Rule

    For the reasons discussed in the preamble, FRA is amending 49 CFR part 243 as follows:

    PART 243—TRAINING, QUALIFICATION, AND OVERSIGHT FOR SAFETY-RELATED RAILROAD EMPLOYEES [AMENDED] 1. The authority citation for part 243 continues to read as follows: Authority:

    49 U.S.C. 20103, 20107, 20131-20155, 20162, 20301-20306, 20701-20702, 21301-21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

    Subpart B—Program Components and Approval Process—[Amended] 2. In § 243.101, revise paragraphs (a) and (b) to read as follows:
    § 243.101 Employer program required.

    (a)(1) Effective January 1, 2020, each employer conducting operations subject to this part with 400,000 total employee work hours annually or more shall submit, adopt, and comply with a training program for its safety-related railroad employees.

    (2) Effective May 1, 2021, each employer conducting operations subject to this part with less than 400,000 total employee work hours annually shall submit, adopt, and comply with a training program for its safety-related railroad employees.

    (b) Except for an employer subject to the requirement in paragraph (a)(2) of this section, an employer commencing operations subject to this part after January 1, 2020, shall submit a training program for its safety-related railroad employees before commencing operations. Upon commencing operations, the employer shall adopt and comply with the training program.

    3. In § 243.105, revise paragraph (a)(3) to read as follows:
    § 243.105 Optional model program development.

    (a) * * *

    (3) Each model training program submitted to FRA before May 1, 2019, is considered approved and may be implemented 180 days after the date of submission unless the Associate Administrator advises the organization, business, or association that developed and submitted the program that all or part of the program does not conform.

    4. In § 243.111, revise paragraph (b) to read as follows:
    § 243.111 Approval of programs filed by training organizations or learning institutions.

    (b) A training organization or learning institution that has provided training services to employers covered by this part before January 1, 2019, may continue to offer such training services without FRA approval until January 1, 2020. The Associate Administrator may extend this period at any time based on a written request. Such written requests for an extension of time to submit a program should contain any factors the training organization or learning institution wants the Associate Administrator to consider before approving or disapproving the extension.

    Subpart C—Program Implementation and Oversight Requirements—[Amended] 5. In § 243.201, revise paragraphs (a)(1) and (2), (b), and (e)(1) and (2) to read as follows:
    § 243.201 Employee qualification requirements.

    (a) * * *

    (1) By no later than September 1, 2020, each employer with 400,000 total employee work hours annually or more in operation as of January 1, 2020, shall declare the designation of each of its existing safety-related railroad employees by occupational category or subcategory, and only permit designated employees to perform safety-related service in that occupational category or subcategory. The Associate Administrator may extend this period based on a written request.

    (2) By no later than January 1, 2022, each employer with less than 400,000 total employee work hours annually in operation as of January 1, 2021, shall declare the designation of each of its existing safety-related railroad employees by occupational category or subcategory, and only permit designated employees to perform safety-related service in that occupational category or subcategory. The Associate Administrator may extend this period based on a written request.

    (b) Except for an employer subject to the requirement in paragraph (a)(2) of this section, an employer commencing operations after January 1, 2020, shall declare the designation of each of its existing safety-related railroad employees by occupational category or subcategory before beginning operations, and only permit designated employees to perform safety-related service in that category or subcategory. Any person designated shall have met the requirements for newly hired employees or those assigned new safety-related duties in accordance with paragraph (c) of this section.

    (e) * * *

    (1) Beginning January 1, 2022, each employer with 400,000 total employee work hours annually or more shall deliver refresher training at an interval not to exceed 3 calendar years from the date of an employee's last training event, except where refresher training is specifically required more frequently in accordance with this chapter. If the last training event occurs before FRA's approval of the employer's training program, the employer shall provide refresher training either within 3 calendar years from that prior training event or no later than December 31, 2024. Each employer shall ensure that, as part of each employee's refresher training, the employee is trained and qualified on the application of any Federal railroad safety laws, regulations, and orders the person is required to comply with, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders.

    (2) Beginning May 1, 2023, each employer with less than 400,000 total employee work hours annually shall deliver refresher training at an interval not to exceed 3 calendar years from the date of an employee's last training event, except where refresher training is specifically required more frequently in accordance with this chapter. If the last training event occurs before FRA's approval of the employer's training program, the employer shall provide refresher training either within 3 calendar years from that prior training event or no later than December 31, 2025. Each employer shall ensure that, as part of each employee's refresher training, the employee is trained and qualified on the application of any Federal railroad safety laws, regulations, and orders the person is required to comply with, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders.

    Juan D. Reyes, III, Chief Counsel.
    [FR Doc. 2018-08941 Filed 4-26-18; 8:45 am] BILLING CODE 4910-06-P
    83 82 Friday, April 27, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 929 [Doc. No. AMS-SC-18-0017; SC18-929-3 PR] Cranberries Grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York; Proposed Amendment to Marketing Order AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule invites comments on a proposed amendment to Marketing Order No. 929, which regulates the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. The Cranberry Marketing Committee (Committee), recommended adding authority to accept contributions from domestic sources. Contributed funds would be used solely for research and development activities authorized under the marketing order and would be free from any encumbrances as to their usage by the donor.

    DATES:

    Comments must be received by June 26, 2018.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Geronimo Quinones, Marketing Specialist, or Julie Santoboni, Branch Chief, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected].

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rulemaking is issued under Marketing Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Part 929 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    Section 608c(17) of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900) authorizes amendment of the Order through this informal rulemaking action. The Agricultural Marketing Service (AMS) will consider all timely-filed comments received in response to this rule, and based on all the information available, will determine if Order amendment is warranted. If AMS determines amendment of the Order is warranted, a subsequent proposed rule and referendum order would be issued, and producers and processors of cranberries regulated within the production area would be allowed to vote for or against the proposed amendment. AMS would then issue a final rule effectuating the amendment if it is approved by producers and processors in the referendum.

    The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

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

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

    AMS has considered these factors and has determined that this proposed amendment is not unduly complex and its nature is appropriate for utilizing the informal rulemaking process to amend the Order. A discussion of the potential regulatory and economic impacts on affected entities is discussed later in the “Initial Regulatory Flexibility Analysis” section of this proposed rule.

    The Committee, which is responsible for the local administration of the order and is comprised of growers of cranberries operating within the production area, unanimously recommended this proposal following deliberations at a public meeting. The proposed amendment would give the Committee authority to receive and use voluntary contributions from domestic sources to fund production research, marketing research, and market development projects, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption or efficient production of cranberries, as authorized under § 929.45, Research and development.

    Currently, program operations are solely financed through assessments collected from handlers regulated under the Order. Sources not affiliated with the Order have expressed an interest in supporting many of the research and development projects currently funded by the Order but the Committee has had to decline these offers. This proposal would provide authority to accept financial contributions from domestic sources. With the additional funding, more research and development projects could be undertaken.

    This proposal would add a new section, § 929.43, Contributions, to the Order which would authorize the Committee to accept voluntary financial contributions. Such contributions could only be accepted from domestic sources and would be free from any encumbrances or restrictions on their use by the donor. When received, the Committee would retain complete control of their use and the contributed funds would only be used to fund program activities authorized under § 929.45, Research and development.

    Initial Regulatory Flexibility Analysis

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

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 1,100 cranberry growers in the regulated area and approximately 65 cranberry handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    According to industry and Committee data, the average grower price for cranberries during the 2016-17 crop year was $23.50 per barrel, and total sales were around 9.5 million barrels. The value for cranberries that crop year totaled $223,250,000 ($23.50 per barrel multiplied by 9.5 million barrels). Taking the total value of production for cranberries and dividing it by the total number of cranberry growers (1,100) provides an average return per grower of $202,955. Based on USDA's Market News reports, the average free on board (f.o.b.) price for cranberries was around $30.00 per barrel. Multiplying the f.o.b. price by total utilization of 9.5 million barrels results in an estimated handler-level cranberry value of $285 million. Dividing this figure by the number of handlers (65) yields an estimated average annual handler receipt of $4.3 million, which is below the SBA threshold for small agricultural service firms. Therefore, the majority of growers and handlers of cranberries may be classified as small entities.

    The Committee's proposed amendment was unanimously recommended at a public meeting. If the proposal is approved in a referendum, there would be no direct financial effect on growers or handlers. This proposal would provide the Committee authority to accept additional funding. With the potential for additional funding, more research and promotional projects could be undertaken. Therefore, it is anticipated that both small and large producer and handler businesses would benefit from implementation of the proposed rule. Additionally, a past referendum concerning a similar action was supported by most eligible producers and processors. However, that referendum failed due to an oversight by processors not casting their ballot in a timely manner (82 FR 36991).

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0189, “Generic Fruit Crops.” No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large cranberry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    The Committee's meeting was widely publicized throughout the cranberry production area. All interested persons were invited to attend the meeting and encouraged to participate in Committee deliberations on all issues.

    The Committee meeting was public, and all entities, both large and small, were encouraged to express their views on this proposal.

    Finally, interested persons are invited to submit comments on the proposed amendment to the Order, including comments on the regulatory and information collection impacts of this action on small businesses.

    Following the analysis of any comments received on the amendment proposed in this rule, AMS will evaluate all available information and determine whether to proceed. If appropriate, a proposed rule and referendum order would be issued, and producers and processors would be provided the opportunity to vote for or against the proposed amendment. Information about the referendum, including dates and voter eligibility requirements, would be published in a future issue of the Federal Register. A final rule would then be issued to effectuate the amendment, if favored by producers and processors participating in the referendum.

    AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    General Findings

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

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

    2. The Order as proposed to be amended regulates the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order;

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

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

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

    A 60-day comment period is provided to allow interested persons to respond to this proposal. Any comments received on the amendment proposed in this rulemaking will be analyzed, and if AMS determines to proceed based on all the information presented, a referendum would be conducted to determine support for the proposed amendment. If appropriate, a final rule would then be issued to effectuate the amendment favored by producers and processors participating in the referendum.

    List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 929 is proposed to be amended as follows:

    PART 929—CRANBERRIES GROWN IN THE STATES OF MASSACHUSETTS, RHODE ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA, OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK 1. The authority citation for 7 CFR part 929 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Add § 929.43 to read as follows:
    § 929.43 Contributions.

    The Committee may accept voluntary contributions to pay expenses incurred pursuant to § 929.45, Research and development. Such contributions may only be accepted if they are sourced from domestic contributors and are free from any encumbrances or restrictions on their use by the donor. The Cranberry Marketing Committee shall retain complete control of their use.

    Dated: April 19, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-08526 Filed 4-26-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 929 [Doc. No. AMS-SC-18-0012; SC18-929-2 PR] Cranberries Grown in States of Massachusetts, et al.; Establishment of 2018-19 Seasonal Volume Regulation AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule invites comments on a recommendation to establish a grower allotment percentage for the 2018-19 crop year under the marketing order for cranberries grown in the production area (Order). This proposed action would limit the quantity of cranberries from the 2018-19 crop a handler may purchase from, or handle on behalf of, growers, and would allow for the diversion of processed products from that year. This proposed action would also specify handlers subject to the regulation, revise the definition of outlets for excess fruit, revise dates by which certain actions are due, and establish exemptions to the proposed action.

    DATES:

    Comments must be received by May 29, 2018.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This action, pursuant to 5 U.S.C. 553, proposes amendments to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposal is issued under Marketing Agreement and Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Part 929 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Cranberry Marketing Committee (Committee) locally administers the Order and is comprised of growers of cranberries operating within the production area, and a public member.

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Order provisions provide that the Committee may recommend and implement, subject to USDA approval, volume control regulation which would decrease the available supply of cranberries whenever the Secretary of Agriculture (Secretary) finds that “such regulation will tend to effectuate the declared policy of the Act.” Accordingly, this proposed rule would establish a marketable quantity and grower allotment percentage for cranberries produced during the 2018-19 crop year, beginning September 1, 2018, and ending August 31, 2019.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposed rule invites comments on the establishment of a marketable quantity and grower allotment percentage for the 2018-19 crop year. This proposal is the result of the Committee's recommendations made during its August 4, and August 31, 2017, meetings, and a February 18, 2018, email vote. The proposal would establish a marketable quantity of 7.275 million barrels and a grower allotment percentage of 75 percent. This proposed action would also allow handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. It would also establish an exemption for organically grown cranberries, specify handlers subject to the regulation, revise the definition of outlets for excess fruit, and revise dates by which certain actions are due.

    The Committee also recommended an exemption for organically grown cranberries, and an exemption of 2,500 barrels for each grower. After much consideration, USDA determined the recommended grower exemption of 2,500 barrels should be revised. Consequently, this proposal does not include the exemption of 2,500 barrels for each grower and instead proposes to exempt handlers that processed less than 125,000 barrels during the 2017-18 fiscal year, or handlers that did not have carryover inventory at the end of the 2017-18 fiscal year. Accordingly, growers delivering their fruit to exempt handlers would not be subject to the allotment.

    In addition, in a February 18, 2018 vote by email, the Committee voted unanimously to adjust reporting dates associated with the proposed allotment regulation. These changes were previously discussed and supported by the Committee at a meeting on April 22, 2014 as part of the consideration of another volume regulation for which a rule was not issued.

    The recommendations included in this proposed rule would adjust supply to more closely meet market demand, improve grower and handler returns, and help reduce inventory.

    Sections 929.49 and 929.52 provide, in part, authority to establish a marketable quantity and grower allotment percentage. Section 929.14 defines marketable quantity as the volume of cranberries needed to meet market demand and provide for an adequate carryover into the next season. The allotment percentage is derived by dividing the marketable quantity by the total of all growers' sales histories. Section 929.48 outlines procedures for computing a grower's sales history.

    Section 929.49 also prescribes how the grower allotment percentage is calculated and distributed to growers and handlers. Each grower's allotment volume is calculated by multiplying the individual's sales history by the allotment percentage. A grower's allotment is the total volume a handler may purchase from, or handle on behalf of, that grower during a year of volume regulation. Cranberries received by a handler that exceed the sum of their growers' allotments can be used to fill unused allotment. Any remaining cranberries are defined as excess cranberries as defined in § 929.59, which also outlines the procedures and dates by which excess cranberries are to be diverted. Section 929.61 prescribes outlets for excess cranberries, which are further defined in § 929.104.

    In addition, § 929.50 provides authority for the transfer of sales history and annual allotment. Section 929.51 requires the Committee to consider market conditions, including supply and demand, prior to recommending an allotment percentage, and that any recommendation be made by March 1. Section 929.58(a) provides the authority to exempt from any or all requirements the handling of cranberries in such minimum quantities as the Committee, with the approval of the Secretary, may prescribe. Section 929.58(b) provides, in part, the authority to exempt from any or all requirements the handling of cranberries of such forms or types, including organic cranberries, as the Committee, with the approval of the Secretary, may prescribe.

    Domestic cranberry production has been increasing over the past few years, up from 8.0 million barrels in 2012 to 9.6 million barrels in 2016. During the last few years, demand has remained relatively flat, and has not kept pace with the increases in supply. This has led to increasing levels of inventories. Ending inventory levels increased from 5.8 million barrels in 2012 to 9.7 million barrels in 2016.

    Demand for cranberries is inelastic, meaning changes in consumer price have a minimal effect on total sales. However, grower prices are very sensitive to changes in supply. Consequently, higher inventory levels place downward pressure on grower prices for cranberries and reduce grower returns. Data reviewed by the Committee indicates that the price per barrel received by some growers has fallen from $30 a barrel in 2011 to $10 a barrel in 2016. With the cost of production estimated at approximately $35 a barrel, for many growers returns have fallen below the cost of production.

    The Committee met on August 4, 2017, and again on August 31, 2017, and discussed the estimated levels of supply and demand and how market conditions were impacting the industry. The Committee discussed the approximate levels of production for the 2017-18 season, forecasting production at approximately 9.1 million barrels. Carryover inventory was estimated at approximately 9.9 million barrels and foreign acquired cranberries were expected to provide an additional 2.1 million barrels, for a total available supply of approximately 21.1 million barrels for the year. After accounting for shrinkage, the Committee agreed on an adjusted supply of 20.4 million barrels for the 2017-18 crop year.

    Using these numbers, with estimated sales of 9.5 million barrels for 2017-18, the Committee calculated a potential carryover for the 2018-19 season of 10.9 million barrels. This is an approximately one million barrel increase from the carryover inventory for the 2017-18 crop year. Based on these numbers, carryover inventory for the 2018-19 crop year would be approximately 115 percent of annual sales.

    In discussing market conditions, the Committee recognized that sales have been relatively flat. The Committee also noted supply has been exceeding demand by about one million barrels a year. Using crop and sales estimates similar to 2017-18, and the estimated carryover from the 2017-18 season of 10.9 million barrels, the potential carryover supply at the end of the 2018-19 crop year could increase by another one million barrels to 11.9 million if no action is taken to regulate supply.

    In reviewing these numbers, the Committee agreed the industry is faced with a large inventory that continues to build. To address the problems associated with oversupply and to try to stabilize grower returns, the Committee discussed the need to establish volume regulation. The Committee considered several options, including establishing free and restricted percentages under a handler withholding for the 2017-18 crop year, establishing a grower allotment for the 2018-19 season, or recommending both regulations.

    Considering the levels of inventory and low grower returns, the Committee voted to recommend a handler withholding, setting the free and restricted percentages of 85 percent and 15 percent, respectively, for the 2017-18 season. The proposed rule to establish these percentages was published in the Federal Register on January 2, 2018 (83 FR 72). The Committee estimated that the 15 percent restriction would remove approximately one million barrels from inventory, helping to maintain inventories at current levels. While the Committee recognized a small restriction would not immediately balance supply with demand, even a small restriction would remove a portion of the volume from the market and help prevent an additional increase in inventory.

    With the proposed handler withholding removing an estimated one million barrels from the market, the industry would still have approximately 10 million barrels remaining in inventory. Given the static demand and anticipated market conditions for the 2018-19 fiscal year, the Committee also recommended establishing a grower allotment percentage for the 2018-19 fiscal year.

    The Committee discussed various levels of restriction, being sensitive to the impact volume control could have on small growers and handlers. Some small handlers are able to sell all their production each year and do not maintain an inventory. Several Committee members stated a large restriction would place a hardship on these small handlers. However, the Committee also recognized that volume control measures could help increase grower returns by helping to align supply with demand.

    In addition, establishing an allotment regulation can help growers reduce production costs. Growers could choose to take bogs out of production, or reduce inputs such as fertilizer and pesticides in order to reduce their production volume to match their allotment. These and other steps could help growers reduce their costs of production for the 2018-19 crop.

    Based on the information available, the Committee recommended establishing a marketable quantity of 7.275 million barrels and an allotment percentage of 75 percent for the 2018-19 crop year. With volume regulation, returns are expected to be higher than without volume regulation. This increase is beneficial to all growers and handlers regardless of size, and enhances total revenues in comparison to no volume regulation. Establishing an allotment percentage allows the industry to help stabilize supplies. This proposal could remove a potential 2 million barrels from supply, reduce industry inventory, and increase industry returns. This proposed rule would add a new § 929.253 to establish the marketable quantity and grower allotment.

    The Committee also recommended that handlers have the option to receive cranberries over their grower allotment and process up to 50 percent of the excess cranberries received rather than divert them in fresh form, as currently required. Handlers that do so would need to divert an amount of 2018-19 cranberry processed products equivalent to the volume of excess cranberries processed.

    The Committee made this recommendation recognizing that processing fresh fruit to produce one of its top-selling items, sweetened dried cranberries (SDC), results in juice concentrate as a by-product. A significant amount of current inventory is in the form of juice concentrate. By allowing handlers to process a portion of the excess cranberries they receive, more fresh cranberries would be available to produce products requiring whole cranberries, such as SDC, and the diversion of concentrate would help prevent additional build-up of inventory. Handlers would still have the option to divert fresh berries as excess supply.

    To allow for the diversion of processed products, § 929.104(b), which currently prohibits the handling of excess fruit, would be removed. To ensure the diversion of processed products in lieu of fresh cranberries is correctly accounted for, the final rule for volume regulation for the 2017-18 season (83 FR 14350) adds guidance under § 929.107 along with a conversion table. The table recognizes different conversion equivalencies of cranberries to processed product based on the volume of Brix concentrate.

    Brix is the method for measuring the amount of sugar contained in the cranberry products, and the industry average for concentrate is 50 Brix. The Committee acknowledged that the Brix level can vary depending on the growing region and farming practices. The proposed table would help ensure that the diversion of processed product in lieu of fresh berries is applied equitably among all handlers.

    Using the proposed conversion table, handlers could determine the amount of cranberry concentrate they would need to divert, in lieu of fresh berries, to cover the fresh cranberry equivalent of any excess cranberries processed. Juice concentrate should comprise the vast majority of processed product used for diversion. Should requests be made to use other processed products for diversion, conversion rates for those products would be provided by the Committee based on information provided by the requesting handler.

    For example, a grower with a sales history of 1,000 barrels would have an allotment of 750 barrels (1,000 × .75). If the grower delivered all 1,000 barrels to the handler, the handler would have 250 barrels of excess fruit. Under this proposed rule, the handler could divert 250 barrels of fresh fruit to approved outlets or divert half (125 barrels of fresh fruit) and process half, diverting a 125 barrel equivalent in 2018-19 processed product.

    The Committee also recommended changes to date requirements currently specified in the Order. Section 929.59(b) currently states that “{p}rior to January 1, or such other date as recommended by the committee and approved by the Secretary, handlers holding excess cranberries shall submit to the committee a written plan outlining procedures for the systematic disposal of such cranberries in the outlets prescribed in § 929.61.” The Committee agreed the date for submitting disposal plans should be extended in order to give handlers more time to consider how to divert their excess cranberries. Therefore, the Committee recommended changing the deadline prescribed in § 929.59(b) from January 1 to March 1 of the regulated season.

    Section 929.59(c) states that “{p}rior to March 1, or such other date as recommended by the committee and approved by the Secretary, all excess cranberries shall be disposed of pursuant to § 929.61.” Given the change in the due date for the diversion plans, the Committee agreed that this date should also be changed to provide handlers with enough time to comply with this requirement. Therefore, the Committee recommended changing the date by which diversion is to be completed from March 1 to August 31. This proposed rule would add a new § 929.159 to make these date changes.

    Section 929.62(a) requires each grower to file a report with the Committee by January 15 of each year providing the following information: Total acreage harvested and whether owned or leased; total commercial cranberry sales in barrels from such acreage; the amount of acres either in production but not harvested, or taken out of production, and the reason(s) why; the amount of new or replanted acreage coming into production; the name of the handler(s) to whom commercial cranberry sales were made; and such other information as may be needed for implementation and operation of this section. Growers might not have all necessary information to complete the report by the current deadline. Therefore, the Committee recommended changing the grower reporting date from January 15 toMarch 1.

    The Committee also recommended organically grown cranberries be exempt from this proposed regulation as they serve a niche market and represent a very small portion of the total crop. All other cranberry production, including fresh cranberries, would be subject to regulation under the grower allotment volume regulation.

    To address the burden the volume regulation would have on small growers and handlers, the Committee also recommended providing an exemption of 2,500 barrels for all growers. Under the Committee's recommendation, the exemption would be applied following the calculation of a grower's allotment. However, after much consideration, USDA determined the exemption recommendation should be revised. Rather than provide an exemption of 2,500 barrels for each grower, this proposed action would exempt small handlers who processed less than 125,000 barrels from the allotment requirement. Further, handlers who did not have carryover inventory at the end of the 2017-18 fiscal year would also be exempt from the allotment requirement. Accordingly, growers delivering their fruit to exempt handlers would not be subject to the allotment.

    These changes would allow handlers who have matched their production with market demand to continue to serve their customer base and maintain their market share. Small growers would also have the option of delivering their fruit to handlers who are not subject to the regulation. Handlers subject to the allotment percentage should be able to meet any market shortfalls by utilizing cranberries or cranberry products available in inventory. The provision allowing handlers to process a portion of their excess cranberries should also help provide some flexibility.

    With this proposed action, only those handlers carrying inventory would be subject to meeting the allotment requirement. In reviewing the Committee's recommendation and other available industry information, USDA has determined that existing inventories in excess of 9 million barrels are putting the most downward pressure on returns to both growers and handlers. Consequently, this proposal would put more focus on reducing the volume in inventory.

    Section 929.125 provides authority for a grower to request a review by an appeals subcommittee if the grower is dissatisfied with his or her sales history calculation provided by the Committee. The grower must request the review within 30 days after receipt of the Committee's determination of sales history and must submit documentation showing why he or she believes the calculation is inaccurate. Within 15 days after notification of the appeals subcommittee's decision, if the grower is not satisfied with the decision, the grower may further appeal to the Secretary.

    A grower may transfer all or part of their allotment to another grower, provided that the transferred allotment remains assigned to the same handler. Transfers of allotment between growers having different handlers may occur with the consent of both handlers. All such transfers would have to be reported to the Committee. After all allotment transfers have occurred, any unused allotment would be transferred to the Committee. The Committee would then redistribute any unused allotment to handlers having excess cranberries in an amount proportionate to each handler's total allotment. These provisions help ensure that excess supply is utilized, to the extent possible, through unfilled allotment.

    The Committee considered the estimated level of production and anticipated demand, and determined that without some action on the part of the Committee, inventory levels would continue to increase throughout the 2018-19 season. The Committee believes using the volume control authorities in the Order would help stabilize marketing conditions for cranberries by helping to adjust supply to meet market demand and improve grower returns.

    Accordingly, this proposal would establish a grower allotment at 75 percent for the 2018-19 season. It would also give handlers the option to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. This proposed rule would also exempt organically grown cranberries, specify handlers subject to the regulation, revise the definition of outlets for excess fruit, and revise dates by which certain actions are due.

    Initial Regulatory Flexibility Analysis

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

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 1,100 cranberry growers in the regulated area and approximately 65 cranberry handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    According to industry and Committee data, the average grower price for cranberries during the 2016-17 season was $23.50 per barrel and total sales were approximately 9.5 million barrels. The value for cranberries that year totaled $223,250,000 ($23.50 per barrel multiplied by 9.5 million barrels). Taking the total value of production for cranberries and dividing it by the total number of cranberry growers provides an average return per grower of $202,955. Using the average price and utilization information, and assuming a normal distribution, the majority of cranberry growers receive less than $750,000 annually.

    According to USDA's Market News report, the average free on board (f.o.b.) price for cranberries was approximately $30.00 per barrel. Multiplying the f.o.b. price by total utilization of 9.5 million barrels results in an estimated handler-level cranberry value of $285 million. Dividing this figure by the number of handlers (65) yields an estimated average annual handler receipt of $4.3 million, which is below the SBA threshold for small agricultural service firms. Therefore, the majority of producers and handlers of cranberries may be classified as small entities.

    While cranberry production has continued to rise, demand has failed to keep pace, and inventories have been increasing. In an industry such as cranberries, product can be stored in inventory for long periods of time. Large inventories are costly to maintain, difficult to market, and have a price-depressing effect. When supply outpaces demand and results in high levels of inventories, grower and handler returns can be negatively impacted.

    Demand for cranberries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, grower prices are very sensitive to changes in supply. A grower allotment program results in a decrease in supply as handlers can only purchase a portion of a grower's production, which is based on the grower's past sales history. Even a small shift in supply can have a positive effect on grower prices. Therefore, using a grower allotment program to reduce supply should increase grower prices and revenues.

    This proposed rule would establish a grower allotment of 75 percent for the 2018-19 crop year. It would also allow handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. In addition, this proposal would exempt organically grown cranberries, specify handlers subject to the regulation, revise the definition of outlets for excess fruit, and revise dates by which certain actions are due. These actions are designed to help stabilize marketing conditions, reduce burdensome inventories, and improve grower and handler returns. This rule revises §§ 929.104 and 929.105 and establishes new §§ 929.159 and 929.253. The authority for these actions is provided for in §§ 929.48, 929.49, 929.51, 929.52, 929.58, 929.59, 929.61, and 929.62. These changes are based on Committee recommendations from meetings on August 4 and August 31, 2017, and a February 18, 2018, email vote.

    While these actions could result in some additional costs to the industry, the benefits are expected to outweigh them. The purpose of establishing an allotment percentage is to address oversupply conditions and to stabilize grower prices. The industry has a significant volume in inventory, and this has had a negative impact on grower and handler returns. Without volume control, inventories would likely continue to increase, further lowering returns.

    Inventories have significantly increased since 2011. In 2011, existing inventories were around 4.6 million barrels. By the end of the 2016-17 season, inventories were approximately 9.9 million barrels, and by the end of the 2017-18 season, inventories are projected to be approximately 10.9 million barrels. Inventories as a percentage of total sales have also been increasing from approximately 50 percent in 2010 to approximately 103 percent in 2016, and could reach an anticipated 115 percent after the 2017-18 season. These inventories have had a depressing effect on grower prices, which for many growers have fallen below their cost of production.

    Retail demand for cranberries is highly inelastic, which indicates changes in consumer prices do not result in significant changes in the quantity demanded. Consumer prices are also not significantly impacted by minor changes in cranberry supplies. Therefore, this action should have little or no effect on consumer prices and should not result in a reduction in retail sales. However, even a small shift in supply could increase grower and handler returns. The use of allotment percentages would likely have a positive impact on grower and handler returns for this crop year.

    This proposal would result in some fruit being taken off the market. However, a sufficient amount of fruit would still be available to supply all aspects of the market. In addition, allowing handlers the option to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products, would provide handlers some additional flexibility and may help reduce inventories of juice concentrate, one of the largest segments of existing inventory.

    There are also secondary outlets available for excess fruit, including foreign markets except Canada, charitable institutions, nonhuman food use, and research and development projects. While these alternatives may provide different levels of return than sales to primary markets, they play an important role for the industry. In addition, if demand is greater than anticipated, there are significant amounts of fruit in inventory that could be utilized to meet demand.

    This action would also exempt small handlers who processed less than 125,000 barrels in 2017-18 from the allotment percentage. Consequently, small handlers whose acquired volume is 125,000 barrels or less would be exempt from the allotment volume restriction. This would reduce the burden the volume restriction has on small handlers and their growers.

    In addition, handlers who did not have carryover inventory at the end of the 2017-18 fiscal year would also be exempt from the allotment percentage. This would allow handlers that have matched their production with market demand to continue to serve their customer base and maintain their market share. Handlers subject to the restriction should be able to meet any shortfalls by utilizing cranberries or cranberry products they have in inventory.

    Further, making the recommendation to regulate the volume handled under a grower allotment program could result in some cost savings for growers depending upon what actions they may take to adjust supply.

    As the allotment represents a percentage of the grower's sales history, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities. Likewise, growers and handlers, regardless of size, would benefit from the stabilizing effects of this proposal.

    One alternative considered by the Committee was not to impose a volume regulation during the 2018-19 crop year. However, Committee members believed that inventory levels were such that some form of volume control was necessary to help stabilize marketing conditions.

    The Committee also considered other allotment percentage levels. However, some members were concerned that setting an allotment percentage that was too restrictive could negatively impact small growers. The Committee also considered not recommending a provision to allow a percentage of excess cranberries to be processed into cranberry products. The Committee determined that allowing handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment would provide additional volumes of fresh cranberries for processing and would provide handlers some flexibility while not adding additional juice concentrate to the existing inventory levels. Therefore, for the reasons mentioned above, these alternatives were rejected by the Committee.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large cranberry growers or handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

    AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    In addition, the Committee's meetings were widely publicized throughout the cranberry industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the August 4, 2017 and August 31, 2017 meetings were public meetings and all entities, both large and small, were able to express views on these issues. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

    List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 929 is proposed to be amended as follows:

    PART 929—CRANBERRIES GROWN IN STATES OF MASSACHUSETTS, RHODE ISLAND, CONNECTICUT, NEW JERSEY, WISCONSIN, MICHIGAN, MINNESOTA, OREGON, WASHINGTON, AND LONG ISLAND IN THE STATE OF NEW YORK 1. The authority citation for 7 CFR part 929 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    Subpart B—Administrative Requirements 2. In § 929.104, revise paragraph (a) and remove and reserve paragraph (b) to read as follows:

    (a) In accordance with § 929.61, excess cranberries may be diverted only to the following noncommercial or noncompetitive outlets:

    3. In § 929.105, add paragraph (c) to read as follows:

    (c) Beginning with crop year 2018-19, the due date for the grower report required under § 929.62(a) is changed to March 1.

    4. Add § 929.159 to read as follows:
    § 929.159 Excess cranberries.

    (a) Beginning with crop year 2018-19, handlers holding excess cranberries shall submit to the Committee a written plan outlining procedures for the systematic disposal of such cranberries as specified in § 929.59(b) by March 1.

    (b) Beginning with crop year 2018-19, all excess cranberries shall be diverted as specified in § 929.59(c) prior to August 31.

    5. Add § 929.253 to read as follows:
    § 929.253 Marketable quantity and allotment percentage for the 2018-19 crop year.

    (a) The marketable quantity for the 2018-19 crop year is set at 7.275 million barrels and the allotment percentage is designated at 75 percent.

    (b) Organically grown fruit shall be exempt from the volume regulation requirements of this section. Small handlers who processed less than 125,000 barrels during the 2017-18 fiscal year are exempt from the volume regulation requirements of this section. Any handler who did not have carryover inventory at the end of the 2017-18 fiscal year is also exempt from the volume regulation requirements of this section.

    (c) Handlers have the option to process up to 50 percent of the excess cranberries received over their growers' allotments into dehydrated cranberries or other processed products. Handlers utilizing this option shall divert an amount of 2018-19 processed products equivalent to the volume of excess cranberries processed as provided for in § 929.107. The remaining volume of excess cranberries must be diverted as whole fruit.

    Dated: April 19, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-08528 Filed 4-26-18; 8:45 am] BILLING CODE 3410-02-P
    SMALL BUSINESS ADMINISTRATION 13 CFR Part 121 Small Business Size Standards: Revised Size Standards Methodology AGENCY:

    U.S. Small Business Administration.

    ACTION:

    Notification of availability of white paper; comment request.

    SUMMARY:

    The U.S. Small Business Administration (SBA or Agency) advises the public that it has revised its white paper explaining how it establishes, reviews and modifies small business size standards. The revised white paper, entitled “SBA's Size Standards Methodology (April, 2018),” (Revised Methodology) is available for review and comments. This notification discusses the comments SBA received on the methodology that was applied to the recent review of size standards under the Jobs Act and Agency's responses, followed by a description of major changes to the methodology and their impacts on size standards.

    DATES:

    SBA must receive comments to this revised methodology on or before June 26, 2018.

    ADDRESSES:

    The revised “Size Standards Methodology (2017)” (Revised Methodology) White Paper is available on the SBA's website at https://www.sba.gov/size-standards-methodology and on the Federal rulemaking portal at https://www.regulations.gov. Comments may be submitted on the Revised Methodology, identified by Docket number SBA-2018-0004, by one of the following methods: (1) Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments, (2) Mail/Hand Delivery/Courier: U.S. Small Business Administration, Khem R. Sharma, Chief, Office of Size Standards, 409 Third Street SW, Mail Code 6530, Washington, DC 20416, or (3) Email at [email protected]

    SBA will post all comments on https://www.regulations.gov. If you wish to submit confidential business information (CBI) as defined in the User Notice at https://www.regulations.gov, please submit the information to Khem R. Sharma, Chief, Office of Size Standards, 409 Third Street SW, Mail Code 6530, Washington, DC 20416, or send an email to [email protected] Highlight the information that you consider to be CBI and explain why you believe SBA should hold this information as confidential. SBA will review the information and make the final determination of whether it will publish the information or not.

    FOR FURTHER INFORMATION CONTACT:

    Khem R. Sharma, Chief, Office of Size Standards, (202) 205-7189 or [email protected]

    SUPPLEMENTARY INFORMATION:

    The revised white paper, entitled “SBA's Size Standards Methodology” describes the SBA's methodology for establishing, reviewing and adjusting its small business size standards pursuant to the Small Business Act (Act) and related legislative guidelines. Under the Act (Pub. L. 85-536, as amended), the SBA's Administrator has authority to establish small business size standards for Federal government programs. The white paper provides a detailed description of the size standards methodology. SBA welcomes comments and feedback on the Revised Methodology, which SBA intends to apply to the forthcoming five-year comprehensive review of size standards required by section 1344(a)(2) of the Small Business Jobs Act of 2010 (Jobs Act), Public Law 111-240, Sep. 27, 2010.

    To determine eligibility for Federal small business assistance programs, SBA establishes small business definitions (commonly referred to as size standards) for private sector industries in the United States. SBA's existing size standards use two primary measures of business size: Average annual receipts and number of employees. Financial assets and refining capacity are used as size measures for a few specialized industries. In addition, the SBA's Small Business Investment Company (SBIC), 7(a), Certified Development Company (CDC/504) Programs determine small business eligibility using either the industry based size standards or net worth and net income based alternative size standards. Presently, there are 28 different industry based size standards, covering 1,031 North American Industry Classification System (NAICS) industries and 14 “exceptions.” Of these, 531 are based on average annual receipts, 509 on number of employees (one of which also includes barrels per day total refining capacity), and five on average assets.

    In 2007, SBA initiated a comprehensive review of size standards. Subsequently, Congress passed the Small Business Jobs Act in 2010 (Jobs Act) (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010) requiring SBA to review, every five years, all size standards and make necessary adjustments to reflect market conditions. SBA recently completed the first five-year review of size standards under the Jobs Act and will start the next five-year review in the near future. Usually, once every five years, SBA adjusts all monetary based size standards for inflation. The SBA's latest inflation adjustment to size standards became effective on July 14, 2014 (79 FR 33647 (June 12, 2014)). SBA also updates its size standards, also every five years, to adopt the Office of Management and Budget's (OMB's) quinquennial NAICS revisions to its table of small business size standards. SBA adopted the OMB's 2017 NAICS revisions for its size standards, effective October 1, 2017 (82 FR 44886 (September 27, 2017)).

    As part of the comprehensive size standards review initiated in 2007, SBA established a detailed methodology explaining how SBA establishes, reviews and adjusts size standards based on industry and Federal contracting factors. In 2009, SBA published a document in the Federal Register notifying the public that SBA's “Size Standards Methodology” White Paper (Methodology) is available on the SBA's website at www.sba.gov/size for review and comments (74 FR 53940 (October 21, 2009)). Specifically, in the notification and in all subsequent proposed rules revising size standards for various NAICS Sectors, SBA sought comments on a number of issues concerning its Methodology, such as whether there are alternative methodologies that SBA should consider; whether there are alternative or additional factors or data sources that SBA should evaluate; whether SBA's approach to establishing small business size standards makes sense in the current economic environment; whether SBA's applications of anchor size standards are appropriate in the current economy; whether there are gaps in SBA's Methodology because of the lack of comprehensive data; and whether there are other facts or issues that SBA should consider. The comment period for the Methodology was open from October 21, 2009 to September 30, 2015.

    SBA also sought comments on a number of policy questions that the Agency has to consider when developing a methodology for establishing, evaluating and revising its small business size standards, such as how high a small business size standard should be, should there be a single measure of business size for all industries (i.e., employees or annual receipts), should there be a fixed number of “bands” of size standards or a separate size standard for each industry, and should employee based size standards be adjusted to account for labor productivity growth and technology similar to the adjustment of monetary based size standards for inflation.

    SBA received 17 comments specifically on its Methodology and many comments addressing the different aspects of the Methodology as applied to various proposed rules on both receipts-based and employee-based size standards. These comments and SBA's responses are discussed below.

    Comments on Primary Factors

    1. Average size: One commenter noted that the accuracy of the weighted average would increase if the size groupings for higher employment and receipts levels were more refined. A few commenters suggested using the median firm size, rather than average firm size.

    SBA's response: SBA agrees, but increasing the number of size groupings for higher employment and receipts levels will increase the amounts of data that will be suppressed for the disclosure restriction. As the number of firms declines with receipts or employment levels in every industry, more granular size groupings would result in only a very few firms in higher size groupings, thereby causing employment and receipts levels to be suppressed to ensure confidentiality. A sizeable number of cells are already suppressed in the existing size groupings, especially at the 6-digit NAICS industry levels that SBA uses as the bases for size standards. When industry data on firm sizes are found or likely to be very skewed, SBA will consider using the median firm size, instead of the average.

    2. Start-up costs and entry barriers: One commenter argued that average assets is not a good measure of start-up costs and entry barriers, such as product differentiation, brand reputations, patents, intellectual property, economies of scale, and the need for specialized capital goods, especially in services industries. Data on asset size are not publicly available for many private companies and, where they are available, the data will not provide useful quantitative information on the magnitude of start-up costs and entry barriers across industries, the commenter added. For these reasons, the commenter recommended that SBA should consider dropping average assets as a proxy for start-up costs and entry barriers as one of the primary factors in size standards analysis.

    Another commenter argued that while using average assets may be a useful method for assessing barriers to entry into the commercial market, it fails to capture the extensive administrative and compliance requirements associated with Federal contracts, the different skills required for Federal contracts as compared to the commercial market, and the size of contracts, all of which also act as significant entry barriers to the Federal market. The commenter recommended that SBA also evaluate the unique costs of entering the Federal marketplace.

    SBA's response: Given the lack of actual data on various measures of start-up costs and entry barriers, including product differentiation, economies of scale, etc., SBA believes that average assets size does serve as a reasonable proxy for start-up costs and entry barriers. Industries with high average assets are likely to have higher capital requirements and greater barriers for new firms to enter the market, thereby supporting higher size standards, all else being equal. The evaluation of more, not fewer, factors will result in more robust and analytically sound size standards.

    SBA agrees that these are several important factors determining businesses' ability to enter the Federal market and they should be considered when evaluating size standards. However, there exists no readily available data in a form to be able to formalize these factors in the size standards methodology. Given the lack of data, SBA believes that evaluation of small business Federal market share relative to small business share of the industry total revenues would provide a fairly good indication of how successful small businesses are in participating in the Federal market. In addition, SBA also looks at the distribution of Federal contracts by firm size and size of contracts, when appropriate.

    3. Industry competition: One commenter noted that evidence does not support using a 40 percent cut off of the four-firm concentration ratio (CR4) as a dividing line between competitive industries and oligopolistic industries or ones that are characterized by market dominance from a few firms. The commenter suggested that SBA should consider all CR4 values, not just those above the 40 percent threshold, as a measure of industry competition in establishing size standards. It would be methodologically more sound to use the CR4 statistic directly in the size standard interpolations to avoid double counting the receipts of the four largest firms, the commenter added.

    Another, an industry association representing engineering firms, recommended that SBA consider using the “8-firm concentration ratio,” which it claimed is also a widely accepted tool for measuring market share (although no references were provided to support this claim) for evaluating industry competition. The commenter stated that the 8-firm concentration ratio provides a more accurate picture of market share controlled by the largest firms in an industry. According to the association, using the 8-firm concentration ratio, SBA may find that the largest firms control more than 40 percent in more industries than using the 4-firm concentration ratio and SBA may have to increase size standards for those industries.

    SBA's response: SBA is aware of various measures (e.g., 4-firm ratio, 8-firm ratio, Herfindahl-Hirschman index, etc.) that are used to measure industry competition and dominance. Because the 4-firm concentration ratio is simple for the public to understand and has long been used and accepted as an industry factor in size standards analysis, SBA continued using it until the recently completed comprehensive size standards review. This is also the most widely used measure in the relevant literature, as described in its Methodology. For these reasons, in the past SBA used the 40 percent 4-firm concentration ratio as the dividing line between the competitive industries and concentrated industries. Further, the special tabulation of the 2002 Economic Census that SBA used for developing the Methodology and the 2007 Economic Census tabulation SBA used in the recently completed comprehensive size standards review only included data to compute the 4-firm concentration ratio, not the 8-firm concentration ratio. However, using the 2012 Economic Census Tabulation, SBA has evaluated the appropriateness of using the 8-firm concentration ratio in the Revised Methodology to be used in the forthcoming review of size standards.

    In response to the comment as well as based on its own evaluation of the current methodology, in the Revised Methodology, SBA is proposing to use all values of the 4-firm concentration ratios directly in the analysis, as opposed to using only 40 percent and above. Accordingly, as explained in the Revised Methodology, the industries with lower 4-firm concentration ratios will be assigned lower size standards and those with higher 4-firm concentration ratios higher size standards, all else remaining the same. SBA also repeated the same analysis using the 8-firm concentration ratio. Because the results based on the 4-firm concentration ratio were found to be quite comparable to the results based on the 8-firm concentration ratio, SBA has decided to continue using the 4-firm concentration ratio as the measure of industry competition.

    4. Federal contracting factor: While commenters generally supported SBA's approach to assigning higher size standards for industries where small businesses are underrepresented in the Federal market relative to their share in the industry's total receipts, they offered suggestions for improvement. For example, one commenter expressed concern with reconciling SBA's approach to assigning a size standard based on Federal contracting factor and imposing a cap for the maximum size standard when the current size standard is at or near the maximum level. If SBA established a fixed increment in size standards levels with no maximum cap, it would provide the flexibility to increase size standards, when necessary, based on the Federal contracting factor, the commenter noted. Another commenter stressed the need to consider barriers to enter to Federal market as a factor in size standards analysis. A few commenters to the proposed rules for various NAICS sectors recommended giving the Federal contracting factor a greater weight to reflect administrative and compliance requirements and different skills required for Federal contracts, and size of contracts.

    One commenter recommended that SBA should assess the extent to which contracts are being set aside within specific industries. The commenter argued that a higher size standard may not necessarily lead to a higher small business share in Federal market in an industry if small business set-asides are not used in that particular industry. SBA's goal should be to spread all small business contracting opportunities across all industries, because raising size standards may not have any impact if Federal agencies are over-relying on set-aside contracts only in a handful of industries to meet their small business contracting goals.

    One commenter on construction size standards suggested that SBA should consider median size of Federal contracts when establishing size standards. The current method does not consider the Federal contracting trends in particular markets, the commenter noted. Either the bundling or contract consolidation should be curtailed or size standards increased, the commenter added.

    SBA's response: In the Revised Methodology, SBA is not applying a fixed number of size standards levels or “bands” and is letting the data determine an appropriate size standard for each NAICS industry, with appropriate rounding as explained elsewhere in this document and the Revised Methodology. However, SBA will continue its policy of capping the maximum size standard at a certain level. As noted earlier, allowing the data to determine a size standard without a cap would result in very high size standards for some industries, enabling very large businesses, possibly with billions in revenue or tens of thousands of employees, to qualify as small at the expense of genuine small businesses that need Federal help the most.

    Federal contracting is one of the factors SBA evaluates, along with industry data and other relevant considerations, when reviewing a size standard. The SBA's Methodology permits, if necessary, a higher weight to the Federal contracting factor. However, SBA is concerned that giving an excessive weight to Federal procurement may produce skewed results with unintended adverse impact on small businesses. For procurement sensitive industries, SBA might consider giving a greater weight to the Federal contracting factor, and possibly evaluating additional data related to Federal contracts, where appropriate. For the recently completed comprehensive size standards review, SBA considered the Federal procurement factor for those industries that received $100 million or more in total Federal contracts annually and showed a large disparity between small business shares in the Federal market and the industry's total sales.

    While SBA agrees that small business opportunities should spread across all industries, it does not believe that size standards are the only factor driving Federal agencies' small business set-aside decisions in the various industries. SBA's size standards establish eligibility for the small business set-aside opportunities that Federal agencies provide in a particular industry, but they do not dictate how the agencies make their set-aside decisions. The number of set-asides in each industry can be a function of many factors, including the nature, scope, types, volume, and costs of goods and services the agencies need to procure. It should also be noted that the current 23 percent small business contracting goal only applies to total procurements government-wide, not to individual industries.

    As mentioned earlier, there is a lack of data on administrative and compliance requirements and different skills required to participate in government contracting for SBA to be able to formalize these factors and assign a specific weight for the Federal contracting factor for specific industries. Implicitly, in the recently completed comprehensive size standards review, SBA gave more weight to the Federal contracting factor in some industries than in others by assigning higher size standards for those industries that had $100 million or more in annual Federal contracting and a lower small business share in the Federal market relative to their share in industry's total sales. In the Revised Methodology, SBA is reducing that threshold to $20 million, thereby resulting in more industries being evaluated for Federal market conditions.

    SBA does not agree that it does not consider Federal contracting trends when establishing size standards. SBA compares the small business share of Federal contracts with the small business share of total receipts for each industry. Specifically, if the small business share of contract dollars is substantially lower than the small business share of total receipts, SBA proposes a size standard that is higher than the current standard.

    Comments on Measures of Business Size

    One commenter to the SBA's Methodology recommended that SBA use the measure of firm size that best represents the magnitude of a business operation within an industry and that indicates the level of the business activity generated by firms. Accordingly, the commenter argued that subcontracting should support the number of employees as a measure of business size for size standards, not average annual receipts as SBA proposed. The commenter contended that when there is subcontracting, receipts leads to double counting and does not provide a good measure of the level of real economic activity. SBA's justification of using receipts when there is subcontracting conflicts with its justification to use employees when there exists variation in the degree of vertical integration, the commenter added.

    Several commenters to the proposed rule for NAICS Sector 54 (76 FR 14323 (March 16, 2011)) argued that number of employees is a better measure of business size, especially for architectural and engineering industries where “pass throughs” are high and receipts are much more sensitive to business cycles, costs of materials, and inflation in the economy. One commenter to the Sector 48-49 proposed rule (76 FR 27935 (May 13, 2011)) suggested that SBA take into account the costs of materials and labor and establish size standards in terms of gross profits, instead of total receipts. One commenter to the Sector 23 proposed rule (77 FR 42197 (July 18, 2012)) argued that small business size standards for construction industries should be based on number of full time equivalent (FTE) employees, rather than on average annual receipts. Receipts are a “misleading indicator” for size of construction companies due to sharp increases in material costs, the commenter noted. In addition, the commenter maintained that a construction company's gross receipts are inflated relative to the size standard as subcontracting and material costs that could account for as much as 85 percent of work being performed.

    One commenter to the Sector 31-33 proposed rule (79 FR 54146 (September 10, 2014)) suggested to include, in addition to employee counts, other criteria for establishing size standards for manufacturing industries, such as business tenure (5 years), subcontracting limitations, revenue limits ($30 million), and net worth limits ($5 million).

    SBA's Response

    First, Congress directs SBA to establish size standards for manufacturing concerns using number of employees and service concerns using average annual receipts. 15 U.S.C. 632(a)(2)(C). Further, for industries where subcontracting or “pass throughs” are common, an employee based size standard may encourage businesses to excessively outsource Federal work to other businesses in order to remain within the size standard. Under the receipts based standard, businesses are not allowed to deduct the value of any work outsourced.

    SBA also does not accept the suggestion to establish size standards in terms of gross profits. For a vast majority of industries, SBA uses either average annual receipts or number of employees as a measure of business size for size standards purposes. If a size standard were established in terms of gross profits, a company with hundreds of millions of revenues and thousands of employees can qualify as small under a profits-based size standard. It is not unusual for very lager companies to have little or negative profit over the course of business cycles. Such a firm would clearly be “dominant” in the industry and thus not a small business under the statutory requirement that a small business is one that is independently owned and operated and not dominant in its field of operation. Moreover, a firm's profits can be manipulated and thus would be an inconsistent and misleading measure of firm's size for size standards purposes.

    SBA disagrees that receipts based standards do not properly reflect the size of companies in the construction industry. Receipts, as a representative of the overall value of a company's entire portfolio of work completed in a given period of time, are a better measure of the size of a construction company to determine its eligibility for Federal assistance. Annual receipts measure the total value of a company's completed work. Under SBA's prime contractor performance requirements (see 13 CFR 125.6, limitations on subcontracting), a general construction company needs to perform as little as 15 percent of the value of work and a specialty trade contractor can perform as little as 25 percent of the work with their own resources. SBA is concerned that employee based size standards could encourage construction companies near the size standard to subcontract more work to others to bypass the limitations on subcontracting and remain technically a small business. Regardless of the amount of work a company subcontracts to others, it is still part of its annual revenue, because the company is responsible for the entire contract. In other words, under a receipts based size standard, the company cannot deduct subcontracting costs from the average annual receipts calculation. Under the employee based size standard, companies would not count their subcontractors' employees to calculate their total number of employees. A company that subcontracts a lot of its work to others will have a considerably fewer employees than one that performs most of its work in-house.

    Regarding the comment that receipts are not an appropriate measure of size for construction businesses because they are too sensitive to increases in material costs and fluctuations in market conditions, SBA adjusts all monetary based size standards at least every five years and more frequently if necessary. Similarly, to minimize the impacts of fluctuations in market conditions, SBA calculates the receipts for size standards purposes as the average annual receipts over the preceding three completed fiscal years.

    In 2004, SBA proposed to replace average annual receipts with number of employees as the measure of size standards for most industries, including construction (see 69 FR 13129 (March 19, 2004)). Commenters in the construction industry generally opposed SBA's proposal for a number of reasons, such as those SBA states above. In addition, because employee based size standards are based on the average number of employees per pay period for the preceding 12 calendar months, businesses would have to recalculate their size every month. Receipts, on the other hand, are calculated as the annual average over last three fiscal years and need to be updated only annually. This allows for fluctuations in market conditions. Employment data from the U.S. Census Bureau (Economic Census and County Business Patterns) and from other Federal statistical agencies (such as Bureaus of Economic Analysis and Labor Statistics) that SBA uses in its size standards analysis are based on total head counts of part-time, temporary and full-time employees, not based on FTEs. In other words, part-time employees are counted the same as full-time employees. In addition, using FTEs as a measure of size may increase reporting and record keeping requirements for small businesses to qualify for Federal programs. Thus, SBA is not adopting FTEs as a measure of size standards.

    Incorporation of net worth into SBA's table of size standards is not practicable. It is not a value that lends itself to comparing businesses in a particular industry. A company's net worth can be affected by a number of things, such as debt, repurchased corporate stock, etc. Furthermore, data on net worth is not available by industry. Other criteria proposed by the commenter would, SBA believes, be too nebulous, temporary, and subjective and therefore not useful when establishing size standards that usually must remain static and in place for a number of years. Establishing small business eligibility based on the combination of multiple criteria (such as revenue limit, net worth limit, and employee count), as suggested by the commenter, would create unnecessary complexity to and confusion with size standards.

    Comments on Data Sources and Issues

    SBA received a number of comments on various data sources it uses to evaluate industry and Federal procurement factors in developing or reviewing size standards, in particular the Economic Census and Federal Procurement Data System—Next Generation (FPDS-NG). Specifically, commenters contended that the Economic Census data that SBA uses in size standards analysis did not adequately reflect the conditions in their industries and recommended using alternative data sources. However, with a few exceptions, commenters did not provide alternative data or sources. When alternative data or their sources were provided, such data was either not complete or not representative of the overall industry. A few commenters pointed out that the Economic Census data were outdated and did not reflect current industry structure. Some commented that the Economic Census includes revenues from non-Federal work, international work, and work in non-primary industry in revenues for primary industry, thereby distorting average firm size and estimated size standards.

    One commenter stated that the FPDS-NG data does not provide a complete picture of small business participation in the Federal marketplace. Specifically, the commenter pointed out that there exist no data on work that large prime contractors subcontracted to small businesses, on work subcontracted to large firms by small prime contractors, and on the size of firms performing Federal work within small and large business categories. Citing these problems, the commenter stated that there is no way of knowing exactly how successful and competitive small businesses are in the Federal market under the current size standards. Additionally, the commenter contented that due to the lack information on the exact sizes of businesses receiving Federal contracts, it is difficult to estimate the impact of size standards changes on small business participation in Federal market.

    SBA's Response

    The Economic Census is the most comprehensive data source available to evaluate industry characteristics. The Economic Census data provides a complete and actual representation of an industry structure, because, by law, all firms are required to respond to the Economic Census. For these reasons, SBA will continue to use the Economic Census as the principal source of industry data for its size standards analyses and reviews. However, the Agency will give due considerations to alternative data provided by the industry participants, especially if such data is representative of the entire industry in question.

    The Economic Census tabulations that SBA receives from the U.S. Census Bureau are based on primary industry at the establishment level. Establishments doing some work in an industry may not be included in that industry if that is not their primary work. SBA is aware of this and other problems with the Economic Census data. For industries where such problems are significant, SBA also evaluates the System for Award Management (SAM) and FPDS-NG data to evaluate industry characteristics. While SBA is attentive to a substantial lag that exists between the times when Economic Census data is collected and when the data becomes available, the Economic Census is still the latest and most comprehensive data source available out there for evaluating all industries in a consistent manner.

    SBA does not agree that industry's revenues reported in the Economic Census are distorted for size standards analysis because they include non-federal, non-primary and overseas activities. First, revenues that U.S. companies generate in foreign countries are not, by design, included in the Economic Census. Second, including revenues from non-federal or non-primary activities in an industry's revenues is consistent with how SBA calculates revenues for size standards purposes. In other words, when calculating a company's total revenues for size standards purposes, revenues that the company has received from all sources (including Federal, state, and private work, and work related to non-primary industries) must be counted. See 13 CFR 121.104.

    SBA is aware that the FPDS-NG data does not contain information on subcontracting. The Electronic Subcontracting Reporting System (eSRS) collects data on subcontracting activity, but those data are not available by NAICS industry. However, despite these and other issues as discussed in the Revised Methodology, SBA believes that FPDS-NG is still the best data source available for assessing the small business participation in the Federal marketplace. Prior to 2013 when FPDS-NG data did not include exact size of the companies receiving contracts, SBA obtained size of contract recipients by merging the FPDS-NG data with employees and revenues information from SAM, formerly Central Contractor Registration (CCR). By using this analysis in conjunction with the share of small businesses in the Federal market relative to their share in overall industry total sales, SBA assessed the impacts of proposed size standards changes on small business participation in the Federal market. Now, SBA estimates the impacts of size standards changes by using small business goaling data, which includes the actual size of contract recipients.

    Comments on Small Business Size Definitions and Related Issues

    A number of commenters to the proposed rules for various NAICS sectors asserted that SBA's small business size standards did not represent “truly small” businesses. Many stated that SBA's size standards included up to 99 percent of all businesses as small. One commenter added that SBA's small business definitions are much larger than those used by other countries (such as Australia and European Union) and by the U.S Congress, for example, for the Affordable Health Care Act.

    SBA's Response

    SBA acknowledges that in some industries its size standards could include up to 97-99 percent of all firms as small. However, while that might appear to be a large segment of an industry in terms of the percentage of firms, for a majority of industries small businesses only account for less than 50 percent of total industry receipts and less than 25 percent of total Federal contract dollars. It is not uncommon for a small number of large firms to have a high percentage of industry receipts and employees and to obtain the bulk of Federal contacts. These are important considerations when establishing or reviewing small business size standards. Additionally, while SBA's size standards include more than 90 percent of firms for most industries, the Agency ensures that no business concern that qualifies as “small” is dominant in its industry.

    Common dictionary definitions of what is “small” are not relevant to why and how SBA establishes small business size standards. SBA's definition of a small business concern is more than a general meaning of the word “small” in a dictionary. In addition, numeric small business size standards are just one component of what constitutes a small business concern under SBA's regulations. SBA's size standards set thresholds on how large a business concern can be and still qualify as small for various Federal government programs. If a firm (together with its affiliates) meets both SBA's definition of a business concern (see 13 CFR 121.105) and its numeric size thresholds (§ 121.201), it is a small business concern; if it does not meet both SBA's definition of a business concern and its numeric size thresholds, it is considered “other than small.” The “dictionary” definitions of “small” usually speak in very general terms. However, under SBA's size standards, a company that qualifies as “small” in one industry may not qualify as “small” in another industry, because being small is relative to other business concerns in the same field of operation.

    What constitutes a small business in other countries does not apply and has no relevance to SBA's small business definitions and U.S. Government programs that use them. Likewise, SBA's small business size standards are not relevant to programs of other countries. Depending on their economic and political realities, other countries have their own programs and priorities that can be very different from those in the U.S. Accordingly, small business definitions other countries use for their government programs can be vastly different from those established by SBA for U.S. Government programs. From time to time, the U.S. Congress has used different thresholds, sometimes below the SBA's thresholds, to define small firms under certain laws or programs, but those thresholds apply only to those laws and programs and generally are of no relevance to SBA's size standards. SBA establishes size standards, in accordance with the Small Business Act, for purposes of establishing eligibility for Federal small business procurement and financial assistance programs. The primary statutory definition of a small business is that the firm is not dominant in its field of operation. Accordingly, rather than representing the smallest size within an industry, SBA's size standards generally designate the largest size that a business concern can be relative to other businesses in the industry and still qualify as small for Federal government programs that provide benefits to small businesses.

    Comments on Mid-Sized Business Concerns

    Several comments to the proposed rule for NAICS Sector 54 recommended a number of alternatives to enable currently large but formerly small firms (which they called as “mid-sized” businesses) to obtain Federal contracts. Those alternatives and SBA's responses are discussed below.

    Define as small businesses all those which are not dominant in their field of operation, in accordance with the section 3(a)(1) of the Small Business Act. For example, consider the average size of the largest or dominant businesses in an industry and determine the size standard as a percentage of that average.

    SBA's response: SBA does not adopt this recommendation. As described in its Methodology and all proposed rules, in establishing or modifying size standards, SBA considers various industry factors (e.g., average size, industry concentration, and distribution of firms by size) to identify the small business segment of an industry. The Small Business Act (Act) provides that a business concern defined as small cannot be dominant in its field of operation. SBA has implemented this provision of the Act by ensuring that a size standard based on its industry analysis does not include a business concern that is dominant in its industry. For this, SBA generally evaluates the market share of a firm that qualifies as small under a proposed or revised size standard and distribution of firms by size. If the results show the largest or potentially dominant firms qualifying as small under the proposed or revised size standard, SBA lowers the size standard. The legislative history of the Act does not imply that a firm that is not dominant in its field can automatically be defined as small. Size standards based on the average size of the largest or dominant businesses in an industry could result in a size standard that will enable extremely large businesses to qualify as small, thereby hurting truly small businesses that need the Federal assistance the most.

    Develop multi-tiered employee size standards based on the size of a Federal contract, such as a size standard of 50 employees for contracts valued at less than $5 million, of 51-150 employees for contracts valued at $5 million to $50 million, . . . , , and of 1,001-2,000 employees for contracts valued at $500 million or more.

    SBA's response: While this approach may offer Federal contracting opportunities for various small and mid-sized businesses, SBA does not adopt this recommendation for several reasons. First, SBA believes that such tiered size standards within each industry would add significant complexity to size standards, which many believe are already too complex. Second, in order for the tiered size standards approach to work, Congress would need to establish new small business procurement goals for each tier to ensure that small businesses at different tiers have a fair access to Federal contracts. Third, this would warrant much more burdensome system and reporting and requirements (e.g., SAM and FPDS-NG) than those that currently exist and the small business Federal procurement programs would become significantly more complex to administer. Fourth, the Small Business Act authorizes SBA to establish one definition of what is a small business concern, not tiered definitions of what is “small,” “medium,” and so forth. Fifth, past programs that applied the tiered small business approaches, such as the Very Small Business Program and the Emerging Small Business category under the CompDemo Program were not successful and were eventually repealed by Congress.

    Establish separate size standards for Federal contracting. Commenters stated that Federal contracting imposes restrictions on business practices and operations not included in the commercial market. They argued that given the differences between commercial and government work, a separate set of size standards are warranted for Federal procurement.

    SBA's response: SBA does not adopt this recommendation. Federal procurement is already one of the primary factors SBA considers when developing or reviewing size standards. However, giving an excessive weight to Federal procurement may produce size standards that are likely to be biased in favor of more successful Federal contractors, which in turn would reduce contracting opportunities for smaller and emerging businesses. For procurement sensitive industries, however, SBA may consider giving a greater weight to the Federal contracting factor and possibly evaluating additional data related to Federal contracts. Additionally, in a number of industries, SBA has established separate size standards for Federal contracts of very specific types of goods and services, which are usually known as “exceptions” in the SBA's table of size standards.

    SBA is also concerned that if separate size standards for Federal procurement are appreciably higher than the current size standards, that may cause significant disadvantage to very small businesses when they compete for Federal small business set-aside contracts.

    Calculate average annual receipts based on five years. The commenter also recommended calculating average annual receipts over the preceding five years, instead of three. The commenter alleged that this would allow small businesses to plan and increase capacity before entering full and open competition and provide longer transition time from small business status to other than small business status. In addition, small businesses with large temporary increases in revenues for one or two years would not lose their small business status.

    SBA's response: SBA does not adopt this comment. SBA believes that calculating average annual receipts over three years ameliorates fluctuations in receipts due to variations in economic conditions. SBA maintains that three years should reasonably balance the problems of fluctuating receipts with the overall capabilities of firms that are about to exceed the size standard. Extending the averaging period to five years would allow a business to greatly exceed the size standard for some years and still be eligible for Federal assistance, perhaps at the expense of other smaller businesses. Such a change is more likely to benefit successful small business graduates by allowing them to prolong their small business status, thereby reducing opportunities for currently defined small businesses.

    Comments on Tiered Size Standards

    Several comments to the Sector 54 proposed rule recommended that SBA establish some form of tiered size standards for Federal contracting, including a “micro-business” category to help truly small businesses that are way below the current size standards. Similarly, one commenter on the Sector 48-49 proposed rule stated that more than two-thirds of companies registered in SAM have fewer than 20 employees and argued that those are the companies that need Federal support the most. The commenter suggested that, for goods producing industries, businesses with fewer than 20 employees should be classified as “small business” and contracts valued at $150,000 or less should be set-aside only for those businesses. Similarly, according to the commenter, businesses with 20-40 employees should be classified as “medium sized small business” and contracts between $150,000 and $500,000 should be reserved for those businesses. For services industries, less than $100,000 in sales should be labeled as “small business,” $300,000 as “medium sized small business” and $500,000 or more as “large small business,” the commenter suggested. A commenter to the proposed rule for Sector 44-45 also suggested that SBA designate a separate sub-group of truly small businesses and give them special preference when competing for smaller government contracts.

    SBA's Response

    SBA does not adopt the commenters' suggestions to establish “micro-business” or “tiered” size standards for several reasons. First, SBA is concerned that very small or “micro” size standards, such as those suggested by the commenters, may not adequately capture the small business segment in an industry that small business programs are intended to help. The size standards should be such that small businesses are able to grow and develop to an economically viable size while remaining eligible for Federal assistance. If size standards were set too low, small businesses will quickly outgrow the size standards and be forced to compete with significantly larger businesses for Federal contracts under full and open competition. However, as stated elsewhere in this document, SBA is also equally concerned about setting size standards too high, as doing so could put smaller businesses at a disadvantage in competing for Federal opportunities. Second, such tiered size standards would add significant complexity to size standards, which many believe are already too complex. Third and most importantly, the Small Business Act requires SBA to establish one definition of what is a small business concern, not what is “very small,” “small,” “medium-sized,” and so forth. Also, as stated elsewhere, for tiered size standards to work and benefit small businesses, Congress needs to enact small business contracting goals for various tiers to ensure that small businesses at each tier have a fair share of Federal contracts.

    Comments on Fixed Number of Size Standards

    Commenters generally supported SBA's Methodology and its proposal to use a fixed number of size levels to simplify size standards. There were a few who opposed fixed size levels and believed, because of wide gaps between the two successive size levels, calculated size standards could be larger or smaller than they should otherwise be.

    One commenter contended that the Methodology does not provide a convincing economic basis for restricting size standards to a small number of fixed levels or “bands”. Similarly, it does not provide a reasoned, evidence-driven basis for instituting a 1,000-emplpyee cap that is substantially below the 1,500-employee size standard currently used for 17 industries, the commenter added. The commenter argued that the imposition of the 1,000-employee cap for employee based size standards appears arbitrary. The Methodology would be more transparent and better reflect the economic characteristics of the industry if SBA let the data and analytical results determine the maximum size standard for an industry, the commenter suggested. The maximum size standard should be a conclusion of the SBA's review and analysis of the data instead of being imposed as a constraint in the analysis and there is no reason to set an artificial cap on size standards, the commenter noted. Such a cap can only serve to restrict the SBA from providing support to small businesses that it intended to help.

    SBA's Response

    The fixed size standard levels were developed to simplify size standards. There were 31 different levels of receipts based size standards at the start of the comprehensive size standards review, which SBA believed were both unnecessary and difficult to justify analytically with the available industry data. Thus, SBA adopted the fixed size standards approach and sought comments on whether more or fewer size standard levels are more appropriate.

    In response to these comments and the amendment to the Small Business Act (section 3(a)(8)) under the National Defense Authorization Act of Fiscal Year 2013 (NDAA 2013) (Pub. L. 112-239, Section 1661, Jan. 2, 2013) requiring SBA to not limit the number of size standards, SBA has relaxed the limitation on the number of small business size standards in the Revised Methodology. Specifically, SBA is proposing to assign a separate size standard to each NAICS industry, with a calculated receipts based size standard rounded to the nearest $500,000 and a calculated employee based size standard rounded to the nearest 50 employees for Manufacturing and industries in other sectors (except Wholesale and Retail Trade) and to the nearest 25 employees for Wholesale and Retail Trade. However, SBA has established the minimum and maximum size standard levels as its policy decisions such that businesses that qualify as small have adequate capabilities and resources to be able to perform government contracts and do not outcompete smaller businesses in accessing Federal assistance. Letting the data and analytical formulae alone determine the maximum size standard, as the commenter recommended, would result in a size standard for some industries that would enable quite large businesses, possibly with billions of revenues and thousands of employees, to qualify as small at the expense of smaller businesses that need Federal assistance the most.

    To be consistent with SBA's policy of not lowering any size standards in the recent comprehensive size standards, SBA retained the 500-employee minimum and 1,500-employee maximum size standards for all industries in the Manufacturing Sector and for most industries with employee based size standards not in Sectors 31-33, 42, and 44-45, although in the Methodology SBA had proposed setting the minimum size standard for those industries at 250 employees and the maximum size standard at 1,000 employees. Further, lowering a manufacturing size standard below 500 employees would conflict with the 500-employee size standard for non-manufacturers under the SBA's nonmanufacturer's rule.

    Comments on Anchor Size Standards

    Some commenters to the Sector 54 proposed rule questioned the rationale for using $7 million as an anchor for receipts based standards. Similarly, a few commenters to the proposed rules for employee based size standards questioned 500 employees as an anchor for employees based size standards. One commenter to the proposed rule on employee based size standards for industries not part of Sectors 31-33, 42 and 44-45 argued that SBA's use of “anchor size standard” approach as a basis for evaluating characteristics of individual industries violated the statutory requirement on using common size standards.

    SBA's Response

    SBA provided a detailed justification for using the “anchor” size standard approach in its Methodology. In fact, SBA has been using the “anchor” approach since the 1980s when reviewing and modifying size standards without much concern from the public. The use of the “anchor” served an important function by ensuring that the characteristics of all industries are consistently evaluated relative to the same baseline level. Additionally, when the Methodology was prepared, the $7 million anchor was the size standard for a majority of the industries that have receipts based size standards and 500-employee anchor applied to most industries that have employee based size standards. However, in response to the above comments and its own evaluation of the Methodology, in the Revised Methodology SBA is replacing the “anchor” approach with a “percentile” approach to evaluating characteristics individual industries, as explained elsewhere in this document.

    Comments on Levels of Size Standards

    A few questioned the SBA's Methodology on the ground that calculated size standards are generally much higher than average firm size for the industry. Some expressed concerns regarding the use of simple average firm size, instead of median firm size, and averaging of size standards over different factors. One commenter stated that the SBA's Methodology of averaging size standards supported by different factors to calculate an overall size standard may result in loss of information and contended that the averaging procedure hurts companies in the $25.5 million to $35.5 million annual revenue range. The commenter believed that perhaps assigning different weights to different factors would provide better results, but did not offer any specific suggestions on those weights.

    SBA's Response

    The purpose of evaluating various industry characteristics is to describe quantitatively the structure of an industry. Since no single characteristic or factor can adequately describe industry structure, SBA evaluates several factors (such as average firm size, industry concentration, and distribution of market shares by size) to best obtain a full representation of industry structure. In addition, in most cases, equating the size standard to the average or median firm size can result in an unacceptably low size standard that may not adequately capture the small business segment of the industry that small business programs are intended to assist. Thus, for most industries, size standards are generally higher than the simple average or median firm size so that small businesses have room to grow and develop to an economically viable size while still remaining eligible for Federal assistance. If size standards were too low, small businesses would quickly outgrow the size standards and be forced to compete with significantly larger businesses for Federal contracts on a full and open basis. SBA is also equally concerned about setting size standards too high, as doing so could put smaller businesses at a disadvantage in competing for Federal opportunities.

    SBA disagrees that calculating an industry's overall size standard as the average of size standards supported by each factor results in loss of information. In fact, this procedure preserves information provided by different factors, as opposed to basing the size standard only on one or two factors. Moreover, if the size standard was based on the largest value supported by any of the factors, it would put smaller companies at a competitive disadvantage. If warranted, SBA's Methodology allows assigning different weights to different factors.

    Other Comments

    One commenter agreed with the Agency's position that lowering size standards under current economic conditions is not in the best interests of small business, but felt that increasing size standards by 180-300 percent at one time was also not in the best interests of small business. He stated that size standards should be raised between 50-75 percent and recommended a complete review of SBA's loan data, small business participation in Federal contracting, and other relevant factors within 2-3 years to determine if another increase is appropriate.

    One commenter to the proposed rule on Sector 44-45 (74 FR 53924 (October 21, 2009)) suggested that there should be only one revenue based and only one employee based size standard, regardless of NAICS industry. Another commenter on the proposed rule on Sector 21 (77 FR 72766 (December 6, 2012)) suggested that all size standards should be capped at $7 million in average annual receipts.

    Two commenters on the Sector 31-33 proposed rule supported SBA's proposed five employee based size standard levels for Manufacturing and successive differences of 250 employees rather than 500 employees. However, one suggested that SBA should establish an additional level of 250 employees as the minimum size standard and set the maximum employee based standard at 1,000 employees. A lower size standard would protect emerging manufacturers that are not able to compete with established larger businesses, the commenter maintained. Both commenters argued that the Agency should lower size standards when the analysis supports lowering them. One argued that not lowering size standards would encourage manufacturers not to upgrade their facilities with advanced manufacturing techniques and allow larger manufacturers to compete with true small manufacturers. While one commenter suggested that SBA should not adjust employee based size standards for labor productivity growth and focus on protecting emerging businesses instead, the other pointed out that the lack of data on labor productivity would make adjusting size standards based on labor productivity difficult. One commenter supported weighing all factors equally, while the other suggested weighing some factors more than others for certain industries.

    Some commenters believed that SBA's Methodology was too complicated and difficult to understand.

    SBA's Response

    SBA agrees that the proposed increases to size standards were quite significant for some industries and the Agency had sought comments if the increases to size standards should be limited to certain amounts. Comments generally supported the Methodology, industry and program data it evaluated and its proposed increases to size standards. SBA believes that the changes in industry structure since the last comprehensive review of size standards nearly 30 years ago may have resulted in large increases to size standards for some industries. The Small Business Jobs Act of 2010 requires SBA to review all size standards at least once every five years and make adjustments to reflect market conditions. Prior to the next review, SBA will assess the impact of size standards revisions adopted in the current review.

    Using only one receipts based standard and only one employee standard would conflict with the statutory requirement that “the [SBA] Administrator shall ensure that the size standard varies from industry to industry to the extent necessary to reflect the differing characteristics of the various industries and consider other factors deemed to be relevant by the Administrator.” (15 U.S.C. 632(a)(3).) The relevant data show significant differences among industries and SBA believes that varying the size standard by industry not only complies with the Act, but it also serves the best interests of small businesses in that sector.

    Some of the issues the commenters raised regarding the minimum and maximum employee based size standards are addressed in the Revised Methodology. For example, SBA will continue to cap the maximum employee size standards for Manufacturing and industries in other sectors (except Wholesale and Retail Trade) at 1,500 employees, but will set the minimum employee size standard at 250 employees instead of 500. Additionally, the difference between the two successive employee size standards for those industries will be reduced to 50 employees. Employee size standards for Wholesale and Retail Trade will vary from 50 employees to 250 employees with an interval of 25 employees. With respect to SBA's policy of not lowering size standards, SBA provided a detailed explanation in each rulemaking with respect to why lowering size standards was not in the best interest of small businesses during the times of weak economic conditions that prevailed when SBA was reviewing size standards Specifically, SBA was concerned that lowering size standards (including the minimum and maximum levels) would have caused numerous small businesses to lose their eligibility for Federal programs when they needed Federal assistance the most and run counter to various legislative and Administration's measures that were implemented to help small businesses and the economy.

    SBA's Methodology provides a vast array of information on its size standards analysis from a general description of the analytical approach to rigorous mathematical expressions of the calculation of industry factors. While some portions of the document are of somewhat technical nature, the public should be able to understand the general description of the various factors and data sources SBA uses when reviewing size standards.

    Changes in the Revised Methodology

    The Revised Methodology, available for review and comment on the SBA's website at https://www.sba.gov/size-standards-methodology as well as at https://www.regulations.gov, describes in details how SBA establishes, evaluates and adjusts its small business size standards pursuant to the Small Business Act (Act) and related legislative guidelines. Specifically, the document provides a brief review of the legal authority and early legislative and regulatory history of small business size standards, followed by a detailed description of the size standards analysis.

    Section 3(a) of the Small Business Act; 15 U.S.C. 632(a) (Pub. L. 85-536, 67 Stat. 232, as amended), provides the SBA's Administrator (Administrator) with authority to establish small business size standards for Federal government programs. The Administrator has discretion to determine precisely how the Administrator should establish small business size standards. The Act and its legislative history highlight three important considerations for establishing size standards. First, size standards should vary from industry to industry according to differences among industries. 15 U.S.C. 632(a)(3). Second, a firm that qualifies as small shall not be dominant in its field of operation. 15 U.S.C. 632(a)(1). Third, pursuant to 15 U.S.C. 631(a), the policies of the Agency should assist small businesses as a means of encouraging and strengthening their competitiveness in the economy. These three considerations continue to form the basis for the SBA's methodology for establishing, reviewing, or revising small business size standards.

    Industry Analysis

    SBA examines the structural characteristics of an industry as a basis to assess industry differences and the overall degree of competitiveness of an industry and of firms within the industry. As described more fully in the Revised Methodology document, SBA generally evaluates industry structure by analyzing four primary factors—average firm size (both simple and weighted average), degree of competition within an industry (4-firm concentration ratio), start-up costs and entry barriers (average assets as a proxy), and distribution of firms by size (Gini coefficient). This approach to assessing industry characteristics that SBA has applied historically remains very much intact in the Revised Methodology. As the fifth primary factor, SBA assesses the ability of small businesses to compete for Federal contracting opportunities under the current size standards. For this, SBA examines the small business share of total Federal contract dollars relative to the small business share of total industry's receipts for each industry. SBA also considers other secondary factors as they relate to specific industries and interests of small businesses, including technological change, competition among industries, industry growth trends, and impacts of the size standards on SBA programs.

    While the factors SBA uses to examine industry structure remain intact, its approach to assessing the differences among industries and translating the results to specific size standards has changed in the Revised Methodology. Specifically, in response to the public comments against the “anchor” size standards approach applied in the latest review of size standards (discussed above), recent amendment to the Act limiting the use of common size standards (see section 3(a)(7)) of the Act) under the National Defense Authorization Act of Fiscal Year 2013 (NDAA 2013) (Public Law 112-239, Section 1661, Jan. 2, 2013), and SBA's own review of the Methodology, in the Revised Methodology, SBA replaces the “anchor” approach with a “percentile” approach as an analytical framework for assessing industry differences and deriving a size standard supported by each factor for each industry.

    Under the “anchor” approach, SBA generally compared the characteristics of each industry with the average characteristics of a group of industries associated with the “anchor” size standard. For the recent review of size standards, the $7 million was the “anchor” for receipts based size standards and 500 employees was the “anchor” for employee based size standards (except for Wholesale Trade and Retail Trade). If the characteristics of a specific industry under review were similar to the average characteristics of industries in the anchor group, SBA generally adopted the anchor as the appropriate size standard for that industry. If the specific industry's characteristics were significantly higher or lower than those for the anchor group, SBA assigned a size standard that was higher or lower than the anchor. To determine a size standard above or below the anchor size standard, SBA evaluated the characteristics of a second comparison group. For industries with receipts based size standards, the second comparison group consisted of industries with size standards between $23 million and $35.5 million, with the weighted average size standard for the group equaling $29 million. For manufacturing industries and other industries with employee based size standards (except for Wholesale Trade and Retail Trade), the second comparison group included industries with a size standard of 1,000 employees or 1,500 employees, with the weighted average size standard of 1,323 employees. Using the anchor size standard and average size standard for the second comparison group, SBA computed a size standard for an industry's characteristic (factor) based on the industry's position for that factor relative to the average values of the same factor for industries in the anchor and second comparison groups.

    In the past, including the recent review of size standards, the anchor size standards applied to a large number of industries, making them a good reference point for evaluating size standards for individual industries. For example, at the start of the recent review of size standards, the $7 million (now $7.5 million due to the adjustment for inflation in 2014) anchor standard was the size standard for more than 70 percent of industries that had receipts based size standards. Similarly, a similar proportion of industries with employee based size standards had the 500-employee anchor standard. However, when the characteristics of those industries were evaluated individually, for a large majority of them the results yielded a size standard different from the applicable anchor. Consequently, now just 24 percent industries with receipts based size standards and 22 percent of those with employee based size standards have the anchor size standards. Additionally, section 3(a)(7)) of the Act limits the SBA's ability to create common size standards by grouping industries below the 4-digit NAICS level. The “anchor” approach would entail grouping industries from different NAICS sectors, thereby making it inconsistent with the statute.

    Under the “percentile” approach, in the Revised Methodology, SBA will rank each industry within a group of industries with the same measure of size standards using each of the four industry factors. As stated earlier, these four industry factors are average firm size, average assets size as proxy for startup costs and entry barriers, industry competition (4-firm concentration ratio), and distribution of firms by size (Gini coefficient). As detailed in the Revised Methodology, the size standard for an industry for a specific factor will be derived based on where the factor of that industry falls relative to other industries sharing the same measure of size standards. If an industry ranks high for a specific factor relative to most other industries, all else remaining the same, a size standard assigned to that industry for that factor will be higher than those for most industries. Conversely, if an industry ranks low for a specific factor relative to most industries in the group, a lower size standard will be assigned to that industry. Specifically, for each industry factor, an industry is ranked and compared with the 20th percentile and 80th percentile values of that factor among the industries sharing the same measure of size standards (i.e., receipts or employees). Combining that result with the 20th percentile and 80th percentile values of size standards among the industries with the same measure of size standards, SBA computes a size standard supported by each industry factor for each industry. The Revised Methodology provides detailed illustration of the statistical analyses involved in this approach.

    Number of Size Standards

    To simplify size standards, in its Methodology used in the recent review, SBA applied a limited number of fixed size standards: eight revenue based size standards and eight employee based size standards. In response to comments against the fixed size standards approach (as discussed above) and section 3(a)(8) of the Act requiring SBA to not limit the number of size standards, in the Revised Methodology, SBA has relaxed the limitation on the number of small business size standards. Specifically, SBA will calculate a separate size standard for each NAICS industry, with a calculated receipts-based size standard rounded to the nearest $500,000 and a calculated employee-based size standard rounded to the nearest 50 employees for Manufacturing and industries in other sectors (except Wholesale Trade and Retail Trade) and to the nearest 25 employees for Wholesale Trade and Retail Trade.

    However, as a policy decision, SBA will continue to maintain the minimum and maximum size standard levels. Accordingly, SBA will not generally propose or adopt a size standard that is either below the minimum or above the maximum level, even though the calculations might yield values below the minimum or above the maximum level. The minimum size standard generally reflects the size a small business should be to have adequate capabilities and resources to be able to compete for and perform Federal contracts. On the other hand, the maximum size standard represents the level above which businesses, if qualified as small, would cause significant competitive disadvantage to smaller businesses when accessing Federal assistance. SBA's proposed minimum and maximum size standards are shown in Table 1, “Minimum and Maximum Receipts and Employee Based Size Standards,” below.

    Table 1—Minimum and Maximum Receipts and Employee Based Size Standards Type of size standards Minimum Maximum Receipts-based size standards (excluding agricultural industries in Subsectors 111 and 112) $5 million $40 million. Receipts-based size standards for agricultural industries in Subsectors 111 and 112 $1 million $5 million. Employee-based standards for Manufacturing and other industries (except Wholesale and Retail Trade) 250 employees 1,500 employees. Employee-based size standards in Wholesale and Retail Trade 50 employees 250 employees.

    With respect to receipts based size standards, SBA is proposing $5 million and $40 million, respectively, as the minimum and maximum size standard levels (except for most agricultural industries in Subsectors 111 and 112). These levels reflect the current minimum receipts-based size standard of $5.5 million and the current maximum of $38.5 million, rounded for simplicity. Section 1831 of NDAA 2017 amended the Act directing SBA to establish and review size standards for agricultural enterprises in the same manner it establishes and reviews size standards for all other industries. However, the evaluation of the industry data from the 2012 Census of Agriculture seems to suggest that $5 million minimum and $40 million maximum size standards would be too high for agricultural industries in Subsectors 111 and 112. Accordingly, SBA proposes $1 million as the minimum size standard for industries in Subsector 111 (Crop Production) and Subsector 112 (Animal Production and Aquaculture). A vast majority of agricultural industries in those subsectors currently have a $750,000 receipts-based size standard, which was established by Congress in 2000 (Pub. L. 106-554, 114 Stat. 2763, Dec. 21, 2000). Considering inflation since then, that is equivalent to a little over $1 million today. Based on the evaluation of the industry data, SBA is proposing $5 million as the maximum size standard for agricultural industries in those two subsectors. Regarding employee based size standards, SBA's proposed minimum and maximum levels for manufacturing and other industries (excluding Wholesale and Retail Trade) reflect the current minimum and maximum size standards among those industries. For employee based size standards for wholesale and retail trade industries, the proposed minimum and maximum values are the same as what SBA proposed in its 2009 Methodology.

    Evaluation of Federal Contracting Factor

    For some relevant industries, SBA considers Federal contracting as one of the primary factors when establishing, reviewing, or revising size standards. To choose which industries in which to consider the Federal contracting factor, under the previous methodology, SBA evaluated Federal contracting factor for industries with $100 million or more in Federal contract dollars annually for the latest three fiscal years. However, the latest FPDS-NG data suggests that the $100 million threshold used in the previous methodology is too high, rendering the Federal contracting factor irrelevant for about 73 percent of industries (excluding wholesale trade and retail trade industries that are not used for Federal contracting purposes), including those for which the Federal contracting factor is significant (i.e., the small business share of industry's total receipts exceeding the small business share of industry's total contract dollars by 10 percentage points or more). Thus, SBA determined that the threshold should be lowered. In this revised methodology, SBA generally evaluates the Federal contracting factor for industries with $20 million or more in Federal contract dollars annually for the latest three fiscal years. Under the $20 million threshold, excluding wholesale trade and retail trade industries, nearly 50 percent of all industries would be evaluated for the Federal contracting factor as compared to about 27 percent under the $100 million level.

    For each industry averaging $20 million or more in Federal contract dollars annually, SBA compares the small business share of total Federal contract dollars to the share of total industrywide receipts attributed to small businesses. In general, if the share of Federal contract dollars awarded to small businesses in an industry is significantly smaller than the small business share of total industry's receipts, keeping everything else the same, a justification would exist for considering a size standard higher than the current size standard. In cases where small business share of the Federal market is already appreciably high relative to the small business share of the overall market, it would generally support the current size standards.

    In the Methodology used in the recent review of size standards, SBA evaluated the Federal contracting factor only for those industries that averaged $100 million or more in Federal contracts annually. The latest FPDS-NG data suggests that the $100 million threshold is too high, rendering the Federal contracting factor irrelevant for about 73 percent of industries. Accordingly, in the Revised Methodology, SBA evaluates the Federal contracting factor for industries (except those in Wholesale Trade and Retail Trade) averaging $20 million or more in Federal contract dollars annually. Because NAICS codes in Wholesale Trade and Retail Trade do not apply to Federal procurement, SBA does not consider the Federal contracting factor for evaluating size standards industries in those sectors.

    Evaluation of Industry Competition

    For the reasons provided in the Revised Methodology, SBA continues to use the 4-firm concentration ratio as a measure of industry competition. In the past, SBA did not consider the 4-firm concentration ratio as an important factor in size standards analysis when its value was below 40 percent. If an industry's 4-firm concentration ratio was 40 percent or higher, SBA used the average size of the four largest firms as a primary factor in determining a size standard for that industry. In response to the comment as well as based on its own evaluation of industry factors, in the Revised Methodology, SBA is proposing to apply all values of the 4-firm concentration ratios directly in the analysis, as opposed to using the 40 percent rule. Based on the 2012 Economic Census data, the 40 percent rule applies only to about one-third of industries for which 4-firm ratios are available. For the same reason, SBA is also dropping the average firm size of the four largest firms. Moreover, the four-firm average size is found to be highly correlated with the weighted average firm size, which is used as a measure of average firm size.

    Summary of and Reasons for Changes

    Table 2, “Summary of and Reasons for Changes,” below, summarizes what has changed from the current methodology to the revised one and impetus for such changes, specifically whether the changes reflect the statutory requirements, public comments on the current methodology, or analytical improvements/refinements based on SBA's own review of the methodology.

    Table 2—Summary of and Reasons for Changes Process/factor Current Revised Reason Industry analysis “Anchor” approach. Average characteristics of industries with so called “anchor” size standards formed the basis for evaluating individual industries “Percentile” approach. The 20th percentile and 80th percentile values for industry characteristics form the basis for evaluating individual industries • Section 3(a)(7)) of the Small Business Act limits use of common size standards only to the 4-digit NAICS level.
  • • The percentage of industries with “anchor” size standards decreased from more than 70 percent at the start of the recent size standards review to less than 25 percent today.
  • • Some public comments objected to the “anchor” approach as being outdated and not reflective of current industry structure.
  • Number of size standards The calculated size standards were rounded to one of the predetermined fixed size standards levels. There were eight fixed levels each for receipts-based and employee based standards Each NAICS industry is assigned a specific size standard, with a calculated receipts-based standard rounded to the nearest $500,000 and a calculated employee-based standard rounded to 50 employees (to 25 employees for Wholesale and Retail Trade) • Section 3(a)(8) of the Small Business Act mandates SBA to not limit the number of size standards and to assign an appropriate size standard for each NAICS industry.
  • • Some public comments also raised concerns with the fixed size standards approach.
  • Federal contracting factor Evaluated the small business share of Federal contracts vis-à-vis the small business share of total receipts for each industry with $100 million or more in Federal contracts annually Each industry with $20 million or more in Federal contracts annually is evaluated for the Federal contracting factor • The $100 million threshold excludes about 73 percent of industries from the consideration of the Federal contracting factor. Lowering that threshold to $20 million increases the percentage of industries that will be evaluated for the Federal contracting factor to almost 50 percent.
  • • Evaluating more industries for the Federal contracting factor also improves the analysis of the industry's competitive environment pursuant to section 3(a)(6) of the Small Business Act.
  • Industry competition Was considered as significant factor if the 4-firm concentration ratio was 40 percent or more and 4-firm average formed the basis for the size standard calculation for that factor Considers all values of the 4-firm concentration ratio and calculates the size standard based directly on the 4-firm ratio. Industries with a higher (lower) 4-firm concentration ratio will be assigned a higher (lower) standard • Some commenters opposed using the 40 percent threshold and recommended using all values of the 4-firm concentration ratio.
  • • The 4-firm average is highly correlated with the weighted average.
  • Impacts of Changes in the Methodology

    To determine how the above changes in the methodology would affect size standards across various industries and sectors, SBA estimated new size standards using both the “anchor” approach and the “percentile” approach for each industry (except those in Sectors 42 and 44-45, and Subsectors 111 and 112). For receipts-based size standards, the anchor group consisted of industries with the $7.5 million size standard, and the higher size standard group included industries with the size standard of $25 million or higher, with the weighted average size standard of $33.2 million for the group. Similarly, for employee-based size standards the anchor group comprised industries with the 500-employee size standard, and higher size standard group comprised industries with size standard of 1,000 employees or above, with the weighted average size standard of 1,182 employees. These and 20th percentile and 80th percentile values for receipts-based and employee-based size standards are shown, below, in Table 3, “Reference Size Standards under Anchor and Percentile Approaches.”

    Table 3—Reference Size Standards Under Anchor and Percentile Approaches Anchor approach Anchor level Higher level Percentile approach 20th percentile 80th percentile Receipts standard ($ million) $7.5 $33.2 $7.5 $32.5 Employee standard (no. of employees) 500 1,182 500 1,250

    Under the anchor approach, we derived the average value of each industry factor for industries in the anchor groups as well as those in the higher size standard groups. In the percentile approach, the 20th percentile and 80th percentile values were computed for each industry factor. These results are presented, below, in Table 4, “Industry Factors under Anchor and Percentile Approaches.” As shown in the table, generally, the anchor values are comparable with the 20th percentile values and higher level values are comparable with the 80th percentile values.

    Table 4—Industry Factors Under Anchor and Percentile Approaches Anchor approach Anchor level Higher level Percentile approach 20th percentile 80th percentile Industry factors for receipts-based size standards, excluding Subsectors 111 and 112 Simple average receipts size ($ million) 0.78 7.09 0.83 7.65 Weighted average receipts size ($ million) 18.07 724.84 19.42 834.75 Average assets size ($ million) 0.35 4.73 0.34 5.17 4-firm concentration ratio (%) 10.4 34.5 7.9 42.4 Gini coefficient 0.679 0.830 0.686 0.835 Industry factors for employee-based size standards, excluding Sectors 42 and 44-45 Simple average firm size (no. of employees) 33.4 98.2 29.6 122.7 Weighted average firm size (no. of employees) 232.2 1,362.6 251.3 1,581.6 Average assets size ($ million) 4.82 23.29 3.92 40.62 4-firm concentration ratio (%) 24.8 50.3 24.8 61.7 Gini coefficient 0.770 0.842 0.760 0.853

    Under the anchor approach, using the anchor size standard and average size standard for the higher size standard group, SBA computed a size standard for an industry's characteristic (factor) based on that industry's position for that factor relative to the average values of the same factor for industries in the anchor and higher size standard groups. Similarly, for the percentile approach, combining the factor value for an industry with the 20th percentile and 80th percentile values of size standards and industry factors among the industries with the same measure of size standards, SBA computed a size standard supported by each industry factor for each industry. Under the both approaches, a calculated receipts-based size standard was rounded to the nearest $500,000 and a calculated employee-based size standard was rounded to the nearest 50 employees.

    With respect to the Federal contracting factor, for each industry averaging $20 million or more in Federal contracts annually, SBA considered under both approaches the difference between the small business share of total industry receipts and that of Federal contract dollars under the current size standards. Specifically, under the Revised Methodology, the existing size standards would increase by certain percentages when the small business share of total industry receipts exceeds the small business share of total Federal contract dollars by 10 percentage points or more. Those percentage increases, detailed in the Revised Methodology, to existing size standards generally reflect receipts and employee levels needed to bring the small business share of Federal contracts at par with the small business share of industry receipts.

    The results were generally similar between the two approaches in terms of changes to the existing size standards, with size standards increasing for some industries and decreasing for others under both approaches. Most impacted sector was NAICS Sector 23 (Construction), with a majority of industries experiencing decreases to the current size standard affecting about 1 percent of all firms in that sector under both approaches. Other negatively impacted sectors under both approaches were Sector 31-33 (Manufacturing), Sector 48-49 (Transportation and Warehousing), and Sector 51 (Information), affecting, respectively, 0.1 percent, 0.6 percent, and less than 0.1 percent of total firms in those sectors, with slightly higher impacts under the percentile approach. All other sectors would see moderate positive impacts under both approaches, impacting 0.1-0.2 percent of all firms in most of those sectors. Overall, the changes to size standards as the result of the changes in the methodology, if adopted, would have a minimal impact on number businesses that qualify as small under the existing size standards. Excluding NAICS Sectors 42 and 44-45 and Subsectors 111 and 112, 97.74 percent of businesses would qualify as small under the new calculated size standards using the “anchor” approach vs. 97.69 percent qualifying under the “percentile” approach in the Revised Methodology. Under the current size standards, 97.73 percent of businesses are classified as small.

    Alternative Size Standards Methodologies Considered

    The Revised Methodology presents the current size standards methodology employed by SBA. Certainly other methodologies may be developed by applying different assumptions, data sources, and objectives. Over the years, SBA has refined its methodology within a consistent conceptual framework based on the analysis of industry and relevant program data. Several alternative methodologies have been suggested to SBA. In critiquing these, SBA has continued to believe that its historical methodology is sound and adequate because it has resulted in size standards that have been widely accepted by the public and found to be effective in providing Federal assistance to small businesses. Below is a brief description and evaluation of four alternative methodologies suggested to SBA.

    Financial Performance Analysis

    Industry and financial analysts assess the economic viability of businesses using various financial performance indicators, such as return to capital (assets), gross margins, net worth, etc. Several private organizations and government agencies aggregate financial data at the firm level to derive the corresponding data at the industry level. Pursuant to the Small Business Act aimed at assisting businesses that are competitively disadvantaged, financial performance indicators may provide an alternative basis for developing small business size standards.1

    1See Jim Blum (1991) for evaluation of financial performance analysis as an alternative tool for establishing size standards. Jim was a MBA intern under Gary Jackson, Director of Size Standards.

    This approach may provide a basis for identifying businesses, which, due to their size, may be underperforming relative to established industry norms. This, in turn, would form a basis for establishing size standard levels that can target businesses that are in need of Federal assistance.

    The major disadvantage of the financial performance analysis approach is, however, the lack of robust and consistent data across industries for several reasons. First, financial data are not available for all industries at the 6-digit NAICS level, especially the distribution of businesses by size. Second, data at the industry level or by size class may be based only on a limited sample of businesses. Third, financial data are also likely to be riddled with measurement errors and accounting holes. These problems as well as concerns related to how businesses are classified in an industry and the treatment of affiliates may limit the applicability of available financial data to size standards analysis. More importantly, there is not necessarily a robust correlation between financial performance measures and size of a business. For example, during economic downturns even very large businesses may perform very poorly in terms of financial indicators, thereby potentially qualifying them as small businesses under size standards based on financial measures.

    Given above problems with financial data and possibilities of very large businesses of being qualified as small based on financial indicators, SBA has determined that a financial performance analysis alone is not applicable to developing small business size standards. However, SBA will explore if certain financial indicators can be incorporated into the existing size standards methodology as additional factors.

    Size Standards Based on Program Objectives

    Federal contracting and some SBA financial programs have established specific objectives (targets) in providing assistance to small businesses. Some industrial economists suggest that varying size standards may serve as a tool in ensuring that small businesses are receiving the targeted level of Federal assistance.2

    2 CONSAD. Proposed Options for Settings Business Size Standards.

    The advantage of this approach is that SBA and other Federal agencies can identify and estimate gaps between their predetermined objectives and current levels of attainment for an individual industry or a group of industries. Based on these gaps and the expected impacts of changes in current levels of size standards on program objectives, revised levels of size standards can be established. If an industry's gap in attainment of an objective is positive, its size standard can be reduced. Similarly, if the gap is negative, the level of associated size standard can be increased. Through repeated (iterative) adjustments of size standards this way would result in higher degrees of attainment of various objectives and produce uniform levels of size standards for similar groups of industries.

    There are several serious flaws with this approach. First, the size standard becomes a function of a size of business supporting some predetermined levels of program objectives instead of identifying businesses that are, due to their size and other reasons, in a competitively disadvantaged position and need Federal assistance. Second, the approach generates fluctuating size standards based on past trends of small business assistance as opposed to those based on current needs of small businesses. Third, this approach assumes that the decision to approve a loan or award a contract is based primarily on the size of a business size rather than its credit worthiness or capabilities to execute Federal contracts. Fourth, the necessary data to evaluate the size standards are not available on a timely basis. For example, detailed industry data are available only once every five years. Similarly, verified Federal contacting data usually have least one year time lag. Finally, this approach would require establishing size standards on a program-by-program basis, thereby making size standards more complex and confusing to users.

    For the above reasons, SBA does not apply this approach for establishing size standards. The Agency feels that a size standards methodology must focus on identifying businesses that are in need of assistance as opposed to what level of assistance is provided under a particular program. SBA considers the small business participation in Federal contracting and SBA financial programs as one of the five factors in its current methodology. The frequent adjustment of size standards under this approach would create a high level of uncertainty among small businesses and overwhelm the regulatory process. This approach would be more appropriate as a program evaluation tool rather than a size standards methodology.

    Size Standards Based on General and Administrative Workforce

    A size standard for an industry may also be developed by examining the level of general and administrative workforce needed for a business to be competitive and calculating the amount of revenues at that level of workforce. General and administrative workers do not directly contribute to revenues of a business and must be supported by revenues generated from the goods and services produced. Total revenues needed to support the general and administrative workforce for a competitive business can be calculated based on average overhead rates, general and administrative compensation, fess, direct labor costs, materials, and subcontractor costs for a relevant industry.

    This approach takes into consideration at what size a business becomes competitive. It attempts to identify the size of business that has overcome the competitive disadvantages associated with size.

    The primary disadvantage of this approach is its reliance on an assumption that there exists a level of general and administrative workforce for a business to be competitive. There are no data sources that objectively provide that information. This approach also suffers from several methodological flaws, the most significant of which is inferring specific business level experience to the industry level. The type of data necessary to perform the calculation may be biased towards large businesses that are more likely to report such data.

    SBA does not use this approach because of the degree of arbitrariness of the underlying assumption. Moreover, this approach is likely to result in a much higher level of size standard, while an industry comprises a large number of competitive businesses below that level.

    Size Standards Based on Qualitative Characteristics

    While most size standards methodologies tend to define a small business in quantitative terms (e.g., the number of employees, annual receipts, amount of assets, etc.), some business analysts and industry economists have also attempted to define a small business in qualitative terms. Under this approach, certain characteristics are used to differentiate businesses that are small from those that are not small. Some of the most commonly cited characteristics in the literature include the management and ownership structure of the business, control and decision making process, and sources of financing. Specifically, small businesses tend to share the following characteristics: They are independently owned and operated; they are closely controlled by owners/managers who also contribute most of the operating capital; and principal decision making functions rest with owners/managers.3

    3See Holmes and Gibson (2001) for a detailed analysis of various quantitative and qualitative definitions of small business.

    This approach resolves the inherent arbitrariness associated a strict numerical definition. It also focuses on the notion of what factors distinguish a business as small relative to a competitively viable business operation.

    The most obvious disadvantage of this approach rests with the ability of SBA to verify the small business status. An on-site review of the business would have to be conducted to determine small business status. Also, businesses would not have definitive criteria to quickly assess their small business status. The difficulty of obtaining a consensus on what characteristics to examine and their interpretation would render the implementation of a qualitative small business size standard more contentious than a numerical approach.

    The requirement to establish a definitive and easily verifiable small business size standard precludes this approach as an alternative size standards methodology for SBA.

    Request for Comments

    In addition to comments on the various policy issues, SBA welcomes comments from the public on a number of other issues concerning its size standards methodology. Specifically, SBA invites feedback and suggestions on the following:

    • Should SBA establish size standards that are higher than industry's entry-level business size? SBA generally sets size standards higher than the entry-level business size to enable small businesses to compete against others of their size and (often) considerably larger businesses for Federal contracts set aside for small businesses. It is important that small businesses be able to apply for and be eligible for SBA's various business development programs that have additional requirements, such as a minimum number of years in business to qualify for its 8(a) Business Development Program. This precludes setting size standards at too low a level or at the entry-level size. Additionally, establishing size standards at the industry entry-level firm size would cause small businesses to outgrow their eligibility very quickly, thereby lacking sufficient cushion or experience to succeed outside of the small business market and leading to their demise. Finally, size standards must be above the entry-level size to ensure small businesses have necessary resources and capabilities to be able to perform and meet Federal government contracting requirements.

    • Should size standards vary from program to program? In other words, should SBA establish one set of standards for SBA loan programs, another for Federal procurement, or yet another for other Federal programs? SBA had, in the 1980s, established different size standards for different programs. The result had been that some firms were small for some programs and large for others. Such size standards were very confusing to users and caused unnecessary and unwanted complexity in their application. The statutory guidance encourages an industry-by-industry analysis and not a program-by-program analysis when developing small business size definitions. While the characteristics and needs of a particular SBA program may necessitate the deviation from the uniform size standards, the Agency will continue its general policy of favoring one set of size standards for all programs. However, SBA has established 13 special size standards for some activities within certain industries for Federal government purposes. Similarly, for industries in Wholesale Trade and Retail Trade, SBA has established industry specific size standards for SBA's loan and Federal nonprocurement programs and a common 500-employee size standard for Federal procurement under the nonmanufacturer rule. Additionally, for SBA's SBIC, 7(a), and CDC/504 Programs businesses can qualify either based on industry specific size standards for their primary industries or based a tangible net worth and net income based alternative size standard.

    • Should size standards apply nationally or should they vary geographically? The data SBA obtains from the Economic Census are national data. While the Economic Census does publish a Geographic Series of the data, application of those data to evaluating and establishing size standards would be cumbersome and time consuming at best, resulting in a very complex set of size standards that would likely be unusable. For example, in Federal contracting, how would a contracting officer set the size standard on a contracting opportunity? Would it depend on the contracting officer's location? On the location of the Agency's headquarters? On the place of delivery of the product or service? What about multiple delivery locations? On the location of the prospective contractor? On the location of the prospective contractor's headquarters? What if that were not in the U.S.? What about subcontractors, since size standards apply to their contracts as well? The same questions could be asked about them, which would affect a prime contractor's ability to bid. Would this encourage firms to relocate based upon perceived favorable size standards? That would defeat the purpose behind geographic distinctions. The undue complexity and resulting confusion would render geographic size standards unusable, for all practical purposes.

    • Should there be a single basis for size standards—i.e., should SBA apply the number of employees, receipts, or some other basis to establish its size standards for all industries? SBA considered having a single basis for its size standards in the past. In 2004, SBA proposed to establish all size standards based on number of employees. This proposal received mixed comments from the public SBA withdrew the proposal. Commenters viewed either that either receipts was a more suitable measure of size for many industries or that the proposed employment levels were too low.

    • Should there be a ceiling beyond which a business concern cannot be considered as small? In other words, should there be a maximum size standard? SBA has not increased its employee based standards beyond the 1,500-employee level. However, receipts based size standards have gradually increased over time and the highest standard stands at $38.5 million today. This is a policy decision that the Agency should make—is there a size beyond which a business is not small?

    • Should there be a fixed number of size standard ranges or “bands” as SBA applied for the recently completed comprehensive size standards review? This was one of the issues to which SBA sought comments in the recent review and generally received favorable comments from the public. However, NDAA 2013 amended the statute requiring SBA not to limit the number of size standards and assign the appropriate size standard to each NAICS industry. Similarly, should SBA establish a common size standard for related industries even though the data may support different size standards for individual industries?

    • Should SBA consider adjusting employee based size standards for labor productivity growth or increased automation? Just as firms in industries with receipts based standards may lose small business eligibility due to inflation, firms in industries with employee based standards may gain eligibility due to improvement in labor productivity. While the original $1 million receipts based size standard has now increased to $7.5 million due to adjustments for inflation, the 500-employee manufacturing size standard set at the inception of SBA has remained the same.

    • Should SBA consider lowering its size standards? SBA receives periodic comments from the public that its standards are too high in certain industries or for certain types of Federal contracting opportunities. The comments generally concern the competitive edge that large small businesses have over the “truly small businesses” (a phrase heard frequently from commentators). This has always been a challenging issue, one that SBA has had to deal with over the years. SBA's size standards appear large to the smallest of small businesses while larger small businesses often request even higher size standards. In the recently completed comprehensive size standards review, in view of weak economic conditions and various measures Federal Government implemented to stimulate employment and economic growth, SBA decided to not lower size standards even if the data supported lowering them. This issue is partly tied to Federal procurement trends of contracts getting larger over time, and they are often out of the reach of the “truly small businesses.”

    • Should SBA size standards be specific, i.e., to the precise dollar calculated based on the data and information it evaluates? Or should SBA recognize that there are other factors that go into establishing size standards, such as the fact that the data SBA evaluates is not static, industries change over the years, and even within a given year.

    • Should SBA round off its calculated size standards for the various industries? If so, should SBA always round up? To what level? If not, what about those industries that do not get increases in size standards when others are? What should be the cut-off point for rounding either one way or the other?

    • SBA's new percentile approach to evaluating industry characteristics, which will replace the “anchor” size standards approach the Agency used in the past.

    • Alternative methodologies for determining small business size standards.

    • How SBA's size standards impact competition in general and within a specific industry?

    • Alternative or additional factors that SBA should consider.

    • Whether SBA's approach to small business size standards makes sense in the current economic environment.

    • Whether there are gaps in SBA's methodology because of the lack of comprehensive industry and Federal market data.

    • Alternative or other factors or data sources SBA should consider when establishing, reviewing, or modifying size standards.

    SBA encourages the public to review and comment on the Revised Methodology, which is available at https://www.sba.gov/size-standards-methodology as well as at https://www.regulations.gov. SBA will thoroughly evaluate and consider all comments and suggestions when finalizing the Revising Methodology, which the Agency will apply in the forthcoming, second five-five year review of size standards as required by the Jobs Act.

    Dated: April 13, 2018. Linda E. McMahon, Administrator.
    [FR Doc. 2018-08418 Filed 4-26-18; 8:45 am] BILLING CODE 8025-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0301; Product Identifier 2017-NM-112-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 series airplanes, Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. This proposed AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). This proposed AD would require replacement of a certain PBOV with a different PBOV. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 11, 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 Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this 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-2018-0301; 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:

    Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.

    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-2018-0301; Product Identifier 2017-NM-112-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

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0153, dated August 17, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes, Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. The MCAI states:

    An occurrence was reported where yellow hydraulic system, including both braking accumulators, was lost. This was confirmed by ECAM [electronic centralized aircraft monitor] warnings and single chimes during taxiing. Normal braking on green hydraulic circuit was used until aeroplane stopped at parking position. A few seconds later, the aeroplane slowly accelerated, until colliding with a wall and a bus. The crew reported that the parking brake was selected and full braking pedals were applied, but with no effect since normal braking was inhibited after Parking Brake was set to ON. Investigation results identified that this occurrence was due to failure of the parking brake operated valve (PBOV), Part Number (P/N) A25315-1.

    This condition [parking brake failure], if not corrected, could lead to further incidents, possibly resulting in damage to the aeroplane and injury to persons on the ground.

    Prompted by this event, Airbus issued Service Bulletin (SB) A300-32-0467, SB A310-32-2151, SB A300-32-6117 and SB A300-32-9023, as applicable, to provide instructions for in-service installation of the PBOV P/N A25315020-2 introduced by Airbus Modification 13201 for A300/A310/A300-600 and Airbus Modification 19601 for A300-600ST.

    For the reason described above, this [EASA] AD requires replacement of the PBOV P/N A25315-1 by PBOV P/N A25315020-2.

    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-2018-0301.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A300-32-0467, dated July 4, 2017; Service Bulletin A300-32-6117, dated July 4, 2017; and Service Bulletin A310-32-2151, dated July 4, 2017. This service information describes procedures for replacing the PBOV. These documents are distinct since they apply to different airplane models. 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 147 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
    PBOV replacement 6 work-hours × $85 per hour = $510 $4,764 $5,274 $775,278
    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): Airbus: Docket No. FAA-2018-0301; Product Identifier 2017-NM-112-AD. (a) Comments Due Date

    We must receive comments by June 11, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(6) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.

    (2) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.

    (3) Model A300 B4-605R and B4-622R airplanes.

    (4) Model A300 F4-605R and F4-622R airplanes.

    (5) Model A300 C4-605R Variant F airplanes.

    (6) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). We are issuing this AD to prevent failure of the PBOV, which could result in no braking capability during ground operations, possibly leading to damage to the airplane and injury to people on the ground.

    (f) Compliance

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

    (g) PBOV Replacement

    Within 60 months after the effective date of this AD, replace the PBOV having part number (P/N) A25315-1 with a PBOV having P/N A25315020-2, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-32-0467, dated July 4, 2017; Airbus Service Bulletin A300-32-6117, dated July 4, 2017; or Airbus Service Bulletin A310-32-2151, dated July 4, 2017; as applicable.

    (h) Parts Prohibition

    (1) After modification of an airplane as required by paragraph (g) of this AD, do not install any PBOV having P/N A25315-1 on that airplane.

    (2) For an airplane that, as of the effective date of this AD, has a PBOV having P/N A25315020-2 installed: As of the effective date of this AD do not install any PBOV having P/N A25315-1 on that airplane.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0153, dated August 17, 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-2018-0301.

    (2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 11, 2018. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-08653 Filed 4-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0300; Product Identifier 2017-NM-134-AD] RIN 2120-AA64 Airworthiness Directives; Airbus 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 Airbus Model A318, A319, and A320 series airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. This proposed AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate revised fuel airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 11, 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 Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this 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-2018-0300; 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:

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

    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-2018-0300; Product Identifier 2017-NM-134-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

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0169, dated September 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, and A320 series airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The MCAI states:

    The Fuel Airworthiness Limitations (FAL) for Airbus A320 family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 5 document. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in a fuel tank explosion and consequent loss of the aeroplane.

    * * * the Federal Aviation Administration (FAA) published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) published interim Policy INT/POL/25/12. In response to these regulations, Airbus conducted a design review to develop FAL for Airbus A320 family aeroplanes.

    The FAL were specified in Airbus A318/A319/A320/A321 FAL document ref. 95A.1931/05 at issue 04 for A318/A319/A320/A321 aeroplanes. This document was approved by EASA and is now referenced in Airbus A318/A319/A320/A321 ALS Part 5 to comply with EASA policy statement (EASA D2005/CPRO).

    Previously, EASA issued AD 2014-0260 [which corresponds to FAA AD 2016-20-12, Amendment 39-18678 (81 FR 72507, October 20, 2016) (“AD 2016-20-12”)] to require accomplishment of all FAL-related actions as described in ALS Part 5 at Revision 01. ALS Part 5 Revision 02 and 03 were not mandated because no significant changes were introduced with these Revisions. The new ALS Part 5 Revision 04 (hereafter referred to as `the ALS' in this [EASA] AD) includes new and/or more restrictive requirements and extends the applicability to model A320-251N, A320-271N, A321-251N, A321-253N and A321-271N aeroplanes.

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2014-0260, which is superseded, and requires implementation of the actions specified in the ALS.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0300.

    Relationship of This Proposed AD to AD 2016-20-12

    This NPRM would not supersede AD 2016-20-12. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2016-20-12.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 5 Fuel Airworthiness Limitations (FAL), Revision 04, dated April 6, 2017. This service information describes fuel system airworthiness limitations. 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 designs.

    This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections) and Critical Design Configuration Control Limitations (CDCCLs). Compliance with these actions and CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

    Differences Between This Proposed AD and the MCAI or Service Information

    The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.

    Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.

    In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.

    To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.

    This proposed AD therefore would apply to Airbus Model A318, A319, and A320 series airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of approval of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.

    Costs of Compliance

    We estimate that this proposed AD affects 1,250 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

    Authority for This Rulemaking

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

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

    This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes 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): Airbus: Docket No. FAA-2018-0300; Product Identifier 2017-NM-134-AD. (a) Comments Due Date

    We must receive comments by June 11, 2018.

    (b) Affected ADs

    This AD affects AD 2016-20-12, Amendment 39-18678 (81 FR 72507, October 20, 2016) (“AD 2016-20-12”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before April 6, 2017.

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

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

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

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

    (d) Subject

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

    (e) Reason

    This AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 5 Fuel Airworthiness Limitations (FAL), Revision 04, dated April 6, 2017. The initial compliance times for new or revised tasks are the minimum intervals or times specified in Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 5 Fuel Airworthiness Limitations (FAL), Revision 04, dated April 6, 2017, or within 30 days after the effective date of this AD, whichever occurs later.

    (h) No Alternative Actions, Intervals, or Critical Design Configuration Control Limitations (CDCCLs)

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

    (i) Terminating Action for AD 2016-20-12

    Accomplishing the actions required by this AD terminates all requirements of AD 2016-20-12.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0169, dated September 7, 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-2018-0300.

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

    (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this 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 April 11, 2018. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-08649 Filed 4-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0303; Product Identifier 2018-NM-006-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. 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 Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. This proposed AD was prompted by a report that the retraction actuator eye-end of a Goodrich main landing gear (MLG) failed. This proposed AD would require a one-time general visual inspection of the left-hand (LH) and right-hand (RH) MLG retraction actuators 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 June 11, 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 Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; internet http://www.myfokkerfleet.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-2018-0303; 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:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0303; Product Identifier 2018-NM-006-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

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0001, dated January 4, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:

    An occurrence was reported where, following take-off after gear up selection, the retraction actuator eye-end (P/N [part number] 41518-3) of a Goodrich MLG failed. After the LG UNSAFE indication, the flight crew successfully selected gear down and locked by applying the alternate extension procedure, and an uneventful landing was made. Investigation results showed that the final overload fracture of the eye-end was preceded by fatigue cracks, believed to have been caused by interference between the MLG retraction actuator eye-end and the actuator bracket. It was also highlighted that the affected eye-end had been installed incorrectly, i.e. with the grease nipple located on the lower side, thus causing damage to the eye-end due to interference with the bracket. Further investigations revealed other occurrences of interference between retraction actuator eye-end and bracket with resulting damage.

    This condition, if not detected and corrected, could prevent retraction of the MLG and/or its complete extension, possibly resulting in damage to the aeroplane during landing, and consequent injury to occupants.

    To address this potential unsafe condition, Fokker Services published SBF100-32-168 to provide inspection and replacement instructions.

    For the reasons described above, this AD requires a one-time [general visual] inspection [for deficiencies] (check the eye-end for presence of interference/damage and for orientation of the greasing nipple) of the MLG retraction actuators, left-hand (LH) and right-hand (RH) sides, and, depending on findings, replacement.

    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-2018-0303.

    Related Service Information Under 1 CFR Part 51

    Fokker Services B.V. has issued Fokker Service Bulletin SBF100-32-168, dated May 22, 2017. This service information describes procedures for a one-time general visual inspection for deficiencies of the Goodrich MLG retraction actuators and replacement of the actuator if necessary (e.g., if the retraction actuator greasing nipple is not located on the upper side MLG retraction actuator eye-end or if interference damage or evidence of removed damage is present on the eye-end of the MLG retraction actuator). 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 5 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 1 work-hour × $85 per hour = $85 per inspection cycle $0 $85 per inspection cycle $425 per inspection cycle.

    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 $0 $85.
    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): Fokker Services B.V.: Docket No. FAA-2018-0303; Product Identifier 2018-NM-006-AD. (a) Comments Due Date

    We must receive comments by June 11, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes, certificated in any category, all serial numbers, if equipped with Goodrich main landing gear (MLG), part number (P/N) 41050-x (all dashes) or P/N 41060-x (all dashes).

    (d) Subject

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

    (e) Reason

    This AD was prompted by a report that the retraction actuator eye-end of a Goodrich MLG failed. We are issuing this AD to address failure of the retraction actuator eye-end of a Goodrich MLG, which could prevent retraction of the MLG and/or its complete extension, possibly resulting in damage to the airplane during landing, and consequent injury to occupants.

    (f) Compliance

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

    (g) Definition

    For the purposes of this AD, a “serviceable part” is a serviceable retraction actuator with an eye-end that does not have any indication of interference or damage, as specified in the Accomplishment Instructions of Fokker Service Bulletin SBF100-32-168, dated May 22, 2017.

    (h) Inspection and Corrective Action

    Within 12 months after the effective date of this AD, perform a general visual inspection of the left-hand (LH) and right-hand (RH) MLG retraction actuators for deficiencies (i.e., check for the presence of interference damage, including evidence of removed damage, and for the orientation of the greasing nipple). If any deficiency is found, before further flight, replace the affected MLG retraction actuator with a serviceable part in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-32-168, dated May 22, 2017.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0001, dated January 4, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0303.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    (3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; internet http://www.myfokkerfleet.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 April 11, 2018. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-08650 Filed 4-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket Number USCG-2016-0916] RIN 1625-AA01 Anchorages; Captain of the Port Puget Sound Zone, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking; withdrawal.

    SUMMARY:

    The Coast Guard is withdrawing its notice of proposed rulemaking entitled “Anchorages; Captain of the Port Puget Sound Zone, WA” that we published on February 10, 2017. The Coast Guard is withdrawing this rulemaking in response to public comments and to better analyze potential impacts to tribal treaty rights, especially treaty fishing rights.

    DATES:

    The notice of proposed rulemaking is withdrawn on April 27, 2018.

    ADDRESSES:

    The docket for this withdrawn rulemaking is available by searching docket number USCG-2016-0916 using the Federal portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of inquiry, call or email LCDR Christina Sullivan, U.S. Coast Guard Sector Puget Sound; telephone 206-217-6042, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations FR Federal Register NPRM Notice of Proposed Rulemaking II. Background

    We published a notice of proposed rulemaking (NPRM) in the Federal Register on February 10, 2017 (82 FR 10313), entitled “Anchorages; Captain of the Port Puget Sound Zone, WA.” In the NPRM, we proposed the creation of several new anchorages, holding areas, and a non-anchorage area as well as the expansion of one existing general anchorage in the Puget Sound area, as detailed in the proposed regulatory text. The Coast Guard received feedback from concerned citizens, commercial entities, environmental groups, and from Indian Tribal Governments and tribal officials regarding the proposed rulemaking. These comments were made available in the docket. Based on the information received from the tribes in the docket, the Coast Guard is withdrawing the proposed rulemaking at this time so as to better analyze tribal impacts before conducting further rulemaking on anchorages in Puget Sound. The Coast Guard actively exercises its authority to manage vessel traffic in the Puget Sound in a safe and effective manner, both historically and at present. The Coast Guard is committed to improving the navigational safety of all Puget Sound waterway users, and is continually engaged in efforts to improve safety through coordination with waterways users.

    The Coast Guard provided notice of its intent to withdraw the rulemaking and also its intent not to schedule consultation with the tribes on the proposed rulemaking in light of the withdrawal. In that published notification (82 FR 54307, November 17, 2017), the Coast Guard requested comment on whether or not withdrawal is appropriate, and also if tribal consultation was still necessary in light of the Coast Guard's stated intent to withdraw the proposed rule.

    III. Discussion of Comments

    The Coast Guard received nine written submissions in response to its request for comment on its intent to withdraw the proposed rule; six concerned citizens, two on behalf of coalitions of environmental groups, and one from a federally recognized tribe. Of the nine commenters, one commenter supported the withdrawal, three commenters indicated that withdrawal is not supported without an environmental impact statement being done, one commenter supported continuing with the rule so long as an environmental impact study is conducted, and four commenters made no affirmative or negative comment on withdrawal of the proposed rule, but requested an environmental impact statement. The Coast Guard is withdrawing its proposed rulemaking based on the comments received and in order to better analyze the impacts to tribal treaty rights, especially treaty fishing rights.

    All commenters requested or emphasized the importance of an environmental impact statement. The Coast Guard will follow all applicable laws and regulations, including the National Environmental Policy Act, with respect to any anchorages rulemaking in the Puget Sound that may be conducted in the future.

    Two commenters requested the Coast Guard conduct an environmental impact statement on the use of uncodified anchorages before withdrawing the current proposed rule. The Coast Guard's withdrawal of the proposed anchorage rule is not a government action for which an environmental impact statement on the uncodified anchorages is required.

    Two commenters indicated that tribal consultation is appropriate within the proposal area with respect to the proposed rule, two commenters deferred to tribal governments on the issue of whether tribal consultation on this rule is appropriate, and one tribe commented that it had previously engaged with the Coast Guard on a government-to-government basis and submitted comments on the proposed rule. The Coast Guard is committed to upholding its responsibilities as the federal trustee of the tribes' interests, and will conduct formal government-to-government consultation when required under Executive Order 13175. The Coast Guard is withdrawing the current proposed rulemaking and has engaged with the tribes to address broader treaty rights issues in processes outside this rulemaking. As a result of the above actions, the Coast Guard will not conduct consultation on this specific rulemaking.

    IV. Withdrawal

    The Coast Guard has determined that withdrawing the proposed rule is appropriate based on the new information received from the tribes in the docket. Accordingly, the Coast Guard is withdrawing the “Anchorages; Captain of the Port Puget Sound Zone, WA” proposed rulemaking announced in an NPRM published February 10, 2017 (82 FR 10313). As noted, the Coast Guard has the authority and ability to manage vessel traffic in the Puget Sound in a safe and effective manner. We are committed to improving the navigational safety of all Puget Sound waterway users, and will continually consider ways to do so in an effective and least burdensome manner consistent with tribal treaty fishing rights.

    Dated: April 23, 2018. David G. Throop, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
    [FR Doc. 2018-08871 Filed 4-26-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 9 RIN 2900-AQ12 Veterans' Group Life Insurance Increased Coverage AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    Current statutory provisions provide Veterans' Group Life Insurance (VGLI) insureds under the age of 60 with the opportunity to increase their VGLI coverage by $25,000 not more than once in each 5-year period beginning on the 1-year anniversary of the date a person becomes insured under VGLI. The Department of Veterans Affairs (VA) proposes to amend its VGLI regulations to establish a permanent regulatory framework for such elections of increased coverage. The proposed rule would also clarify that coverage increases in an amount less than $25,000 are available only when existing VGLI coverage is within $25,000 of the Servicemembers' Group Life Insurance current maximum of $400,000, and any increases of less than $25,000 must be only in an amount that would bring the insurance coverage up to the statutory maximum.

    DATES:

    Comment Date: Comments must be received by VA on or before June 26, 2018.

    ADDRESSES:

    Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AQ12 Veterans' Group Life Insurance Increased Coverage.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll free number.) In addition, during the comment period, comments are available online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Karen Naccarelli, Department of Veterans Affairs Insurance Center (310/290B), P.O. Box 13399, Philadelphia, PA 19101, (215) 381-3029. (This is not a toll free number.)

    SUPPLEMENTARY INFORMATION:

    Before the passage of the Veterans' Benefits Act of 2010, Public Law 111-275, 404, 124 Stat. 2864, 2879-2880 (2010), the maximum amount of VGLI coverage available to a former member (also referred to as “the insured” hereafter) was limited to the amount of Servicemembers' Group Life Insurance (SGLI) coverage in force at the time of separation from service. See 38 U.S.C. 1977(a)(1). Section 404 of the Veterans' Benefits Act of 2010 amended the governing statute, 38 U.S.C. 1977, to authorize insureds who are under 60 years of age and who have less than the statutory maximum of SGLI coverage to elect in writing to increase coverage by $25,000 not more than once in each 5-year period beginning on their 1-year VGLI coverage anniversary date. Section 404 enables former members to keep pace with changing economic conditions by purchasing adequate amounts of life insurance to protect their families. Section 404 added to 38 U.S.C. 1977(a) a new paragraph (3), which took effect April 11, 2011. To promptly implement this statutory change, VA adopted interim procedures for increasing VGLI coverage. See “Servicemembers' and Veterans' Group Life Insurance Handbook,” ch. 12, para. 12.01, on the VA Insurance website at http://www.benefits.va.gov/INSURANCE/resources_handbook_ins_chapter12.asp (outlining the interim process). Since the 2011 change in law, 70,569 VGLI insureds have participated in VGLI increased coverage opportunities as of the end of calendar year 2016, electing additional coverage in the amount of $1,764,710,000. The proposed regulation is intended to establish a permanent regulatory framework for affording additional VGLI coverage under section 404.

    VA proposes to exercise the Secretary's authority under 38 U.S.C. 501 and amend its regulations to establish a permanent regulatory framework for affording VGLI insureds the opportunity to purchase increased coverage pursuant to 38 U.S.C. 1977(a)(3). Under 38 U.S.C. 1977(b)(2), VGLI is only renewable on a “five-year term basis,” while subsection (a)(3) provides for elections of increased coverage of $25,000 not more than once in each 5-year period beginning on the 1-year anniversary of the date a person becomes insured under VGLI. See 38 U.S.C. 1977. Because the statutory language does not specify the invitation period(s) for VGLI insureds to elect increased coverage, VA proposes to amend 38 CFR 9.2 to address the gap. Proposed § 9.2(b)(5) would provide that the VGLI insured's first opportunity to increase coverage would be on the one-year VGLI coverage anniversary date, the earliest date permissible under the authorizing statute. The insured could subsequently elect to increase coverage on the 5-year anniversary date from the first VGLI coverage increase election opportunity and on each 5-year anniversary from the date of the last VGLI coverage increase opportunity thereafter.

    The proposed amendment of § 9.2 is consistent with 38 U.S.C. 1977(a)(3), which states that the insured has the opportunity to increase coverage “[n]ot more than once in each five-year period beginning on the 1-year anniversary of the date a person becomes insured under Veterans' Group Life Insurance.” As stated, the authorizing statute is silent about if and when an insured will be notified about the opportunity to increase coverage. Accordingly, VA's proposed regulation is intended, in part, to address this gap in the statutory language. Specifically, the proposed regulation would provide that after VGLI enrollment, the insurer will invite insureds to increase coverage not less than 120 days prior to the 1-year anniversary from initial VGLI coverage and not less than 120 days prior to each 5-year anniversary date from the date of the last VGLI coverage increase election opportunity, until the former member has elected the SGLI statutory maximum (currently $400,000) or has attained the age of 60 years, whichever occurs first.

    In addition, VA seeks to make clear in this proposed rule that insureds must elect increased coverage within 120 days prior to their VGLI one-year anniversary date and/or within 120 days prior to each subsequent 5-year anniversary date from the last VGLI coverage increase election opportunity. VA has determined that the 120-day period is a reasonable period of time for insureds to review their financial needs and make informed decisions regarding whether to request additional coverage. As such, the proposed regulation would allow VGLI insureds to elect increased coverage within 120 days prior to the 1-year anniversary date and within 120 days prior to each 5-year anniversary date from the date of the last VGLI increase opportunity as long as the insured remains eligible to do so, i.e., is under the statutory coverage limit and under 60 years of age.

    For example, if a former member purchased $300,000 in VGLI coverage effective April 11, 2017, the former member would be eligible to request an additional $25,000 of VGLI coverage beginning 120 days prior to April 11, 2018. The increased coverage would be effective April 11, 2018. The next opportunity to increase coverage would be April 11, 2023, the first 5-year anniversary date from the last VGLI coverage increase election opportunity. Subsequently, the former member would have the opportunity to buy an additional $25,000 in VGLI coverage once every five years for as long as the former member was under 60 years of age and held $400,000 or less in VGLI coverage. See 38 U.S.C. 1977(a)(3).

    The proposed regulation would afford the insured the earliest opportunity to increase coverage permitted under the statute, namely on the one-year anniversary after coverage begins and on each subsequent 5-year anniversary date from the last VGLI increase election opportunity. See 38 U.S.C. 1977(b)(2). Moreover, the proposed amendment would ensure that such increases in coverage would occur during predictable periods. This would allow both the insured and the insurer to plan for any potential changes in the in-force coverage amount and the corresponding premiums. This aspect of predictability about the timing of coverage elections would support the goal of managing the VGLI program based on sound actuarial principles, while also affording insureds ample opportunities to elect increased coverage if they choose to do so. Under the proposed regulatory amendment, insureds could make assessments about future financial plans and the insurer could apply the increased coverage amount(s) at predictable intervals, namely at the time of the first year anniversary date after coverage began or at the time of each subsequent 5-year anniversary date(s) of the last VGLI coverage increase election opportunity. The insurer would apply any increased coverage from the date of the 1-year anniversary and/or from any 5-year anniversary date from the most recent VGLI coverage increase election opportunity.

    By limiting opportunities to increase VGLI coverage to the initial, 1-year coverage anniversary date and every 5-year anniversary date of the last VGLI coverage increase election opportunity thereafter, VA would provide insureds the opportunity to meet their financial needs while mitigating the potentially negative impact of adverse selection in the VGLI program. Adverse selection occurs when individuals use their superior knowledge of their insurability to minimize the period of time over which they are likely to pay premiums for coverage. Such a practice unfairly shifts the premium paying burden to other individuals paying premiums for coverage over a longer period of time and potentially undermines the financial health of the program to the detriment of all insureds. Insurance programs rely on a pooling of risks, and premium rates are set according to the expected mortality of the insurance pool. If a disproportionate number of insureds in substandard health enter the program or carry higher coverage amounts than healthier individuals in the program, the increased mortality experience will exceed that upon which the premium rates are based and could impact the program negatively by driving up the cost of premiums for all program participants. Consistent with industry practices designed to keep premium rates affordable, insurance providers typically limit changes in policies to certain defined periods of time, such as open seasons or during renewal periods. By limiting VGLI coverage changes only at established intervals, such as the initial, 1-year anniversary from the coverage date and each 5-year anniversary date from the last VGLI coverage increase election opportunity thereafter, VA would ensure that VGLI insureds have ample opportunity to increase coverage in a manner that is both consistent with industry practice and beneficial to insureds.

    As it relates to the amount of increased coverage elected at one time, the statutory language of 38 U.S.C. 1977(a)(3) provides that an increase in coverage is generally allowable in intervals of $25,000; however, the statute is silent as to the options available to VGLI insureds who have coverage of more than $375,000, i.e., within less than $25,000 of the current statutory maximum. To address this gap in the statutory language, VA's proposed rule would also clarify that increases of less than $25,000 shall be permitted only when VGLI coverage in force is within less than $25,000 of the statutory maximum. In such circumstances, coverage increases in an amount less than $25,000 would only be allowed in the amount required to increase coverage up to the current statutory maximum of $400,000. For example, if an insured has coverage of $380,000, the proposed rule would permit an increase of $20,000 in order to bring the insured's coverage up to the current SGLI maximum of $400,000. If not for this exception, those within less than $25,000 of the statutory maximum coverage amount would be forever barred from increasing their coverage because doing so would result in coverage in excess of the SGLI maximum of $400,000, which is not permitted by law. VA's proposed rule would seek to avoid this harsh result and make permanent the current, interim policy that allows insureds with more than $375,000 coverage the opportunity to elect additional coverage up to the statutory maximum. There is flexibility in this area because 38 U.S.C. 1977(b)(5) authorizes the Secretary to set terms and conditions for VGLI that he determines to be reasonable and practicable. The exception outlined above is both permissible within the scope of the statute and furthers its intent to allow up to $400,000 in VGLI coverage.

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on state, local, and tribal governments or the private sector.

    Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C 3501-3521).

    Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.

    Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the programs affected by this document is 64.103, Life Insurance for Veterans.

    List of Subjects in 38 CFR Part 9

    Life insurance; Military personnel; Veterans.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jacquelyn Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on February 23, 2018, for publication.

    Dated: April 23, 2018. Jeffrey M. Martin, Impact Analyst, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 9 as follows:

    PART 9—SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP LIFE INSURANCE 1. The authority citation for part 9 continues to read as follows: Authority:

    38 U.S.C. 501, 1965-1980A, unless otherwise noted.

    2. In § 9.2, add new paragraph (b)(5) to read as follows:
    § 9.2 Effective date; applications.

    (b) * * *

    (5) Pursuant to 38 U.S.C. 1977(a)(3), former members under the age of 60 can elect to increase their Veterans' Group Life Insurance coverage by $25,000, up to the existing Servicemembers' Group Life Insurance maximum. The insured's first opportunity to elect to increase coverage is on the one-year Veterans' Group Life Insurance coverage anniversary date. Thereafter, the insured could elect to increase coverage on the five-year anniversary date of the first VGLI coverage increase election opportunity and subsequently every five years from the anniversary date of the insured's last VGLI coverage increase election opportunity. Increases of less than $25,000 are only available when existing Veterans' Group Life Insurance coverage is within less than $25,000 of the Servicemembers' Group Life Insurance maximum and any increases of less than $25,000 must be only in the amount needed to bring the insurance coverage up to the statutory maximum allowable amount of Servicemembers' Group Life Insurance. The eligible former members must apply for the increased coverage through the administrative office, within 120 days of invitation prior to the initial one-year anniversary date or within 120 days prior to each subsequent five-year coverage anniversary date from the first VGLI coverage increase election opportunity. The increased coverage will be effective from the anniversary date immediately following the election.

    [FR Doc. 2018-08855 Filed 4-26-18; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2018-0136; FRL-9976-44—Region 8] Approval and Promulgation of Air Quality Implementation Plans; State of Montana; Revisions to PSD Permitting Rules AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to fully approve the State Implementation Plan (SIP) revision submitted by the State of Montana on October 14, 2016. Montana's October 14, 2016 submittal revises their prevention of significant deterioration (PSD) regulations. This action is being taken under section 110 of the Clean Air Act (CAA) (Act).

    DATES:

    Written comments must be received on or before May 29, 2018.

    ADDRESSES:

    Submit your comments, identified by EPA-R08-OAR-2018-0136 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Leone, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, [email protected]

    I. Background

    In Montana's letter from Governor Steve Bullock to EPA Regional Administrator Shaun McGrath (governor's letter) dated September 21, 2016, Montana referenced two actions for the EPA to consider for approval into Montana's federally approved SIP: (1) Revisions to PSD Permitting Provisions; and (2) Montana's 2015 Revised 8-hour ozone NAAQS initial designations. Montana's 2015 revised 8-hour ozone NAAQS initial designations is not part of Montana's SIP, and therefore does not require action under CAA section 110. In this proposed rulemaking action, the EPA is proposing full approval of Montana's revision to their PSD permitting provisions, and the EPA is taking no action on Montana's 2015 revised 8-hour ozone NAAQS initial designations.

    Montana's October 14, 2016 Submittal

    Section 165(e)(2) of the federal Clean Air Act (CAA) requires a proposed major emitting facility to conduct monitoring for, among other emissions, particulate matter with a diameter of less than 2.5 micrometers (PM2.5).

    On May 16, 2008, EPA promulgated the rule, “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 28321) (the 2008 PM2.5 New Source Review (NSR) Implementation Rule) and on October 20, 2010 EPA promulgated the rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864) (the 2010 Increment Rule). The 2010 Increment Rule adopted regulations setting the SMC for PM2.5 at 4 micrograms per cubic meter averaged over 24 hours. A SMC may be used to exempt sources from preconstruction monitoring when modeled impacts from the proposed facility, or the existing air quality level in the area of the proposed source, is less than the SMC.

    The Board of Environmental Review of the State of Montana (the Board) revised Administrative Rules of Montana (ARM) 17.8.818(7)(a)(iii) to adopt the same SMC for PM2.5 as the federal regulation, effective October 14, 2011 (See docket—MAR Notice No. 17-322.). These revisions, which were submitted to the EPA on August 21, 2012, addressed the requirements of the 2008 PM2.5 NSR Implementation Rule and the 2010 Increment Rule, including setting the SMC for PM2.5 at 4 micrograms per cubic meter, averaged over a 24-hour period. Subsequently, portions of the 2010 Increment rule were vacated by the federal courts (Sierra Club v. EPA, 705 F. 3d 458 (D.C. Cir. 2013)). Among other things, the court vacated the PM2.5 SMC as not allowed by the CAA. On December 9, 2013, the EPA promulgated the rule “Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers—Significant Impact Levels and Significant Monitoring Concentration: Removal of Vacated Elements.” (78 FR 73698). This rulemaking revised the affected NSR-PSD rules accordingly, in which the EPA amended 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to reduce the SMC to 0 micrograms per cubic meter and eliminate the 24-hour averaging period.

    Because the EPA amended its SMC regulations, the Montana Department of Environmental Quality (MDEQ) requested the Board to amend its rule, ARM 17.8.818(7)(a)(iii). However, the MDEQ did not recommend that the Board remove the 24-hour averaging period for the PM2.5 SMC from the rule. On March 24, 2015, Montana submitted SIP revisions to the EPA which addressed the court's decisions (except for removing the 24-hour averaging period); this submittal superseded and replaced these aspects of Montana's August 21, 2012 submittal.

    In response to Montana's March 24, 2015 SIP revisions, on April 20, 2016 (81 FR 23180), the EPA published a final rulemaking titled: “Air Quality State Implementation Plans; Approvals and Promulgations: Montana; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 National Ambient Air Quality Standards.” Under section 110(k)(4) of the CAA, the EPA may conditionally approve a SIP based on a commitment from a state to adopt specific enforceable measures within 1 year from the date of final approval. In the EPA's April 20, 2016 rulemaking, the EPA took final action to approve revisions in the March 24, 2015 submittal to ARM 17.8.818(7)(a)(iii) on the condition that the State adopts and submits specific revisions within 1 year of EPA's final action on these infrastructure submittals; specifically to remove the phrase “24-hour average” in ARM 17.8.818(7)(a)(iii).1 Montana submitted this amendment to their rules to EPA within 1 year, on October 14, 2016, and the EPA is proposing action on Montana's October 14, 2016 submittal in this rulemaking. Upon the EPA finding a timely meeting of Montana's commitment in full, the EPA's April 20, 2016 conditional approval of the SIP revisions would convert to a final approval of Montana's plan. In this action, the EPA proposes that Montana's October 14, 2016 submittal meets Montana's obligation under the conditional approval of ARM 17.8.818(7)(a)(iii) in our April 20, 2016 final rulemaking action.

    1See “Section 128 and 2012 PM2.5 Cover Letter and PSD Commitment Letter” submitted to EPA on December 17, 2015, contained within this docket.

    II. What are the changes that EPA is proposing action to approve?

    We are proposing to approve changes to Montana's SIP—in particular the revisions to ARM 17.8.818(7)(a)(iii)—as submitted on October 14, 2016. We are proposing to approve the changes that are consistent with the CAA and the EPA regulations as follows:

    1. CAA section 110(a)(2)(C), which requires each state plan to include “a program to provide for . . . the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [the NAAQS] are achieved, including a permit program as required in parts C and D of this subchapter”;

    2. CAA section 110(a)(2)(A), requires that SIPs contain enforceable emissions limitations and other control measures. Under section CAA section 110(a)(2), the enforceability requirement in section 110(a)(2)(A) applies to all plans submitted by a state. Montana's regulations in ARM 17.8 create enforceable obligations for sources;

    3. CAA section 110(i) (with certain limited exceptions) prohibits states from modifying SIP requirements for stationary sources except through the SIP revision process. As described in Section I, Montana fulfilled this requirement;

    4. CAA section 110(l), provides that the EPA cannot approve a SIP revision that interferes with any applicable requirement of the Act. The revisions to ARM 17.8.818 would not interfere with sections 110(a)(2) and 110(i) of the Act, as they are in compliance with current federal regulations;

    5. CAA section 161, which requires a SIP to contain emission limitations to prevent significant deterioration of air quality in regions designated as attainment or unclassifiable; and

    6. Montana's SIP revision complies with the requirements of 40 CFR 51.166 as the plan imposes the regulatory requirements on individual sources, as required by the regulatory provisions.

    III. Proposed Action

    The EPA is proposing to approve a revision to Montana's SIP as submitted by the State of Montana on October 14, 2016, which remove “24-hour average” from ARM 17.8.818(7)(a)(iii).

    IV. Incorporation by Reference

    In this action, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing the incorporation by reference of a change to the State of Montana's SIP regarding removing “24-hour average” from ARM 17.8.818(7)(a)(iii). The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely 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 proposed action:

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

    • Is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 13, 2018. Douglas Benevento, Regional Administrator, Region 8.
    [FR Doc. 2018-08624 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2018-0148; FRL-9977-00—Region 8] Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to the Permitting Rules AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of South Dakota on October 4, 2017, related to South Dakota's Air Pollution Control Program. The October 4, 2017 submittal updates certain dates of incorporation by reference and reorganizes and revises certain rules. In this rulemaking, we are proposing action on all portions of the October 4, 2017 submittal, except for those portions of the submittal which do not belong in the SIP. This action is being taken under section 110 of the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before May 29, 2018.

    ADDRESSES:

    Submit your comments, identified by EPA-R08-OAR-2018-0148 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Leone, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. The EPA's Evaluation of South Dakota's Submission—Air Pollution Control Program Chapter 74:36 October 4, 2017 Submittal A. Chapter 74:36:01—Definitions

    Chapter 74:36:01 defines the terms used throughout Article 74:36—Air Pollution Control Program. There are six definitions in Chapter 74:36:01 that reference federal regulations. The sections in Chapter 74:36:01 that are being updated to the version of the federal reference specified in the Code of Federal Regulations (CFR) as of July 1, 2016, involve the following: 74:36:01:01(8); 74:36:01:01(29); 74:36:01:01(67); 74:36:01:05(1); and 74:36:01:20(5), (7) and (8).

    B. Chapter 74:36:02—Ambient Air Quality

    Chapter 74:36:02 established air quality goals and ambient air quality standards for South Dakota. The sections in Chapter 74:36:02 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:02:02; 74:36:02:03; 74:36:02:04; and 74:36:02:05.

    C. Chapter 74:36:03—Air Quality Episodes

    Chapter 74:36:03 identifies the contingency plan the South Dakota Department of Environment and Natural Resources (DENR) will follow during an air pollution emergency episode. The sections in Chapter 74:36:03 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:03:01 and 74:36:03:02.

    D. Chapter 74:36:04—Operating Sources for Minor Sources

    Chapter 74:36:04 is South Dakota's minor source air quality operating permit program. South Dakota is proposing to remove the first two sentences in 74:36:04:04 (Standard of issuance of a minor source operating permit). The removed language refers to air pollution dispersion modeling and other dispersion techniques.

    South Dakota's minor source air quality program initially was both a construction and operating permit program. South Dakota separated the construction portion from the minor source air quality operating permit program in calendar year 2010 by developing an independent construction permit program as outlined in Chapter 74:36:20 (Construction Permits for New Sources or Modifications). On June 27, 2014, the EPA took final action to approve Chapter 74:36:20 (79 FR 36419). The construction permit program in Chapter 74:36:20 identifies the requirements for air pollution dispersion modeling. Therefore, this language is no longer needed in South Dakota's minor air quality operating permit program 74:36:04:04.

    E. Chapter 74:36:05—Operating Sources for Part 70 Sources

    We are not taking action on revisions to this chapter as South Dakota's Title V operating permit programs is not part of the SIP.

    F. Chapter 74:36:06—Regulated Air Pollutant Emissions

    Chapter 74:36:06 identifies South Dakota's regulated air pollutants which are established to ensure South Dakota's air quality is in compliance with the federal national ambient air quality standards (NAAQS). Section 74:36:06:07 (Open burning practices prohibited) references 74:10:05:11.04, which was repealed on January 12, 2012. This section was replaced with 74:12:04:11. Changes are proposed to correct the reference to this section.

    G. Chapter 74:36:07—New Source Performance Standards

    We are not taking action on revisions to this chapter. New Source Performance Standards (NSPS) are not part of the SIP.

    H. Chapter 74:36:08—National Emission Standards for Hazardous Air Pollutants

    We are not taking action on revisions to this chapter. National Emission Standards for Hazardous Air Pollutants (NESHAPs) are not part of the SIP.

    I. Chapter 74:36:09—Prevention of Significant Deterioration (PSD)

    Chapter 74:36:09 is South Dakota's PSD preconstruction program for major sources located in areas of the state that attain the federal NAAQS. The sections in Chapter 74:36:09 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:09:02 and 74:36:09:03.

    In addition, on November 7, 2016, the EPA published a final rulemaking action titled “Rescission of Preconstruction Permits Issued under the Clean Air Act.” (81 FR 78043, see docket) This rulemaking revised 40 CFR 52.21(w). The corresponding changes to 40 CFR 52.21(w) are outlined at 81 FR 78043. South Dakota has revised 74:36:09:02(6) to incorporate by reference the November 7, 2016 changes to 40 CFR 52.21(w).

    Specifically, 81 FR 78043 revised 40 CFR 52.21(w)(2) to remove the July 30, 1987, date restriction; revised 40 CFR 52.21(w)(3) to change the word “shall” to “may” and revised 40 CFR 52.21(w)(1) to appropriately cross reference paragraph (r) and not paragraph (s) of the EPA's PSD regulations.

    J. Chapter 74:36:10—New Source Review

    Chapter 74:36:10 is South Dakota's New Source Review (NSR) preconstruction permit program for major sources in areas of the state that are not attaining the NAAQS. All of South Dakota is in attainment with the federal standards; therefore, there are no facilities that require a preconstruction permit under this program.

    The sections in Chapter 74:36:10 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:10:02; 74:36:10:03.01; 74:36:10:05; 74:36:10:07; and 74:36:10:08.

    K. Chapter 74:36:11—Performance Testing

    Chapter 74:36:11 identifies the performance testing requirements used by permitted facilities to demonstrate compliance with permit limits. The section in Chapter 74:36:11 that is being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involves 74:36:11:01.

    L. Chapter 74:36:12—Control of Visible Emissions

    Chapter 74:36:12 identifies visible emission limits for units that emit air pollution. The sections in Chapter 74:36:12 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:12:01 and 74:36:12:03.

    M. Chapter 74:36:13—Continuous Emission Monitoring Systems

    We are not taking action on revisions to this chapter. Continuous Emission Monitoring Systems are part of South Dakota's Title V program and are not part of the SIP.

    N. Chapter 74:36:16—Acid Rain Program

    We are not taking action on revisions to this chapter. The Acid Rain Program is not part of the SIP.

    O. Chapter 74:36:18—Regulations for State Facilities in the Rapid City Area

    The section in Chapter 74:36:18 that is being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involves 74:36:18:10.

    P. Chapter 74:36:20—Construction Permits for New Sources or Modifications

    Chapter 74:36:20 requires an air quality construction permit for new or modified sources that do not meet the requirements for obtaining a preconstruction permit in Chapters 74:36:09 and 74:36:10.

    The reference date for the federal regulation is proposed to be updated to the most current version of the federal reference specified in the CFR as of July 1, 2016. These proposed changes involve section 74:36:20:05 (Standard for Issuance of a Construction Permit).

    South Dakota is proposing to revise section 74:36:20:05 to clarify that air dispersion modeling for new or modified minor sources is one of several information items that may be required by the department for inclusion in a permit application. This proposed change to the SIP is a clarification and does not modify the standard for issuance of a construction permit's substantive requirements. The standard in Section 74:36:20:05 requires that “[a] construction permit for a new source or modification to an existing source may be issued only if it has been shown that the operation of the new source or modification to an existing source will not prevent or interfere with the attainment or maintenance of an applicable national ambient air quality standard.” Statutory requirements under CAA section 110(l) provide that the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. South Dakota's rules provide for several methods and data (ambient monitoring data, emissions inventories, air dispersion modeling, or a combination of these data in a comprehensive analysis) to make the required determination as to whether a project would interfere with attainment or maintenance of the NAAQS. In addition to requirements in Section 74:36:20:05, Section 74:36:20:07 specifies the required contents of a complete application for a construction permit, and includes “[t]he results of any dispersion modeling required by the department” and “[a]ny other information requested by the department that is relevant to determining compliance with that act or the Clean Air Act.” Therefore, the revisions to 74:36:20:05 will not interfere with any applicable requirement concerning attainment and reasonable further progress with the NAAQS.

    Q. Chapter 74:36:21—Regional Haze Program

    Chapter 74:36:21 contains the requirements South Dakota agreed to as part of the South Dakota Regional Haze Program. The EPA approved sections 74:36:21 through 74:36:21:12 into South Dakota's SIP.

    The sections in Chapter 74:36:21 that are being updated to the version of the federal reference specified in the CFR as of July 1, 2016, involve the following: 74:36:21:02(8); 74:36:21:04; 74:36:21:05; and 74:36:21:09.

    South Dakota has also proposed changes to include that a construction permit for a new major source or modification to a major source will be issued only after the source has demonstrated that it will not contribute to adverse impact on visibility in any mandatory Class I federal area. Changes include guidance for performing air dispersion modeling if air dispersion modeling is required to demonstrate no adverse impact on visibility. These changes are located in section 74:36:21:04 (Visibility Impact Analysis).

    II. What is the EPA proposing to approve? A. What the EPA Is Not Acting On

    The EPA is not acting on revisions to 74:36:05 (Operating Permits for Part 70 Sources), 74:36:07 (New Source Performance Standards), 74:36:08 (National Emission Standards for Hazardous Air Pollutants), 74:36:13 (Continuous Emission Monitoring System) and 74:36:16 (Acid Rain), because these sections are not part of the SIP.

    B. What the EPA Is Acting On

    The EPA is proposing to approve all revisions as submitted by the State of South Dakota on October 4, 2017, as described in section I. of this proposed rulemaking, with the exception of the revisions mentioned in section II. A. of this rulemaking.

    The revisions are in compliance with federal requirements, including: (1) CAA section 110(a)(2)(c), which requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the NAAQS are achieved; (2) The regulatory requirements under 40 CFR 51.160, including section 51.160(b), which requires states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS; and (3) the statutory requirements under CAA section 110(l), which provides that the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.

    III. Incorporation by Reference

    In this action, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing the incorporation by reference of changes to the State of South Dakota's SIP regarding their Air Pollution Control Program in Chapter 74:36. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 19, 2018. Douglas Benevento, Regional Administrator, Region 8.
    [FR Doc. 2018-08676 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R6-OAR-2017-0519; FRL-9977-03—Region 6] Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act, the Environmental Protection Agency (EPA) is proposing to approve revisions to the Texas State Implementation Plan (SIP) submitted by the State of Texas to the EPA on August 23, 2017, that pertain to regulations to control air pollution from visible emissions and particulate matter.

    DATES:

    Written comments should be received on or before May 29, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2017-0519, 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 Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Randy Pitre, (214) 665-7299, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this issue of the Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no 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 on this action should do so at this time.

    For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    Dated: April 19, 2018. Anne Idsal, Regional Administrator, Region 6.
    [FR Doc. 2018-08661 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 272 [EPA-R02-RCRA-2018-0034; FRL-9974-05—Region 2] New York: Incorporation by Reference of State Hazardous Waste Management Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to revise the codification of New York's authorized hazardous waste program which is set forth in the regulations entitled “Approved State Hazardous Waste Management Programs”. EPA will incorporate by reference into the Code of Federal Regulations (CFR) those provisions of the State regulations that are authorized and that EPA will enforce under the Solid Waste Disposal Act, as amended and commonly referred to as the Resource Conservation and Recovery Act (RCRA).

    DATES:

    Send your written comments by May 29, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-RCRA-2018-0034, by one of the following methods:

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

    Email: [email protected]

    Fax: (212) 637-4437.

    Mail: Send written comments to Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA, Region 2, 290 Broadway, 22nd Floor, New York, NY 10007.

    Hand Delivery or Courier: Deliver your comments to Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA, Region 2, 290 Broadway, 22nd Floor, New York, NY 10007. Such deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R02-RCRA-2018-0034. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov, or email. The Federal http://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it inthe body of your comment. If you sendan email comment directly to EPAwithout going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. (For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets).

    Docket: All documents in thedocket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy. You can inspect a copy of the records related to this codification effort at EPA Region 2 by appointment only. To make an appointment please call (212) 637-3703.

    FOR FURTHER INFORMATION CONTACT:

    Nidal Azzam, Base Program Management Section Chief, Hazardous Waste Programs Branch, Clean Air and Sustainability Division, EPA Region 2, 290 Broadway, 22nd floor, New York, NY 10007; telephone number: (212) 637-3748; fax number: (212) 637-4437; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    In the “Rules and Regulations” section of this Federal Register, the EPA is codifying and incorporating by reference the State's hazardous waste program as a direct final rule. EPA did not make a proposal prior to the direct final rule because we believe these actions are not controversial and do not expect comments that oppose them. We have explained the reasons for this codification and incorporation by reference in the preamble to the direct final rule. Unless we get written comments which oppose this incorporation by reference during the comment period, the direct final rule will become effective on the date indicated, and we will not take further action on this proposal. If we get comments that oppose these actions, we will withdraw the direct final rule and it will not take effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time.

    For additional information, please see the direct final rule published in the “Rules and Regulations” section of this Federal Register.

    Dated: December 27, 2017. Peter D. Lopez, Regional Administrator, Region 2. Editorial Note:

    This document was received for publication by the Office of the Federal Register on April 18, 2018.

    [FR Doc. 2018-08429 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
    83 82 Friday, April 27, 2018 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 24, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by May 29, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Animal and Plant Health Inspection Service

    Title: Importation of Eggplant from Israel.

    OMB Control Number: 0579-0350.

    Summary of Collection: Under the Plant and Protection Act (7 U.S.C. 7701), the Secretary of Agriculture is authorized to carry out operation or measures to detect, eradicate, suppress, control, prevent, or retard the spread of plant pests new to the United States not known to be widely distributed throughout the United States. APHIS' fruits and vegetables regulations allow the importation of commercial shipments of fresh eggplant from Israel. As a condition of entry, the eggplant must be grown under a system approach that would include requirements for pest exclusion at the production site, fruit fly trapping inside and outside the production site, and pest-excluding packinghouse procedures.

    Need and Use of the Information: APHIS uses the following information activities to allow for the importation of commercial consignments of fresh eggplant from Israel into the United States while continuing to provide protection against the introduction of quarantine pests: Trapping Records, Labeling of Boxes, Inspection and Approval of Pest-Exclusionary Structures, Phytosanitary Certificates, Grower Registrations, Pest Detection Notification, Treatment Approvals, Emergency Action Notification, and Notice of Arrival. Failure to collect this information would cripple APHIS' ability to ensure that eggplant from Israel is not carrying plant pests.

    Description of Respondents: Foreign Federal Government, Business and other for-profit.

    Number of Respondents: 4.

    Frequency of Responses: Reporting; Third Party Disclosure; Recordkeeping: On occasion.

    Total Burden Hours: 180.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-08927 Filed 4-26-18; 8:45 am] BILLING CODE 3410-34-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Ohio Advisory Committee to the U.S. Commission on Civil Rights 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 Ohio Advisory Committee (Committee) will hold a meeting via web conference on Thursday May 24, 2018, from 4-5 p.m. EDT for the purpose of discussing/approving their advisory memorandum to the Commission on voting rights in the state.

    DATES:

    The meeting will be held on Thursday May 24, 2018, at 4:00 p.m. EDT.

    Public Call Information: (audio only) Dial: 877-874-1588, Conference ID: 7338819.

    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 Office, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at [email protected]. Persons who desire additional information may contact the Regional Programs Unit Office 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, Ohio Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=268). 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 Office at the above email or street address.

    Agenda Welcome and Roll Call Advisory Memorandum: Voting Rights in Ohio Public Comment Adjournment Dated: April 24, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-08953 Filed 4-26-18; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Nevada State Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Nevada Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Pacific Time) Thursday, May 31, 2018, for the purpose of narrowing down the scope of their project on policing.

    DATES:

    The meeting will be held on Thursday, May 31, 2018, at 1:00 p.m. PT.

    Public Call Information: Dial: 888-527-7033, Conference ID: 7669093.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes (DFO) at [email protected] or (213) 894-3437

    SUPPLEMENTARY INFORMATION:

    This meeting is available to the public through the following toll-free call-in number: 888-527-7033, conference ID number: 7669093. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at [email protected]. Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at http://facadatabase.gov/committee/meetings.aspx?cid=261. Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda I. Welcome II. USCCR Announcement III. Discuss Project Scope IV. Discuss Project Timeline V. Public Comment VI. Next Steps VII. Adjournment Dated: April 24, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-08954 Filed 4-26-18; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE U.S. Census Bureau Proposed Information Collection; Comment Request; 2020 Census New Construction Program 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 26, 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]). You may also submit comments, identified by Docket Number USBC-2018-0007, to the Federal e-Rulemaking Portal: http://www.regulations.gov. All comments received are part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personally Identifiable Information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe Portable Document Format (PDF) file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Robin A. Pennington, Decennial Census Management Division Program Management Office, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233 or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Overview

    The 2020 Census New Construction Program is one of the seven (7) voluntary geographic partnership programs that collect residential addresses to update the U.S. Census Bureau's Master Address File (MAF). To deliver questionnaires, locate residences, and tabulate statistics by localities, the Census Bureau must have accurate addresses and boundaries. The Census Bureau also uses its geographic database to link demographic data from surveys and the decennial census to locations and areas, such as cities, congressional and legislative districts, and counties.

    The census block is the geographic building block for all Census Bureau geographic boundaries. Geographic programs such as the Redistricting Data Program update the boundaries of census blocks. The addresses collected in the 2020 Local Update of Census Addresses Operation (LUCA), the New Construction Program, and other geocoding processes place households in a specific census block.

    While the geographic programs differ in requirements, time frame, and participants, the New Construction Program and the other geographic programs all follow the same basic process:

    1. The Census Bureau invites eligible participants to the program.

    2. If they elect to participate in the program, participants receive program materials, in this case, user guides, address templates, spatial data in PDF or shapefile format, and/or free, customized mapping software.

    3. Participants review the materials and submit their addresses in the Census Bureau's predefined format.

    4. The Census Bureau updates its address list with updates from participants.

    5. The Census Bureau uses its address list to conduct the 2020 Census and tabulate statistics.

    II. Abstract

    The Census Bureau is requesting clearance to conduct the New Construction Program from February 2019 through December 2019. The purpose of the New Construction Program is to obtain city-style addresses for newly built housing units in blocks where census questionnaires or mailing packages are delivered and households are expected to use a self-response mode to complete the census.

    The Census Bureau conducts LUCA and the New Construction Program as successive partnership operations to assure the completeness and accuracy of the Census Bureau's address list. These operations allow participating governments the opportunity to provide input to improve the Census Bureau's address list and to ensure accurate and complete enumeration of their communities. LUCA and the New Construction Program are complementary; however, there is no dependency on either program for participation in the other.

    • LUCA participants who agree to receive the address list for their jurisdiction receive Title 13 protected materials. Participants review the address list and submit their validated or revised address list to the Census Bureau between spring and summer 2018.

    • The Census Bureau processes and validates the LUCA updates using a combination of independent address sources, such as the United States Postal Service's list of delivery addresses or the 2020 Census Address Canvassing operation. Upon completion of the LUCA address validations by April of 2019, the Census Bureau provides address-level feedback to partners, allowing them to appeal any determination made by the Census Bureau to the Office of Management and Budget (OMB) LUCA Appeals Office.

    • In spring 2019, the Census Bureau invites tribal, state, and local governments to participate in the New Construction Program. The Census Bureau will provide a list of governments eligible for participation in the New Construction Program by fall 2018. The Census Bureau confines the scope of the New Construction Program to the submission of addresses for newly constructed living quarters that began or will begin construction in the year leading up to the census. The Census Bureau does not provide Title 13 protected materials to the participants of the New Construction Program. Between June and August 2019, tribal, state, and local governments identify addresses for housing units, group quarters, and transitory locations for which construction began during or after March 2019 that are expected to be closed to the elements (final roof, windows, and doors) and potentially inhabitable by Census Day, April 1, 2020. No other updates, including streets or boundaries, will be accepted.

    Through the New Construction Program, the Census Bureau improves the accuracy and completeness of the address list used to conduct the 2020 Census by utilizing the expertise of tribal, state, and local governments. The Census Address List Improvement Act of 1994 (Pub. L. 103-430) strengthened the Census Bureau's partnership capabilities with participating governments by expanding the methods the Census Bureau uses to collect address information from tribal, state, and local governments. The New Construction Program does not provide Title 13 protected addresses to participants, however, when participants submit address data for new housing to be included in the 2020 Census, the Census Bureau will protect the submitted data under Title 13, U.S.C. Section 9 provides for the confidential treatment of census-related information, including individual address and structure coordinates. Participation in the New Construction Program is voluntary.

    The New Construction Program includes four phases:

    1. New Construction Program Invitation Phase.

    2. New Construction Program Participant Review Materials.

    3. New Construction Program Address Updates.

    4. Closeout.

    New Construction Program Invitation Phase

    The Census Bureau will mail the New Construction Program invitation letter and registration form in April 2019 to approximately 32,000 eligible participants that includes federally recognized American Indian tribal governments with reservations and/or off-reservation trust lands, states, and local governments. Based on the 2010 Census New Construction Program, the Census Bureau estimates 6,550 out of the 32,000 invited governments will participate. To participate, interested governments must respond to the invitation package by completing and returning the registration form to the Census Bureau by June 2019. Participants must also identify the format of the maps or spatial data that they wish to receive from the Census Bureau. The estimated time burden for this stage is one hour per participant.

    New Construction Program Participant Review Materials

    During summer 2019, the Census Bureau will deliver review materials to registered governments. Governments will receive the materials they selected on the registration form. Participating governments will be required to submit full address data for qualifying structures, including individual unit numbers for multiunit structures (e.g., Apt. 1, Apt. 2, Unit 1, and Unit 2), and geographic information such as the census tract and block numbers, or geographic coordinates.

    The typical New Construction Program Participant Review Materials package will contain the following:

    1. New Construction Program Quick Start Document.

    2. New Construction Program User Guide.

    3. New Construction Program Address List Template.

    4. Geographic Update Partnership Software (GUPS).

    5. New Construction Program Map PDFs (for geocoding purposes only).

    6. New Construction Program spatial shapefiles (for geocoding purposes only).

    Participants must submit their New Construction Program address list to the Census Bureau within 45 calendar days of receipt of the New Construction Program materials. The New Construction Program addresses must be returned in the Census Bureau's predefined format, and each address must be geocoded or assigned to the census tract and block in which it is located as shown on the New Construction Program PDF or digital (shapefile) maps. This stage will occur between August and September 2019. The average estimated time burden to add, review, and submit the New Construction Program address list to the Census Bureau is 47 hours per participant.

    New Construction Program Address Updates

    From September through November 2019, the Census Bureau will process all files received from participants. Files that are submitted in the proper format and with complete geocoding data are compared against the Census Bureau's census address list, extracted from the MAF, to check for any addresses already on the list. The Census Bureau will add the addresses to the census address list and MAF, if needed, and mail decennial census forms to any participant-supplied addresses that were not already in the census address list. The census enumeration process will determine the final housing unit status and population for each unit.

    Closeout

    The Census Bureau provides a closeout letter to governments that registered to participate and provided updates as well as a thank you letter to governments that provided updates. Closeout occurs between December 2019 and January 2020.

    II. Method of Collection

    The Census Bureau will collect the New Construction Program participants' contact information and product media preference when participants fill out the electronic or printed forms. To prepare and submit their list of new living quarters addresses, the New Construction Program participants can opt to receive:

    • GUPS with Census Bureau spatial data.

    • PDF maps.

    Participants may also use their own software to create a computer-readable list of addresses in the prescribed format. Participants will use the Census Bureau provided maps or spatial data as a reference for assigning census tract and block codes (geocodes) for each submitted address.

    III. Data

    OMB Control Number: 0607-XXXX.

    Form Number(s): NC_RForm_2020.

    Type of Review: Regular submission.

    Affected Public: Federally recognized tribes, states, local governments (counties, incorporated places, functioning minor civil divisions).

    Estimated Number of Respondents:

    Program Invitation: 32,000.

    Participant Material Review: 6,550.

    Estimated Time per Response:

    Program Invitation: 1 hour.

    Participant Material Review: 47 hours.

    Estimated Total Hour Burden:

    Program Invitation: 32,000 hours.

    Participant Material Review: 307,850 hours.

    Estimated Total Annual Burden Hours: 339,850 hours.

    Stage of review Estimated number of respondents Estimated time per response
  • (hours)
  • Total estimated hour burden
    Program Invitation 32,000 1 32,000 Participant Material Review 6,550 47 307,850 Total 339,850 hours.

    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: Voluntary.

    Legal Authority: Title 13, U.S.C., Section 141(a).

    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. 2018-08964 Filed 4-26-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No.: 180301235-8235-01] National Cybersecurity Center of Excellence (NCCoE) Data Integrity Building Block AGENCY:

    National Institute of Standards and Technology, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) invites organizations to provide products and technical expertise to support and demonstrate security platforms for two data integrity projects within the Data Integrity Building Block. The two projects are (1) Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events and (2) Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events. This notice is the initial step for the National Cybersecurity Center of Excellence (NCCoE) in collaborating with technology companies to address cybersecurity challenges identified under the Data Integrity Building Block. Participation in the building block is open to all interested organizations and organizations may participate in one or both data integrity projects.

    DATES:

    Collaborative activities will commence as soon as enough completed and signed letters of interest have been returned to address all the necessary components and capabilities, but no earlier than May 29, 2018.

    ADDRESSES:

    The NCCoE is located at 9700 Great Seneca Highway, Rockville, MD 20850. Letters of interest must be submitted to [email protected] or via hardcopy to National Institute of Standards and Technology, NCCoE; 9700 Great Seneca Highway, Rockville, MD 20850. Organizations whose letters of interest are accepted in accordance with the process set forth in the SUPPLEMENTARY INFORMATION section of this notice will be asked to sign a separate consortium Cooperative Research and Development Agreement (CRADA) with NIST for each Data Integrity Building Block project. An NCCoE consortium CRADA template can be found at: http://nccoe.nist.gov/node/138.

    FOR FURTHER INFORMATION CONTACT:

    Timothy McBride via email to [email protected]; by telephone 301-975-0214; or by mail to National Institute of Standards and Technology, NCCoE; 9700 Great Seneca Highway, Rockville, MD 20850. Additional details about the Data Integrity Building Block are available at https://nccoe.nist.gov/projects/building-blocks/data-integrity.

    SUPPLEMENTARY INFORMATION:

    Interested parties must contact NIST to request a letter of interest template to be completed and submitted to NIST. Letters of interest will be accepted on a first come, first served basis. Parties interested in participating in both data integrity projects must submit a separate letter of interest for each data integrity project. When the building block has been completed, NIST will post a notice announcing the completion of the building block and informing the public that it will no longer accept letters of interest for this building block on the NCCoE Data Integrity Building Block website at https://nccoe.nist.gov/projects/building-blocks/data-integrity/identify-protect for Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events, and at https://nccoe.nist.gov/projects/building-blocks/data-integrity/detect-respond for Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events.

    Background: The NCCoE, part of NIST, is a public-private collaboration for accelerating the widespread adoption of integrated cybersecurity tools and technologies. The NCCoE brings together experts from industry, government, and academia under one roof to develop practical, interoperable cybersecurity approaches that address the real-world needs of complex Information Technology (IT) systems. By accelerating dissemination and use of these integrated tools and technologies for protecting IT assets, the NCCoE will enhance trust in U.S. IT communications, data, and storage systems; reduce risk for companies and individuals using IT systems; and encourage development of innovative, job-creating cybersecurity products and services.

    Process: NIST is soliciting responses from all sources of relevant security capabilities (see below) to enter into a Cooperative Research and Development Agreement (CRADA) to provide products and technical expertise to support and demonstrate security platforms for the Data Integrity Building Block. The full building block can be viewed at: https://nccoe.nist.gov/projects/building-blocks/data-integrity.

    Interested parties should contact NIST using the information provided in the FOR FURTHER INFORMATION CONTACT section of this notice. NIST will then provide each interested party with a letter of interest template, which the party must complete, certify that it is accurate, and submit to NIST. NIST will contact interested parties if there are questions regarding the responsiveness of the letters of interest to the building block objective or requirements identified below. NIST will select participants who have submitted complete letters of interest on a first come, first served basis within each category of product components or capabilities listed below up to the number of participants in each category necessary to carry out this building block. However, there may be continuing opportunity to participate even after initial activity commences. Selected participants will be required to enter into a consortium CRADA with NIST (for reference, see ADDRESSES section above). NIST published a notice in the Federal Register on October 19, 2012 (77 FR 64314) inviting U.S. companies to enter into National Cybersecurity Excellence Partnerships (NCEPs) in furtherance of the NCCoE. For this demonstration project, NCEP partners will not be given priority for participation.

    Building Block Objective: Establish tools and procedures to defend, detect, and respond to data integrity events.

    A detailed description of the Data Integrity Building Block is available at: https://nccoe.nist.gov/projects/building-blocks/data-integrity.

    Requirements: Each responding organization's letter of interest should identify which security platform component(s) or capability(ies) it is offering. Responding organizations must submit a separate letter of interest and sign a separate consortium CRADA for each project the responding organization is interested in joining. Letters of interest should not include company proprietary information, and all components and capabilities must be commercially available. Components are listed in section 3 of each of the data integrity projects (1) Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events, and (2) Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events (for reference, please see the link in the PROCESS section above) and include, but are not limited to:

    • For Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events: • Secure storage • File integrity checking mechanisms backup capability for databases, VMs, and file systems • Vulnerability management and identification software • Signature based vulnerability detection • Behavior based vulnerability detection • Zero-day vulnerability detection • Log collection software • Asset inventory software • Asset management • Asset discovery • Maintenance software (including software versioning and distribution technology) • Software versioning • Software distribution • Update verification • For Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events • Integrity monitoring • Event detection • Malicious software detection • Unauthorized activity detection • Anomalous activity detection • Logging and data correlation software • Reporting capability • Vulnerability management • Forensics/analytics tools • Mitigation and containment software

    Each responding organization's letter of interest should identify how their products address one or more of the following desired solution characteristics in section 3 of each of the Data Integrity projects (1) Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events, and (2) Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events (for reference, please see the link in the PROCESS section above):

    1 For Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events: • Inventory assets both part of the enterprise and the solution itself • Be secure against integrity attacks against hosts • Be secure against integrity attacks that occur on the network • Support secure backups • Provide protected network and remote access • Provide audit capabilities 2 For Data Integrity: Detecting and Responding to Ransomware and Other Destructive Events: • Detect unauthorized or malicious activity on the network • Detect unauthorized or malicious mobile code (such as web technologies like JavaScript, VBScript, and other code executed but loaded from an external site) • Detect unauthorized or malicious executables • Detect unauthorized or malicious behavior • Report unauthorized or malicious activity on the network • Report unauthorized or malicious mobile code events • Report unauthorized or malicious executables • Report unauthorized or malicious behavior • Analyze the impact of unauthorized or malicious activity on the network • Analyze the impact of unauthorized or malicious mobile code events • Analyze the impact of unauthorized or malicious executables • Analyze the impact of unauthorized or malicious behavior • Mitigate the impact of unauthorized or malicious activity on the network • Mitigate the impact of unauthorized or malicious mobile code events • Mitigate the impact of unauthorized or malicious executables • Mitigate the impact of unauthorized or malicious behavior • Contain unauthorized or malicious activity on the network • Contain unauthorized or malicious mobile code events • Contain unauthorized or malicious executables • Contain unauthorized or malicious behavior

    Responding organizations need to understand and, in their letters of interest, commit to provide:

    1. Access for all participants' project teams to component interfaces and the organization's experts necessary to make functional connections among security platform components 2. Support for development and demonstration of the Data Integrity Building Block in NCCoE facilities which will be conducted in a manner consistent with the following standards and guidance: FIPS 200, FIPS 201 (for the Data Integrity: Identifying and Protecting Assets Against Ransomware and Other Destructive Events Project), SP 800-53, FIPS 140-2, SP 800-37, SP 800-57, SP 800-61, SP 800-83, SP 800-150, SP 800-160, and SP 800-184.

    Additional details about the Data Integrity Building Block are available at: https://nccoe.nist.gov/projects/building-blocks/data-integrity.

    NIST cannot guarantee that all of the products proposed by respondents will be used in the demonstration. Each prospective participant will be expected to work collaboratively with NIST staff and other project participants under the terms of the consortium CRADA in the development of the Data Integrity Building Block. Prospective participants' contribution to the collaborative effort will include assistance in establishing the necessary interface functionality, connection and set-up capabilities and procedures, demonstration harnesses, environmental and safety conditions for use, integrated platform user instructions, and demonstration plans and scripts necessary to demonstrate the desired capabilities. Each participant will train NIST personnel, as necessary, to operate its product in capability demonstrations. Following successful demonstrations, NIST will publish a description of the security platform and its performance characteristics sufficient to permit other organizations to develop and deploy security platforms that meet the security objectives of the Data Integrity Building Block. These descriptions will be public information.

    Under the terms of the consortium CRADA, NIST will support development of interfaces among participants' products by providing IT infrastructure, laboratory facilities, office facilities, collaboration facilities, and staff support to component composition, security platform documentation, and demonstration activities.

    The dates of the demonstration of the Data Integrity Building Block capability will be announced on the NCCoE website at least two weeks in advance at http://nccoe.nist.gov/. The expected outcome of the demonstration is to improve data integrity within the enterprise. Participating organizations will gain from the knowledge that their products are interoperable with other participants' offerings.

    For additional information on the NCCoE governance, business processes, and NCCoE operational structure, visit the NCCoE website http://nccoe.nist.gov/.

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-08829 Filed 4-26-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration (NOAA) National Sea Grant Advisory Board (NSGAB); Public Meeting of the National Sea Grant Advisory Board AGENCY:

    Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the NSGAB. NSGAB members will discuss and provide advice on the National Sea Grant College Program (Sea Grant), specifically to review and approve the 2018 Biennial Report to Congress, and any other matters as described in the agenda found on the Sea Grant website at http://seagrant.noaa.gov/WhoWeAre/Leadership/NationalSeaGrantAdvisoryBoard/UpcomingAdvisoryBoardMeetings.aspx.

    DATES:

    The announced meeting is scheduled for Monday, May 14, 2018, from 3:00 p.m. to 4:30 p.m. ET.

    ADDRESSES:

    The meeting will be held via conference call and webinar. Public access is available at 1315 East-West Highway, Bldg.3, Room #01303, Silver Spring, MD 20910. In order to attend in person or via conference call/webinar, please R.S.V.P to Donna Brown (contact information below) by Friday, May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For any questions concerning the meeting, please contact Ms. Donna Brown, National Sea Grant College Program, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 11717, Silver Spring, Maryland, 20910, 301-734-1088 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Status: The meeting will be open to public participation with a 10-minute public comment period on Monday, May 14, 2018 at 4:10 p.m. ET. (check agenda using link in the Summary section to confirm time.)

    The NSGAB expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of three (3) minutes. Written comments should be received by Ms. Donna Brown by Monday, May 7, 2018 to provide sufficient time for NSGAB review. Written comments received after the deadline will be distributed to the NSGAB, but may not be reviewed prior to the meeting date. Seats will be available on a first-come, first-serve basis.

    Special Accommodations: These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Donna Brown by Friday, May 4, 2018. The NSGAB, which consists of a balanced representation from academia, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Pub. L. 94-461, 33 U.S.C. 1128). The NSGAB advises the Secretary of Commerce and the Director of Sea Grant with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice.

    Dated: April 19, 2018. David Holst, Chief Financial Officer/Administrative Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration.
    [FR Doc. 2018-08931 Filed 4-26-18; 8:45 am] BILLING CODE 3510-KA-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG041 Programmatic Environmental Impact Statement for the Marine Mammal Health and Stranding Response Program AGENCY:

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

    ACTION:

    Notice of intent to prepare a Programmatic Environmental Impact Statement (PEIS); request for comments; correction.

    SUMMARY:

    This notice contains corrections to the scoping meeting times published on April 2, 2018, in the DATES section of a notice of intent for the Marine Mammal Health and Stranding Response Program (MMHSRP) to prepare a PEIS. This action is necessary to correct an error in the times of the in-person scoping meeting and webinars published in the Federal Register.

    DATES:

    This correction is applicable as of April 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Manley, NMFS, Office of Protected Resources, 301-427-8402, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    A notice of intent for the MMHSRP to prepare a PEIS published on April 2, 2018 (83 FR 13955). This correction replaces the meeting times in the notice.

    Need for Correction

    As published, in the DATES section, on page 13956 of the Federal Register, the times of the in-person scoping meeting on May 18, 2018, and scoping webinar on May 21, 2018, were incorrect. This correction does not change NMFS' intent to prepare a PEIS for the MMHSRP. The correct dates and times of the public scoping meeting and webinars are as follows:

    DATES: Comments must be received by June 1, 2018. Those wishing to attend either the webinars or in-person meeting must register at https://mmhsrp-peis.eventbrite.com. Scoping meetings are scheduled as follows: 1. May 1, 2018, 3 p.m. EDT—Webinar (Registration Required) 2. May 15, 2018, 3:30 p.m. EDT—Webinar (Registration Required) 3. May 18, 2018, 10:30 a.m. EDT—(valid ID compliant with the REAL ID Act required)—NOAA Science Center, 1301 East West Highway, Silver Spring, MD 4. May 21, 2018, 3:00 p.m. EDT—Webinar (Registration Required) Dated: April 24, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-08892 Filed 4-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG132 Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to the South Basin Improvements Project at the San Francisco Ferry Terminal AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the San Francisco Bay Area Water Emergency Transportation Authority (WETA) for authorization to take marine mammals incidental to Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project in San Francisco, California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than May 29, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An 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 takings 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

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

    We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On January 22, 2018, NMFS received a request from WETA for an IHA to take marine mammals incidental to expansion and improvements at the downtown San Francisco ferry terminal. The application was determined to be adequate and complete on April 10, 2018. WETA's request is for take of seven species of marine mammals by Level B harassment only. This authorization would be valid from June 1, 2018 to May 31, 2019. Neither WETA nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS previously issued an IHA to WETA for similar work (82 FR 29521, June 29, 2017). WETA complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHA and information regarding their monitoring results may be found in the “Estimated Take” section.

    Description of Proposed Activity Overview

    WETA is proposing to expand berthing capacity at the Downtown San Francisco Ferry Terminal, located at the San Francisco Ferry Building, to support existing and future planned water transit services operated on San Francisco Bay by WETA and WETA's emergency operations.

    The Downtown San Francisco Ferry Terminal Expansion Project would eventually include phased construction of three new water transit gates and overwater berthing facilities, in addition to supportive landside improvements, such as additional passenger waiting and queueing areas, circulation improvements, and other water transit-related amenities. The new gates and other improvements would be designed to accommodate future planned water transit services between Downtown San Francisco and Antioch, Berkeley, Martinez, Hercules, Redwood City, Richmond, and Treasure Island, as well as emergency operation needs. According to current planning and operating assumptions, WETA will not require all three new gates (Gates A, F, and G) to support existing and new services immediately. As a result, WETA is planning that project construction will be phased. The first phase will include construction of Gates F and G, as well as other related improvements in the South Basin.

    Dates and Duration

    In-water construction activities (i.e., pile driving) will be scheduled to be completed during the authorized work window for construction in San Francisco Bay established by the Long-Term Management Strategy. In the project area, the authorized in-water work window is June 1 through November 30. WETA estimates the project may take up to 41 days of activity within the in-water work window. This proposed authorization would be valid from June 1, 2018 through May 31, 2019.

    Specific Geographic Region

    The San Francisco ferry terminal is located in the western shore of San Francisco Bay (see Figure 1 of WETA's application). The ferry terminal is five blocks north of the San Francisco-Oakland Bay Bridge (Bay Bridge). More specifically, the South Basin of the terminal is located between Pier 14 and the ferry plaza. San Francisco Bay and the adjacent Sacramento-San Joaquin Delta make up one of the largest estuarine systems on the continent. The Bay has undergone extensive industrialization, but remains an important environment for healthy marine mammal populations year round. The area surrounding the proposed activity is an intertidal landscape with heavy industrial use and boat traffic.

    Detailed Description of Specific Activity

    The project supports existing and future planned water transit services operated by WETA and regional policies to encourage transit uses. Furthermore, the project addresses deficiencies in the transportation network that impede water transit operation, passenger access, and passenger circulation at the Ferry Terminal.

    The project will accommodate the existing and future planned water transit service outlined in WETA's Implementation and Operations Plan for the San Francisco Bay Area. The addition of two new gates will accommodate an expansion of WETA services from 5,100 to 19,160 passengers per weekday by the year 2035; and an increase in peak-period WETA vessel arrivals from 14 to approximately 30. In addition to regularly scheduled ferry transit, facility improvements would allow for increased capacity for emergency use. With the improvements in place, WETA will have the capacity to evacuate approximately 7,200 passengers per hour from its four gates.

    The new gates (Gates F and G) will be built similarly. Each gate will be designed with an entrance portal—a prominent doorway providing passenger information and physically separating the berthing structures from the surrounding area. The entrance portal will also contain doors, which can be secured.

    Berthing structures will be provided for each new gate, consisting of floats, gangways, and guide piles. Figure 3 of WETA's application depicts a simulated view of the proposed berthing structures. The steel floats will be approximately 42 feet (ft) wide by 135 ft long. The steel truss gangways will be approximately 14 ft wide and 105 ft long. The gangway will be designed to rise and fall with tidal variations while meeting Americans with Disabilities Act (ADA) requirements. The gangway and the float will be designed with canopies, consistent with the current design of Gates B and E. The berthing structures will be fabricated offsite and floated to the project area by barge.

    Six steel guide piles will be required to secure each float in place. In addition, dolphin piles may be used at each berthing structure to protect against the collision of vessels with other structures or vessels. A total of up to 14 dolphin piles may be installed, consisting of ten new dolphin piles and four relocated dolphin piles.

    Chock-block fendering will be added along the East Bayside Promenade, to adjacent structures to prevent collision. The chock-block fendering will consist of square, 12-inch-wide, polyurethane-coated, pressure-treated wood blocks that are connected along the side of the adjacent pier structure, and supported by polyurethane-coated, pressure-treated wood piles.

    In addition, the existing Gate E float will be moved 43 ft to the east, to align with the new gates and the East Bayside Promenade. The existing six 36-inch (in) diameter steel guide piles will be removed using vibratory extraction, and reinstalled to secure the Gate E float in place. Because of Gate E's new location, to meet ADA requirements, the existing 90 ft steel truss gangway will be replaced with a longer, 105 ft gangway.

    Table 1—Summary of Pile Installation Project element Pile diameter
  • (in)
  • Pile length
  • (ft)
  • Number of piles Schedule
  • (days)
  • Embarcadero Plaza, East Bayside Promenade, and Interim Access Structure 30 135 to 155 18 Up to 9. Embarcadero Plaza, East Bayside Promenade, and Interim Access Structure 24 135 to 155 30 Up to 15. Gates E, F, and G Dolphin Piles 36 145 to 155 10 (two at each of the floats for protection, two between each of the floats) Up to 5. Gate F and G Guide Piles 36 140 to 150 12 (six per gate) Up to 6. Gate E Guide Piles 36 145 to 155 6 Up to 3. Barrier Piles near Pier 14 24 135 to 155 5 Up to 3. Total 81 piles 41.

    Construction of the project improvements requires pile driving. Pile driving for the project includes impact or vibratory pile driving associated with construction of the berthing structures, the Embarcadero Plaza, and East Bayside Promenade. Much of the pile driving associated with the project was completed in 2017 and was covered under a previous IHA. All pile driving completed in 2017 was vibratory; no impact pile driving was conducted. The pile sizes and numbers that will be driven in 2018 are detailed in Table 1. Pile driving will occur during daylight hours only and one hammer will be used at a time. Vibratory driving may install up to four piles per day and impact driving may install up to three piles per day but a conservative estimate of two piles per day is used to estimate the duration of the project. Vibratory driving of 24-in and 30-in piles may take up to 15 minutes per pile while vibratory driving of 36-in piles may take up to 20 minutes per pile. Piles driven with an impact hammer will require an estimated 1800 strikes per pile, regardless of pile size. Underwater sound and acoustic pressure resulting from pile driving could affect marine mammals by causing behavioral avoidance of the construction area, and/or injury to sensitive species.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of Specified Activities

    Sections 4 and 5 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.fisheries.noaa.gov/find-species).

    Table 2 lists all species with expected potential for occurrence near downtown San Francisco and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2016 SARs (Caretta et al., 2017). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2016 SARs (Caretta et al., 2017).

    Table 2—Marine Mammals in the Vicinity of Downtown San Francisco Common name Scientific name Stock ESA/MMPA status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin, most recent
  • abundance survey) 2
  • PBR Annual
  • M/SI 3
  • Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale Eschrichtius robustus Eastern North Pacific -/-; N 20,990 (0.05, 20,125, 2011) 624 132 Family Balaenopteridae (rorquals) Humpback whale Megaptera novaeangliae California/Oregon/Washington E/D; Y 1,918 (0.03, 1,876, 2014) 11 >6.5 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Bottlenose dolphin Tursiops truncatus California Coastal -/-; N 453 (0.06, 346, 2011) 2.7 >2 Family Phocoenidae (porpoises) Harbor porpoise Phocoena phocoena San Francisco-Russian River -/-; N 9,886 (0.51, 6,625, 2011) 66 0 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion Zalophus californianus U.S. -/-; N 296,750 (n/a, 153,337, 2011) 9,200 389 Northern fur seal Callorhinus ursinus California -/-; N 14,050 (n/a, 7,524, 2013) 451 1.8 Guadalupe fur seal Arctocephalus townsendi Mexico to California T/D; Y 20,000 (n/a, 15,830, 2010) 542 >3.2 Family Phocidae (earless seals) Pacific harbor seal Phoca vitulina richardii California -/-; N 30,968 (n/a, 27,348, 2012) 1,641 43 Northern elephant seal Mirounga angustirostris California Breeding -/-; N 179,000 (n/a, 81,368, 2010) 4,882 8.8 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. Note—Italicized species are not expected to be taken or proposed for authorization.

    All species that could potentially occur in the proposed survey areas are included in Table 2. However, the temporal and/or spatial occurrence of humpback whales and Guadalupe fur seals is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Humpback whales are rare visitors to the interior of San Francisco Bay. A recent, seasonal influx of humpback whales inside San Francisco Bay near the Golden Gate was recorded from April to November in 2016 and 2017 (Keener 2017). The Golden Gate is outside of this project's action area and humpback whales are not expected to be present during the project. Guadalupe fur seals occasionally range into the waters of Northern California and the Pacific Northwest. The Farallon Islands (off central California) and Channel Islands (off southern California) are used as haulouts during these movements (Simon 2016). Juvenile Guadalupe fur seals occasionally strand in the vicinity of San Francisco, especially during El Niño events. Most strandings along the California coast are animals younger than two years old, with evidence of malnutrition (NMFS 2017c). In the rare event that a Guadalupe fur seal is detected within the Level A or Level B harassment zones, work will cease until the animal has left the area (see “Proposed Mitigation”).

    Gray Whale

    Gray whales are large baleen whales. They grow to approximately 50 ft in length and weigh up to 40 tons. They are one of the most frequently seen whales along the California coast, easily recognized by their mottled gray color and lack of dorsal fin. Adult whales carry heavy loads of attached barnacles, which add to their mottled appearance. Gray whales are divided into the Eastern North Pacific and Western North Pacific stocks. Both stocks migrate each year along the west coast of continental North America and Alaska. The Eastern North Pacific stock is much larger and is more likely to occur in the San Francisco Bay area. With the exception of an unusual mortality event in 1999 and 2000, the population of Eastern North Pacific stock has increased over the last 20 years and has been stable since the 1990s (NMFS 2015c).

    Gray whales are the only baleen whale known to feed on the sea floor, where they scoop up bottom sediments to filter out benthic crustaceans, mollusks, and worms (NMFS 2015c). They feed in northern waters primarily off the Bering, Chukchi, and western Beaufort Seas during the summer. Between December and January, late-stage pregnant females, adult males, and immature females and males migrate southward to breeding areas around Mexico. The northward migration occurs between February and March. Coastal waters just outside San Francisco Bay are considered a migratory Biological Important Area for the northward progression of gray whales (Calambokidis et al., 2015). During this time, recently pregnant females, adult males, immature females, and females with calves move north to the feeding grounds (Calambokidis et al., 2014). A few individuals enter into the San Francisco Bay during their northward migration. Some gray whales summer along the west coast of North America to forage and are additionally defined as the Pacific Coast Feeding Group. This group is separately monitored between June 1 and November 1 between northern California and northern British Columbia by the International Whaling Commission (IWC 2012; Calambokidis et al., 2015). The Pacific Coast Feeding Group has increased in abundance estimates since the 1990s and has been stable since 2003 (Calambokidis et al., 2014).

    Bottlenose Dolphin

    Since the 1982-83 El Niño, which increased water temperatures off California, bottlenose dolphins have been consistently sighted along the central California coast (NMFS 2017b). The northern limit of their regular range is currently the Pacific coast off San Francisco and Marin Country and they occasionally enter San Francisco Bay, sometimes foraging for fish in Fort Point Cove, just inside the Golden Gate Bridge. The California Coastal Stock is frequently seen in nearshore waters (NMFS 2017b). Members of the California Coastal stock are transient and make movements up and down the coast into some estuaries, throughout the year.

    Harbor Porpoise

    Harbor porpoises generally occur in groups of two to five individuals and are considered to be shy, relatively nonsocial animals. The harbor porpoise has a small body, with a short beak and medium-sized dorsal fin. They can grow to approximately 5 ft and 170 pounds. Distribution of harbor porpoises is discontinuous due to a habitat preference of continental shelf waters. Harbor porpoises are typically found in waters less than 250 ft deep along the coast and in bays, estuaries, and harbors. Their prey consists of demersal and benthic species, such as schooling fish and cephalopods (NMFS 2014).

    California Sea Lion

    California sea lions are sexually dimorphic eared seals (family Otariidae). Males can reach up to 8 ft long and weigh 700 pounds whereas females are smaller, approximately 6 ft long and 200 pounds. California sea lions breed in southern California and along the Channel Islands during the spring. Although most females remain in southern California waters year-round, males and some subadult females range widely and occupy protected embayments like San Francisco Bay throughout the year (Caltrans 2012). Pupping does not occur in San Francisco Bay. They are extremely intelligent and social, and spend much of their time aggregated at communal haulouts. Group hunting is common and they may cooperate with other species, such as dolphins, when hunting large schools of fish. California sea lions feed on a variety of fish and squid species (NMFS 2015b).

    During El Niño events, there is an increase in pup and juvenile mortality, which in turn affects future age and sex classes. Additionally, because there are fewer females present in the population after such events, pup production is further limited. Declines in pup production observed in 2000 and 2003 can be attributed in part to previous El Niño events, which affected the number of reproductive females in the population, and in part to domoic poisoning and an infestation of hook worms, which caused an increase in pup mortality (NMFS 2017a). There was an unusual mortality event declared in 2013 due to a high number of strandings with reasons unknown, but hypothesized to be associated with low forage fish availability close to pupping areas (NMFS 2015b). Despite intermittent years of increased pup mortality, statistical analyses of pup counts between 1975 and 2011 determined an approximate 5.4 percent annual increase between 1975 and 2008 (NMFS 2017a).

    Although there is little information regarding the foraging behavior of the California sea lion in the San Francisco Bay, they have been observed foraging on a regular basis in the shipping channel south of Yerba Buena Island. Foraging grounds have also been identified for pinnipeds, including sea lions, between Yerba Buena Island and Treasure Island, as well as off the Tiburon Peninsula (Caltrans 2001). California sea lions in the San Francisco Bay may be feeding on Pacific herring (Clupea harengus pallasii), northern anchovy (Engraulis mordax), or other prey species (Caltrans 2013).

    Northern Fur Seal

    The range of the northern fur seal extends from southern California, north to the Bering Sea and west to the Okhotsk Sea and Honshu Island, Japan (NMFS 2015e). There are two stocks of northern fur seal, the California stock and the Eastern Pacific stock. The Eastern Pacific stock is listed as strategic and depleted under the MMPA but the California stock is not (NMFS 2015e). Both the Eastern Pacific and California stocks forage in offshore waters outside San Francisco Bay. During the breeding season, the majority of the worldwide population is found on the Pribilof Islands in the Southern Bering Sea, with the remaining animals spread throughout the North Pacific Ocean. On the coast of California, small breeding colonies are present at San Miguel Island off southern California and the Farallon Islands off central California (NMFS 2015e). Northern fur seals are a pelagic species and are rarely seen near the shore away from breeding areas.

    Harbor Seal

    The Pacific harbor seal is one of five subspecies of Phoca vitulina, or the common harbor seal. They are a true seal, with a rounded head and visible ear canal. Males and females are similar in size and can exceed 6 ft and 300 pounds. Harbor seals generally do not migrate annually. They display year-round site fidelity, although they have been known to swim several hundred miles to find food or suitable breeding habitat.

    Harbor seals have the broadest range of any pinniped, inhabiting both the Atlantic and Pacific oceans. In the Pacific, they are found in nearshore coastal and estuarine habitats form Baja California to Alaska, and from Russia to Japan. Of the three recognized populations of harbor seals along the west coast of the continental U.S., the California stock occurs in California coastal waters.

    Harbor seals forage in shallow waters on a variety of fish and crustaceans that are present throughout San Francisco Bay, and therefore could occasionally be found foraging in the action area. They are opportunistic, general foragers (Gibble 2011). In San Francisco Bay, harbor seals forage in shallow, intertidal waters on a variety of fish, crustaceans, and a few cephalopods. The most numerous prey items identified in harbor seal fecal samples from haulouts in San Francisco Bay include yellow fin goby (Acanthogobius flavimanus), northern anchovy, Pacific herring, staghorn sculpin (Leptocottus armatus), plainfin midshipman (Porichthys notatus), and white croaker (Genyonemus lineatas) (Harvey and Torok 1994).

    Although solitary in the water, harbor seals come ashore at haulouts to rest, socialize, breed, nurse, molt, and thermoregulate. Habitats used as haulout sites include tidal rocks, bayflats, sandbars, and sandy beaches (Zeiner et al., 1990). Haulout sites are relatively consistent from year to year (Kopec and Harvey 1995) and females have been recorded returning to their own natal haulout to breed (Cunningham et al., 2009). Although harbor seals haul out at approximately 20 locations around San Francisco Bay, there are three primary sites: Mowry Slough in the South Bay, Corte Madera Marsh and Castro Rocks in the North Bay, and Yerba Buena Island in the Central Bay (Grigg 2008; Gibble 2011). Yerba Buena Island is the closest haulout to the project, located approximately 1.5 miles from the project location. Harbor seals use Yerba Buena Island year-round, with the largest numbers seen during winter months, when Pacific herring spawn (Grigg 2008). During marine mammal monitoring for construction of the new Bay Bridge, harbor seal counts at Yerba Buena Island ranged from zero to a maximum of 188 individuals (Caltrans 2012). Higher numbers may occur during molting and breeding seasons.

    Northern Elephant Seal

    Northern elephant seals are common on California coastal mainland and island sites where they pup, breed, rest, and molt. The largest rookeries are on San Nicolas and San Miguel Islands in the Northern Channel Islands. In the vicinity of San Francisco, elephant seals breed, molt, and haul out at Año Nuevo Island, the Farallon Islands, and Point Reyes National Seashore (Lowry et al., 2014). Both sexes make two foraging migrations each year, one after breeding and the second after molting (Stewart and DeLong 1995). Adults reside in offshore pelagic waters when not breeding or molting. Northern elephant seals haul out to give birth and breed from December through March, and pups remain onshore or in adjacent shallow water through May, when they may occasionally make brief stops in San Francisco Bay (Caltrans 2015b).

    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 decibels (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 hertz (Hz) and 35 kilohertz (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;

    Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz; and

    Pinnipeds in water; 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. Seven marine mammal species (three cetacean and four pinniped (two otariid and two phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, one is classified as a low-frequency cetacean (gray whale), one is classified as a mid-frequency cetacean (bottlenose dolphin), and one is classified as a high-frequency cetacean (harbor porpoise).

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in Hz or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the dB scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 µPa and all airborne sound levels in this document are referenced to a pressure of 20 µPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

    Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions;

    Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times;

    Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz; and

    Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the SLs (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    The underwater acoustic environment at the ferry terminal is likely to be dominated by noise from day-to-day port and vessel activities. This is a highly industrialized area with high-use from small- to medium-sized vessels, and larger vessel that use the nearby major shipping channel. Underwater sound levels for water transit vessels, which operate throughout the day from the San Francisco Ferry Building ranged from 152 dB to 177 dB (WETA 2003a). While there are no current measurements of ambient noise levels at the ferry terminal, it is likely that levels within the basin periodically exceed the 120 dB threshold and, therefore, that the high levels of anthropogenic activity in the basin create an environment far different from quieter habitats where behavioral reactions to sounds around the 120 dB threshold have been observed (e.g., Malme et al., 1984, 1988).

    In-water construction activities associated with this project would include impact and vibratory pile driving. The sounds produced by these activities fall into one of two general sound types: Pulsed and non-pulsed (defined in the following section). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts.

    Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI 1995; NIOSH 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman et al., 2009). Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (Nedwell and Edwards 2002; Carlson et al., 2005).

    Acoustic Impacts

    Please refer to the information given previously (Description of Sound Sources) regarding sound, characteristics of sound types, and metrics used in this document. Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound from active acoustic sources can potentially result in one or more of the following; temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007; Gotz et al., 2009). The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure. In general, sudden, high level sounds can cause hearing loss, as can longer exposures to lower level sounds. Temporary or permanent loss of hearing will occur almost exclusively for noise within an animal's hearing range. We first describe specific manifestations of acoustic effects before providing discussion specific to WETA's construction activities.

    Richardson et al. (1995) described zones of increasing intensity of effect that might be expected to occur, in relation to distance from a source and assuming that the signal is within an animal's hearing range. First is the area within which the acoustic signal would be audible (potentially perceived) to the animal, but not strong enough to elicit any overt behavioral or physiological response. The next zone corresponds with the area where the signal is audible to the animal and of sufficient intensity to elicit behavioral or physiological responsiveness. Third is a zone within which, for signals of high intensity, the received level is sufficient to potentially cause discomfort or tissue damage to auditory or other systems. Overlaying these zones to a certain extent is the area within which masking (i.e., when a sound interferes with or masks the ability of an animal to detect a signal of interest that is above the absolute hearing threshold) may occur; the masking zone may be highly variable in size.

    We describe the more severe effects (i.e., permanent hearing impairment, certain non-auditory physical or physiological effects) only briefly as we do not expect that there is a reasonable likelihood that WETA's activities may result in such effects (see below for further discussion). Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005b). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Repeated sound exposure that leads to TTS could cause PTS. In severe cases of PTS, there can be total or partial deafness, while in most cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985).

    When PTS occurs, there is physical damage to the sound receptors in the ear (i.e., tissue damage), whereas TTS represents primarily tissue fatigue and is reversible (Southall et al., 2007). In addition, other investigators have suggested that TTS is within the normal bounds of physiological variability and tolerance and does not represent physical injury (e.g., Ward 1997). Therefore, NMFS does not consider TTS to constitute auditory injury.

    Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak et al., 2008)—but are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several dB above a 40-dB threshold shift approximates PTS onset; e.g., Kryter et al., 1966; Miller 1974) that inducing mild TTS (a 6-dB TS approximates TTS onset; e.g., Southall et al., 2007). Based on data from terrestrial mammals, a precautionary assumption is that the PTS thresholds for impulse sounds (such as impact pile driving pulses as received close to the source) are at least 6 dB higher than the TTS threshold on a peak-pressure basis and PTS cumulative sound exposure level thresholds are 15 to 20 dB higher than TTS cumulative sound exposure level thresholds (Southall et al., 2007). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

    Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions (e.g., change in dive profile as a result of an avoidance reaction) caused by exposure to sound include neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack 2007). WETA's activities do not involve the use of devices such as explosives or mid-frequency active sonar that are associated with these types of effects.

    Temporary threshold shift—TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.

    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. 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.

    Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale [Delphinapterus leucas], harbor porpoise, and Yangtze finless porpoise [Neophocoena asiaeorientalis]) and three species of pinnipeds (northern elephant seal, harbor seal, and California sea lion) exposed to a limited number of sound sources (i.e., mostly tones and octave-band noise) in laboratory settings (e.g., Finneran et al., 2002; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Popov et al., 2011). In general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower TTS onset than other measured pinniped or cetacean species. Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall et al. (2007) and Finneran and Jenkins (2012).

    Behavioral effects—Behavioral disturbance may include a variety of effects, including subtle changes in behavior (e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors (e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source (e.g., whether it is moving or stationary, number of sources, distance from the source). Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a “progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,” rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds 2002; see also Richardson et al., 1995; Nowacek et al., 2007).

    Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007; NRC 2005). However, there are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight.

    Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (e.g., Frankel and Clark 2000; Costa et al., 2003; Ng and Leung 2003; Nowacek et al.; 2004; Goldbogen et al.., 2013a,b). Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging) or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response.

    Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance (e.g., Croll et al., 2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal.

    Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et al., 2007).

    Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007b). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994).

    Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Avoidance may be short-term, with animals returning to the area once the noise has ceased (e.g., Bowles et al., 1994; Goold 1996; Stone et al., 2000; Morton and Symonds 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006).

    A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (e.g., directed movement, rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine mammal strandings (Evans and England 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves, 2008), and whether individuals are solitary or in groups may influence the response.

    Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (e.g., Beauchamp and Livoreil 1997; Fritz et al., 2002; Purser and Radford 2011). In addition, chronic disturbance can cause population declines through reduction of fitness (e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both (e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a five-day period did not cause any sleep deprivation or stress effects.

    Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses.

    Stress responses—An animal's perception of a threat may be sufficient to trigger stress responses consisting of some combination of behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 2000). In many cases, an animal's first and sometimes most economical (in terms of energetic costs) response is behavioral avoidance of the potential stressor. Autonomic nervous system responses to stress typically involve changes in heart rate, blood pressure, and gastrointestinal activity. These responses have a relatively short duration and may or may not have a significant long-term effect on an animal's fitness.

    Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (e.g., Moberg 1987; Blecha 2000). Increases in the circulation of glucocorticoids are also equated with stress (Romano et al., 2004).

    The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.

    Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005). Stress responses due to exposure to anthropogenic sounds or other stressors and their effects on marine mammals have also been reviewed (Fair and Becker 2000; Romano et al., 2002b) and, more rarely, studied in wild populations (e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales. These and other studies lead to a reasonable expectation that some marine mammals will experience physiological stress responses upon exposure to acoustic stressors and that it is possible that some of these would be classified as “distress.” In addition, any animal experiencing TTS would likely also experience stress responses (NRC 2003).

    Auditory masking—Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest (e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, navigation) (Richardson et al., 1995). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural (e.g., snapping shrimp, wind, waves, precipitation) or anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. The ability of a noise source to mask biologically important sounds depends on the characteristics of both the noise source and the signal of interest (e.g., signal-to-noise ratio, temporal variability, direction), in relation to each other and to an animal's hearing abilities (e.g., sensitivity, frequency range, critical ratios, frequency discrimination, directional discrimination, age or TTS hearing loss), and existing ambient noise and propagation conditions.

    Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (e.g., Clark et al., 2009) and may result in energetic or other costs as animals change their vocalization behavior (e.g., Miller et al., 2000; Foote et al., 2004; Parks et al., 2007b; Di Iorio and Clark 2009; Holt et al., 2009). Masking can be reduced in situations where the signal and noise come from different directions (Richardson et al., 1995), through amplitude modulation of the signal, or through other compensatory behaviors (Houser and Moore 2014). Masking can be tested directly in captive species (e.g., Erbe 2008), but in wild populations it must be either modeled or inferred from evidence of masking compensation. There are few studies addressing real-world masking sounds likely to be experienced by marine mammals in the wild (e.g., Branstetter et al., 2013).

    Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (e.g., from vessel traffic), contribute to elevated ambient sound levels, thus intensifying masking.

    Acoustic Effects, Underwater

    Potential Effects of Pile Driving—The effects of sounds from pile driving might include one or more of the following: temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2003; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving on marine mammals are dependent on several factors, including the type and depth of the animal; the pile size and type, and the intensity and duration of the pile driving sound; the substrate; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the frequency, received level, and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species could be expected to include physiological and behavioral responses to the acoustic signature (Viada et al., 2008). Potential effects from impulsive sound sources like pile driving can range in severity from effects such as behavioral disturbance to temporary or permanent hearing impairment (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects— Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing TSs. PTS constitutes injury, but TTS does not (Southall et al., 2007). Based on the best scientific information available, the SPLs for the construction activities in this project are below the thresholds that could cause TTS or the onset of PTS (Table 3).

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving or removal to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

    Disturbance Reactions

    Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds. With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): 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 sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries). Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff 2006). If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals, and if so potentially on the stock or species, could potentially be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007).

    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 expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Drastic changes in diving/surfacing patterns (such as those thought to cause beaked whale stranding due to exposure to military mid-frequency tactical sonar);

    • Longer-term habitat abandonment due to loss of desirable acoustic environment; and

    • Longer-term cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking

    Natural and artificial sounds can disrupt behavior by masking. The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. The most intense underwater sounds in the proposed action are those produced by impact pile driving. Given that the energy distribution of pile driving covers a broad frequency spectrum, sound from these sources would likely be within the audible range of marine mammals present in the project area. Impact pile driving activity is relatively short-term, with rapid pulses occurring for approximately fifteen minutes per pile. The probability for impact pile driving resulting from this proposed action masking acoustic signals important to the behavior and survival of marine mammal species is low. Vibratory pile driving is also relatively short-term, with rapid oscillations occurring for approximately one and a half hours per pile. It is possible that vibratory pile driving resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory and impact pile driving, and which have already been taken into account in the exposure analysis.

    Acoustic Effects, Airborne

    Pinnipeds that occur near the project site could be exposed to airborne sounds associated with pile driving and removal that have the potential to cause behavioral harassment, depending on their distance from pile driving activities. Cetaceans are not expected to be exposed to airborne sounds that would result in harassment as defined under the MMPA.

    Airborne noise will primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple instances of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.

    Anticipated Effects on Habitat

    The proposed activities at the Ferry Terminal would not result in permanent negative impacts to habitats used directly by marine mammals, but may have potential short-term impacts to food sources such as forage fish and may affect acoustic habitat (see masking discussion above). There are no known foraging hotspots or other ocean bottom structure of significant biological importance to marine mammals present in the marine waters of the project area. Therefore, the main impact issue associated with the proposed activity would be temporarily elevated sound levels and the associated direct effects on marine mammals, as discussed previously in this document. The primary potential acoustic impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal in the area. However, other potential impacts to the surrounding habitat from physical disturbance (i.e., increased turbidity) are also possible.

    Pile Driving Effects on Potential Prey (Fish)

    Construction activities would produce continuous (i.e., vibratory pile driving) sounds and pulsed (i.e. impact driving) sounds. Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality.

    The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

    Pile Driving Effects on Potential Foraging Habitat

    The area likely impacted by the project is relatively small compared to the available habitat in San Francisco Bay. Avoidance by potential prey (i.e., fish) of the immediate area due to the temporary loss of this foraging habitat is also possible. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the San Francisco ferry terminal and nearby vicinity in San Francisco Bay.

    The duration of the construction activities is relatively short. The construction window is six months long, with construction expected to take no more than 41 days. Each day, construction would only occur for a few hours during the day. Impacts to habitat and prey are expected to be minimal based on the short duration of activities.

    In summary, given the short daily duration of sound associated with individual pile driving events and the relatively small areas being affected, pile driving activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” 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 B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to acoustic sources (i.e., impact and vibratory pile driving). Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., bubble curtain, soft start, shutdowns, etc.—discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be 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 proposed 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 and impact pile driving) or intermittent (e.g., scientific sonar) sources.

    WETA's proposed activity includes the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) 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). WETA's proposed activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources.

    These thresholds 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.

    EN27AP18.001 Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Level B Harassment

    In-Water Disturbance during Vibratory Pile Driving—Level B behavioral disturbance may occur incidental to the use of a vibratory hammer due to propagation of underwater noise during installation of new steel piles. A total of 81 steel piles will be installed at the Ferry Terminal. During the 2017 construction season, all piles were installed using a vibratory hammer. The hydroacoustic monitoring conducted for vibratory driving during the 2017 season has been used to establish the expected source values of piles driven during the 2018 construction season. The SLs were measured at 10 m for the 30- and 36-in piles and between 9 and 15 m for the 24-in piles. The SLs for 24-in piles were calculated using the measured values from 9 to 15 m normalized to 10 m. The maximum peak, maximum rms, and mean SEL values for each of the pile types (24-, 30-, and 36-in steel piles) were used as the SLs to estimate take from vibratory driving. These values are provided in Table 4.

    Table 4—Sound Source Levels by Pile Type Pile size and installation method Source level at 10 m (dB re 1 μPa) Peak RMS SEL 24-in Vibratory 183 165 160 24-in Impact 1 2 193 180 167 30-in Vibratory 181 157 153 30-in Impact 1 2 200 180 167 36-in Vibratory 191 173 159 36-in Impact 1 2 200 183 173 1 Caltrans 2009. 2 Impact SLs include 10 dB reduction due to bubble curtain.

    Additionally, monitoring conducted during 2017 construction established that for vibratory pile driving in the project area, the transmission loss is greater than the standard value of 15 used in typical take calculations. For estimating take from vibratory pile driving, Level B harassment zones are calculated using the average transmission loss measured in 2017 minus one standard deviation of those measurements (22.26 − 3.51 = 18.75). Using the calculated transmission loss model (18.75logR), the in-water Level B harassment zones were determined for each pile size (Table 5). For 24-in steel piles driven with a vibratory hammer, the Level B harassment zone is expected to be 2,512 m (8,421 ft). For 30-in piles, the Level B harassment zone is expected to be 940 m (3,084 ft). For 36-in piles, the Level B harassment zone is expected to be 6,709 m (22,011 ft).

    In-Water Disturbance during Impact Pile Driving—As stated previously, all piles installed in the 2017 construction season were installed solely using a vibratory hammer. However, the use of an impact hammer to install piles may be required; therefore, the effects of impact pile driving is discussed here. Level B behavioral disturbance may occur incidental to the use of an impact hammer due to the propagation of underwater noise during the installation of steel piles. Piles will be driven to approximately 120 to 140 ft below Mean Lower Low Water (MLLW). Installation of these pipe piles may require up to 1,800 strikes per piles from an impact hammer using a DelMag D46-32, or similar diesel hammer, producing approximately 122,000 foot-pounds maximum energy per blow, and 1.5 seconds per blow average.

    Other projects constructed under similar circumstances were reviewed to estimate the approximate noise produced by the 24-, 30-, and 36-in steel piles. These projects include the driving of similarly sized piles at the Alameda Bay Ship and Yacht project, the Rodeo Dock Repair project, and the Amorco Wharf Repair Project (Caltrans 2012). Bubble curtains will be used during the installation of these piles, which, based on guidance provided by Caltrans for a mid-sized steel piles (with a diameter greater than 24 but less than 48 in), is expected to reduce noise levels by 10 dB rms (Caltrans 2015a).

    Because no impact pile driving was used in the 2017 construction season, no site-specific transmission loss measurements exist for this project. The Practical Spreading Loss Model (15logR) is used to determine the Level B harassment zones for each pile size (Table 5). Both 24- and 30-in steel piles have a SL of 180 dB rms re 1 µPa and therefore have the same Level B harassment zone of 215 m (705 ft). For 36-in piles, the Level B harassment zone is expected to be 341 m (1,120 ft).

    Table 5—Pile Driving Source Levels and Level B Harassment Zones Pile size and installation method Source level
  • (dB re 1 μPa rms)
  • Level B threshold
  • (dB re 1 μPa rms)
  • Propagation
  • (xLogR)
  • Distance to
  • Level B
  • threshold
  • (m)
  • Area of Level B
  • harassment zone
  • (square km)
  • 24-in Vibratory 165 120 18.75 2,512 7.30 24-in Impact a 180 160 15 215 0.08 30-in Vibratory 157 120 18.75 940 1.08 30-in Impact a 180 160 15 215 0.08 36-in Vibratory 173 120 18.75 6,709 33.5 36-in Impact a 183 160 15 341 0.18 a Impact source levels include 10 dB reduction due to bubble curtain.
    Level A Harassment

    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 stationary sources (such as impact and vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.

    Table 6—Inputs for Determining Distances to Cumulative PTS Thresholds Pile size and installation method Source level at 10 m
  • (SEL)
  • Source level at 10 m
  • (rms)
  • Propagation
  • (xLogR)
  • Number of strikes per pile Number of piles per day Activity
  • duration
  • (seconds)
  • 24-in Vibratory 165 18.75 4 900 24-in Impact a 167 15 1,800 3 30-in Vibratory 157 18.75 4 900 30-in Impact a 167 15 1,800 3 36-in Vibratory 173 18.75 4 1,200 36-in Impact a 173 15 1,800 2 a Source level includes 10 dB reduction due to bubble curtain.
    Table 7—Resulting Level A Isopleths Pile size and installation method Distance to Level A threshold (m) Low-frequency cetaceans Mid-frequency cetaceans High-
  • frequency
  • cetaceans
  • Phocid pinnipeds Otariid pinnipeds
    24-in Vibratory 12 2 17 8 <1 24-in Impact 264 9 314 141 10 30-in Vibratory 4 <1 6 3 <1 30-in Impact 264 9 314 141 10 36-in Vibratory 38 5 52 26 3 36-in Impact 505 18 602 270 20

    The resulting PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. The largest isopleths result from impact pile driving. All piles installed in the 2017 construction season were driven solely using a vibratory hammer indicating that vibratory driving will be the most likely method of installation in the 2018 season. Given the short duration within a day that impact driving may be conducted and the mitigation measures proposed by WETA, Level A take is neither expected nor proposed to be authorized.

    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.

    Gray Whale

    Caltrans Richmond-San Rafael Bridge project monitors recorded 12 living and two dead gray whales in the surveys performed in 2012. All sightings were in either the Central or North Bay, and all but two sightings occurred during the months of April and May. One gray whale was sighted in June and one in October. The Oceanic Society has tracked gray whale sightings since they began returning to San Francisco Bay regularly in the late 1990s. Most sightings occurred just a mile or two inside of the Golden Gate, with some traveling into San Pablo Bay in the northern part of the San Francisco Bay (Self 2012). The Oceanic Society data show that all age classes of gray whales enter San Francisco Bay and they enter as singles or in groups of up to five individuals (Winning 2008). It is estimated that two to six gray whales enter San Francisco Bay in any given year.

    Bottlenose Dolphin

    Bottlenose dolphins are most often seen just within the Golden Gate or just east of the bridge when they are present in San Francisco Bay, and their presence may depend on the tides (GGCR 2016). Beginning in the summer of 2015, one to two bottlenose dolphins have been observed frequently swimming in the Oyster Point area of South San Francisco (GGCR 2016, 2017; Perlman 2017). Despite this recent occurrence, this stock is highly transitory in nature and is not expected to spend extended periods of time in San Francisco Bay. However, the number of sightings in the Central Bay has increased, suggesting that bottlenose dolphins are becoming more of a resident species.

    Harbor Porpoise

    In the last six decades, harbor porpoises have been observed outside of San Francisco Bay. The few porpoises that entered were not sighted past the Central Bay close to the Golden Gate Bridge. In recent years, however, there have been increasingly common observations of harbor porpoises in central, North, and South San Francisco Bay. According to observations by the Golden Gate Cetacean Research team as part of their multi-year assessment, over 100 porpoises may be seen at one time entering San Francisco Bay and over 600 individual animals have been documented in a photo-ID database. Porpoise activity inside San Francisco Bay is thought to be related to tide-dependent foraging, as well as mating behaviors (Keener 2011; Duffy 2015). Sightings are concentrated in the vicinity of the Golden Gate Bridge and Angel Island, with fewer numbers sighted south of Alcatraz and west of Treasure Island (Keener 2011).

    California Sea Lion

    In San Francisco Bay, sea lions haul out primarily on floating K docks at Pier 39 in the Fisherman's Wharf area of the San Francisco Marine. The Pier 39 haulout is approximately 1.5 miles from the project vicinity. The Marine Mammal Center (TMMC) in Sausalito, California has performed monitoring surveys at this location since 1991. A maximum of 1,706 sea lions was seen hauled out during one survey effort in 2009 (TMMC 2015). Winter numbers are generally over 500 animals (Goals Project 2000). In August to September, counts average from 350 to 850 (NMFS 2004). Of the California sea lions observed, approximately 85 percent were male. No pupping activity has been observed at this site or at other locations in the San Francisco Bay (Caltrans 2012). The California sea lions usually frequent Pier 39 in August after returning from the Channel Islands (Caltrans 2013). In addition to the Pier 39 haulout, California sea lions haul out on buoys and similar structures throughout San Francisco Bay. They are mainly seen swimming off the San Francisco and Marin shorelines within San Francisco Bay, but may occasionally enter the project area to forage.

    Northern Fur Seal

    Juvenile northern fur seals occasionally strand during El Niño events (TMMC 2016). In normal years, TMMC admits about five northern fur seals that strand on the central California coast. During El Niño years, this number dramatically increases. For example, during the 2006 El Niño event, 33 fur seals were admitted. Some of these stranded animals were collected from shorelines in San Francisco Bay (TMMC 2016). The shoreline in the vicinity of the project is developed waterfront, consisting of piers and wharves where northern fur seals are unlikely to strand.

    Pacific Harbor Seal

    Long-term monitoring studies have been conducted at the largest harbor seal colonies in Point Reyes National Seashore and Golden Gate National Recreation Area since 1976. Castro Rocks and other haulouts in San Francisco Bay are part of the regional survey area for this study and have been included in annual survey efforts. Between 2007 and 2012, the average number of adults observed ranged from 126 to 166 during the breeding season (March through May), and from 92 to 129 during the molting season (June through July) (Truchinski et al., 2008; Flynn et al., 2009; Codde et al., 2010, 2011, 2012; Codde and Allen 2015). Marine mammal monitoring at multiple locations inside San Francisco Bay was conducted by the California Department of Transportation (Caltrans) from May 1998 to February 2002, and determined that at least 500 harbor seals populate San Francisco Bay (Green et al., 2002). This estimate agrees with previous seal counts in the San Francisco Bay, which ranged from 524 to 641 seals from 1987 to 1999 (Goals Project 2000).

    Yerba Buena Island is the nearest harbor seal haulout site, with as many as 188 individuals observed hauled out. Harbor seals are more likely to be hauled out in the late afternoon and evening, and are more likely to be in the water during the morning and early afternoon. Tidal stage is a major controlling factor of haulout use by harbor seals, with more seals present during low tides than high tide periods (Green et al., 2002). Therefore, the number of harbor seals in the vicinity of Yerba Buena Island will vary throughout the work period.

    Northern Elephant Seal

    Northern elephant seals are seen frequently on the California coast. Elephant seals aggregate at various sites along the coast to give birth and breed from December through March. Pups remain onshore or in adjacent shallow water through May. Adults make two foraging migrations each year, one after breeding and the second after molting (Stewart and DeLong 1995). Most strandings occur in May as young pups make their first trip out to sea. When those pups return to their rookery sites to molt in late summer and fall, some make brief stops in San Francisco Bay. Approximately 100 juvenile elephant seals strand in San Francisco Bay each year, including individual strandings at Yerba Buena Island and Treasure Island (fewer than 10 strandings per year) (Caltrans 2015b).

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    While impact pile driving may be used during this project, all piles in the previous year of construction were installed completely with vibratory pile driving. Impact driving take calculations are included for informational purposes (Tables 8 and 9). However, only vibratory pile driving take calculations are conservatively used for the take estimation in this IHA as vibratory driving is the most likely method of pile installation and results in greater Level B harassment zones.

    Gray Whale

    Gray whales occasionally enter San Francisco Bay during their northward migration period of February and March. Pile driving is not proposed to occur during this time and gray whales are not likely to be present at other times of the year. It is estimated that two to six gray whales enter the Bay in any given year, but they are unlikely to be present during the work period (June 1 through November 30). However, individual gray whales have occasionally been observed in San Francisco Bay during the work period, and therefore it is estimated that, at most, one gray whale may be exposed to Level B harassment during two days of pile driving if they enter the Level B harassment zones (Table 12).

    Bottlenose Dolphin

    When bottlenose dolphins are present in San Francisco Bay, they are more typically found close to the Golden Gate. Recently, beginning in 2015, two individuals have been observed frequently in the vicinity of Oyster Point (GGCR 2016, 2017; Perlman 2017). The average reported group size for bottlenose dolphins is five. Reports show that a group normally comes into San Francisco Bay and transits past Yerba Buena Island once per week for approximately a two week stint, then leaves (NMFS 2017b). Assuming the dolphins come into San Francisco Bay three times per year, the group of five dolphins would make six passes through the Level B harassment zone for a total of 30 takes (Table 12).

    Harbor Porpoise

    A small but growing population of harbor porpoises uses San Francisco Bay. Porpoises are usually spotted in the vicinity of Angel Island and the Golden Gate Bridge (Keener 2011), but may use other areas of the Central Bay in low numbers. During construction activities in 2017, marine mammal observers recorded eight sightings of harbor porpoises, including a group of two to three individuals that was seen three times over the course of the pile-driving season. Harbor porpoises generally travel individually or in small groups of two or three (Sekiguchi 1995), and a pod of up to four individuals was observed in the area south of Yerba Buena Island during the 2017 Bay Bridge monitoring window. A pod of four harbor porpoises could potentially enter the Level B harassment zone on as many as eight days of pile driving, for 32 total takes (Table 12).

    California Sea Lion

    Caltrans has conducted monitoring of marine mammals in the vicinity of the Bay Bridge for 16 years. From those data, Caltrans has produced at-sea density estimates for California sea lions of 0.09 animals per square kilometer (0.23 per square mile) for the summer-late fall season (Caltrans 2016). Marine mammal monitoring observations from the 2017 construction season were used to calculate a project-specific estimate of take per driving day (1.29 animals per day). Observations from marine mammal monitoring in 2017 were assumed to represent the occurrence of California sea lions along the waterfront while the Caltrans density represents the occurrence of California sea lions in open water in the bay. The two numbers were combined to calculate the daily average take over the entire Level B harassment zone (Table 8).

    Table 8—Estimated Daily California Sea Lion Takes Pile size and installation method Area of Level B
  • harassment zone
  • (square km)
  • At-sea density
  • (animals per
  • square km) a
  • Takes per day
  • from density
  • Takes per day
  • from 2017
  • monitoring
  • Total daily
  • Level B takes
  • 24-in Vibratory 7.304 0.23 0.66 1.29 1.95 24-in Impact 0.084 0.23 0.01 1.29 1.30 30-in Vibratory 1.083 0.23 0.10 1.29 1.39 30-in Impact 0.084 0.23 0.01 1.29 1.30 36-in Vibratory 33.497 0.23 3.02 1.29 4.31 36-in Impact 0.177 0.23 0.02 1.29 1.31 a Caltrans 2016.

    During El Niño conditions, the density of California sea lions in San Francisco Bay may be much greater than the value used above. The likelihood of El Niño conditions occurring in 2018 is currently low, with La Niña conditions expected to develop (NOAA 2018). However, to account for the potential of El Niño developing in 2018, daily take estimated has been increase by a factor of 5 for each pile type (Table 9).

    Table 9—Estimated Total California Sea Lion Takes From Vibratory Pile Driving Pile size Number of piles Number of days Daily takes Total takes by pile 24-in 35 18 9.75 176 30-in 18 9 6.95 63 36-in 28 14 21.55 302 Total 541 Northern Fur Seal

    The incidence of northern fur seals in San Francisco Bay depends largely on oceanic conditions, with animals more likely to strand during El Niño events. El Niño conditions are unlikely to develop in 2018 (NOAA 2018) but it is anticipated that up to 10 northern fur seals may be in San Francisco Bay and enter the Level B harassment zone (Table 12) (NMFS 2016b).

    Pacific Harbor Seal

    Caltrans has produced at-sea density estimates for Pacific harbor seals of 0.83 animals per square kilometer (2.15 per square mile) for the fall-winter season (Caltrans 2016). Even though work will predominantly occur during the summer, when at-sea density has been observed to be lower (Caltrans 2016), the higher value of fall-winter density is conservatively used. Additionally, marine mammal monitoring observations from the 2017 construction season were used to calculate a project-specific estimate of take per driving day (3.18 animals per day). Observations from marine mammal monitoring in 2017 were assumed to represent the occurrence of harbor seals along the waterfront while the Caltrans density represents the occurrence of harbor seals in open water in the bay. The two numbers were combined to calculate the daily average take over the entire Level B harassment zone (Table 10). The daily take and days of pile installation were used to calculate total harbor seal Level B takes (Table 11).

    Table 10—Estimated Daily Harbor Seal Takes Pile size and installation method Area of Level B
  • harassment zone
  • (square km)
  • At-sea density
  • (animals per
  • square km) a
  • Takes per day
  • from density
  • Takes per day
  • from 2017
  • monitoring
  • Total daily
  • Level B
  • takes
  • 24-in Vibratory 7.304 0.83 6.06 3.18 9.24 24-in Impact 0.084 0.83 0.07 3.18 3.25 30-in Vibratory 1.083 0.83 0.90 3.18 4.08 30-in Impact 0.084 0.83 0.07 3.18 3.25 36-in Vibratory 33.497 0.83 27.8 3.18 30.98 36-in Impact 0.177 0.83 0.15 3.18 3.33 a Caltrans 2016.
    Table 11—Estimated Total Pacific Harbor Seal Takes From Vibratory Pile Driving Pile size Number of piles Number of days Daily takes Total takes by pile 24-in 35 18 9.24 166 30-in 18 9 4.08 37 36-in 28 14 30.98 434 Total 637 Northern Elephant Seal

    Small numbers of elephant seals haul out or strand on Yerba Buena Island and Treasure Island each year. Monitoring of marine mammals in the vicinity of the Bay Bridge has been ongoing for 15 years. From these data, Caltrans has produced an estimated at-sea density for elephant seals of 0.06 animals per square kilometer (0.16 per square mile) (Caltrans 2015b). Most sightings of elephant seals occur in spring or early summer, and are less likely to occur during the period of in-water work for this project. As a result, densities during pile driving would be much lower. It is possible that a lone elephant seal may enter the Level B harassment zone once per week during the 26 week pile driving window (June 1 to November 30) for a total of 26 takes (Table 12).

    Table 12—Total Level B Estimated Takes Gray whale Bottlenose
  • dolphin
  • Harbor
  • porpoise
  • California sea lion Northern fur seal Pacific harbor seal Northern
  • elephant
  • seal
  • Take Estimate 2 30 32 541 10 637 26
    Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) 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, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat General Construction Measures

    A Spill Prevention Control and Countermeasure (SPCC) plan has been prepared to address the emergency cleanup of any hazardous material, and will be available onsite. The SPCC plan incorporates SPCC, hazardous waste, stormwater, and other emergency planning requirements. In addition, the project will comply with the Port's stormwater regulations. Fueling of land and marine-based equipment will be conducted in accordance with procedures outlined in the SPCC. Well-maintained equipment will be used to perform work, and except in the case of a failure or breakdown, equipment maintenance will be performed offsite. Equipment will be inspected daily by the operator for leaks or spills. If leaks or spills are encountered, the source of the leak will be identified, leaked material will be cleaned up, and the cleaning materials will be collected and properly disposed. Fresh cement or concrete will not be allowed to enter San Francisco Bay. All construction materials, wastes, debris, sediment, rubbish, trash, fencing, etc. will be removed from the site once project construction is complete, and transported to an authorized disposal area.

    Pile Driving

    Pre-activity monitoring will take place from 30 minutes prior to initiation of pile driving activity and post-activity monitoring will continue through 30 minutes post-completion of pile driving activity. Pile driving may commence at the end of the 30-minute pre-activity monitoring period, provided observers have determined that the shutdown zone (described below) is clear of marine mammals, which includes delaying start of pile driving activities if a marine mammal is sighted in the zone, as described below. 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).

    If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 or 30 minutes (for pinnipeds/small cetaceans or large cetaceans, respectively) have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.

    For all pile driving activities, a minimum of one protected species observed (PSO) will be required, stationed at the active pile driving rig or at the best vantage point(s) practicable to monitor the shutdown zones for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.

    Monitoring of pile driving will be conducted by qualified PSOs (see below) who will have no other assigned tasks during monitoring periods. WETA will adhere to the following conditions when selecting observers:

    • Independent PSOs will be used (i.e., not construction personnel);

    • At least one PSO must have prior experience working as a marine mammal observer during construction activities;

    • Other PSOs may substitute education (degree in biological science or related field) or training for experience; and

    • WETA will submit PSO CVs for approval by NMFS.

    WETA will ensure that observers have the following additional qualifications:

    • Ability to conduct field observations and collect data according to assigned protocols;

    • Experience or training in the field identification of marine mammals, including the identification of behaviors;

    • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    • Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and

    • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

    To prevent Level A take of any species, shutdown zones equivalent to the Level A harassment zones will be established. If the Level A harassment zone is less than 10 m, a minimum 10 m shutdown zone will be enforced. WETA will implement shutdown zones as follows:

    Table 13—Pile Driving Shutdown Zones Pile size and installation method Shutdown zone (m) Low-frequency Cetaceans Mid-frequency cetaceans High-
  • frequency
  • cetaceans
  • Phocid pinnipeds Otariid pinnipeds
    24-in Vibratory 12 10 17 10 10 24-in Impact 264 10 314 141 10 30-in Vibratory 10 10 10 10 10 30-in Impact 264 10 314 141 10 36-in Vibratory 38 10 52 26 10 36-in Impact 505 18 602 270 20

    If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the Level B harassment zones (Table 5), pile driving and removal activities must cease immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or 15 or 30 minutes (pinniped/small cetacean or large cetacean, respectively) has elapsed.

    Piles driven with an impact hammer will employ a “soft start” technique to give fish and marine mammals an opportunity to move out of the area before full-powered impact pile driving begins. This soft start will include an initial set of three strikes from the impact hammer at reduced energy, followed by a 30 second waiting period, then two subsequent three-strike sets. Soft start will be required at the beginning of each day's impact pile driving work and at any time following a cessation of impact pile driving of 30 minutes or longer.

    Impact hammers will be cushioned using a 12-in thick wood cushion block. WETA will also employ a bubble curtain during impact pile driving. WETA will implement the following performance standards:

    • The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column;

    • The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline contact. No parts of the ring or other objects shall prevent full mudline contact; and

    • WETA shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers, and shall require that construction contractors submit an inspection/performance report for approval by WETA within 72 hours following the performance test. Corrections to the attenuation device to meet the performance standards shall occur prior to impact driving.

    Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable 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 IHA for an activity, Section 101(a)(5)(D) 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) indicate 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.

    Hydroacoustic Monitoring

    WETA's proposed monitoring and reporting is also described in their Hydroacoustic Monitoring Plan and Marine Mammal Monitoring Plan, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

    Hydroacoustic monitoring will be conducted in consultation with the California Department of Fish and Wildlife (CDFW) during a minimum of ten percent of all impact pile driving activities. Hydroacoustic monitoring of vibratory pile driving was completed during the 2017 construction season and will not be conducted in 2018. Monitoring of impact pile driving will be done in accordance with the methodology outlined in the Hydroacoustic Monitoring Plan. The monitoring will be conducted to achieve the following:

    • Be based on the dual metric criteria (Popper et al., 2006) and the accumulated SEL;

    • Establish field locations that will be used to document the extent of the area experiencing 187 dB SEL accumulated;

    • Verify the distance of the Marine Mammal Level A harassment/shutdown zone and Level B harassment zone thresholds;

    • Describe the methods necessary to continuously assess underwater noise on a real-time basis, including details on the number, location, distance, and depth of hydrophones and associated monitoring equipment;

    • Provide a means of recording the time and number of pile strikes, the peak sound energy per strike, and interval between strikes; and

    • Provide provisions to provide all monitoring data to the CDFW and NMFS.

    Visual Marine Mammal Observations

    WETA will collect sighting data and behavioral responses to construction for marine mammal species observed in the Level B harassment zones during the period of activity. All PSOs will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. WETA proposes to use one PSO to monitor the shutdown zones and Level B harassment zone. During previous hydroacoustic monitoring for the Bay Bridge construction and demolition, it has not been possible to detect or distinguish sound from vibratory pile driving beyond 1,000 to 2,000 m (3,280 to 6,562 ft) from the source (Rodkin 2009). Thus, the monitoring zone for the vibratory driving of 24- and 36-in piles will be set at 2,000 m (6,562 ft). The monitoring zone for the vibratory driving of 30-in piles will be set equivalent to the Level B harassment zone (940 m, 3,084 ft). The PSO will monitor the shutdown zones and monitoring zones before, during, and after pile driving. Based on our requirements, WETA will implement the following procedures for pile driving and removal:

    • The PSO will be located at the best vantage point in order to properly see the entire shutdown zone and as much of the monitoring zone as possible;

    • During all observation periods, the observer will use binoculars and the naked eye to search continuously for marine mammals;

    • If the shutdown zones are obscured by fog or poor lighting conditions, pile driving will not be initiated until that zone is visible. Should such conditions arise while pile driving is underway, the activity would be halted; and

    • The shutdown and monitoring zones will be monitored for the presence of marine mammals before, during, and after any pile driving activity.

    PSOs implementing the monitoring protocol will assess its effectiveness using an adaptive approach. The monitoring biologist will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and WETA.

    In addition, the PSO will survey the Level A and Level B harassment zones (areas within approximately 2,000 ft of the pile-driving area observable from the shore) on two separate days—no earlier than seven days before the first day of construction—to establish baseline observations. Monitoring will be timed to occur during various tides (preferably low and high tides) during daylight hours from locations that are publicly accessible (e.g., Pier 14 or the Ferry Plaza). The information collected from baseline monitoring will be used for comparison with results of monitoring during pile-driving activities.

    Data Collection

    WETA will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, WETA will attempt to distinguish between the number of individual animals taken and the number of incidences of take. We require that, at a minimum, the following information be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, age and sex class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel, and if possible, the correlation to SPLs;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Description of implementation of mitigation measures (e.g., shutdown or delay);

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Reporting

    A draft report will be submitted to NMFS within 90 days of the completion of marine mammal monitoring, or sixty days prior to the requested date of issuance of any future IHA for projects at the same location, whichever comes first. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving and removal days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report.

    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).

    Pile driving activities associated with the ferry terminal construction project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving and removal. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving and removal occurs.

    No injury, serious injury, or mortality is anticipated given the nature of the activities and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of installation (impact driving is included only as a contingency). Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. If impact driving is necessary, implementation of soft start and shutdown zones significantly reduces any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to it becoming potentially injurious. WETA will also employ the use of 12-in-thick wood cushion block on impact hammers, and a bubble curtain as sound attenuation devices. Environmental conditions in San Francisco Ferry Terminal mean that marine mammal detection ability by trained observers is high, enabling a high rate of success in implementation of shutdowns to avoid injury.

    WETA's activities are localized and of relatively short duration (a maximum of 41 days of pile driving over the work season). The entire project area is limited to the San Francisco ferry terminal area and its immediate surroundings. These localized and short-term noise exposures may cause short-term behavioral modifications in harbor seals, northern fur seals, northern elephant seals, California sea lions, harbor porpoises, bottlenose dolphins, and gray whales. Moreover, the planned mitigation and monitoring measures are expected to reduce the likelihood of injury and behavior exposures. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be within the ensonified area during the construction time frame.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat. The project activities will not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily 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.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff 2006; Lerma 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus will not result in any adverse impact to the stock as a whole.

    In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No mortality is anticipated or authorized;

    • Injurious takes are not expected due to the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact;

    • Level B harassment may consist of, at worst, temporary modifications in behavior (e.g., temporary avoidance of habitat or changes in behavior);

    • The lack of important feeding, pupping, or other areas in the action area;

    • The high level of ambient noise already in the ferry terminal area; and

    • The small percentage of the stock that may be affected by project activities (less than seven percent for all species).

    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 marine mammal 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)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, 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. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    Table 12 details the number of instances that animals could be exposed to received noise levels that could cause Level B harassment for the planned work at the ferry terminal project site relative to the total stock abundance. The instances of take proposed to be authorized to be taken for all stocks are considered small relative to the relevant stocks or populations even if each estimated instance of take occurred to a new individual—an unlikely scenario. The total percent of the population (if each instance was a separate individual) for which take is requested is approximately seven percent for bottlenose dolphins, two percent for harbor seals, and less than one percent for all other species (Table 14). For pinnipeds occurring in the vicinity of the ferry terminal, there will almost certainly be some overlap in individuals present day-to-day, and the number of individuals taken is expected to be notably lower. Similarly, the number of bottlenose dolphins that could be subject to Level B harassment is expected to be a single pod of five individuals exposed up to six times over the course of the project.

    Table 14— Estimated Numbers and Percentage of Stocks Proposed To Be Authorized Species Authorized
  • takes
  • Stock
  • abundance
  • Estimate
  • Percentage of
  • total stock
  • (%)
  • Gray whale (Eschrichtius robustus)
  • Eastern North Pacific stock
  • 2 20,990 0.01
    Bottlenose dolphin (Tursiops truncatus)
  • California coastal stock
  • 30 453 6.9
    Harbor Porpoise (Phocoena phocoena)
  • San Francisco-Russian River Stock
  • 32 9,886 0.32
    California sea lion (Zalophus californianus)
  • U.S. Stock
  • 541 296,750 0.18
    Northern fur seal (Callorhinus ursinus)
  • California stock
  • 10 14,050 0.07
    Pacific harbor seal (Phoca vitulina richardii)
  • California stock
  • 637 30,968 2.06
    Northern elephant seal (Mirounga angustirostris)
  • California breeding stock
  • 26 179,000 0.01

    Based on the analysis contained herein of the proposed activity (including the proposed 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 Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily 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.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.

    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.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to WETA for conducting their Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project in San Francisco, CA, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This IHA would be valid from June 1, 2018 to May 31, 2019. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    The San Francisco Bay Area Water Emergency Transportation Authority (WETA) is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)) to harass marine mammals incidental to conducting their Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project in San Francisco, California (CA), when adhering to the following terms and conditions.

    1. This Incidental Harassment Authorization (IHA) is valid for one year from June 1, 2018 through May 31, 2018.

    2. This IHA is valid only for pile driving activities associated with the Downtown San Francisco Ferry Terminal Expansion Project, South Basin Improvements Project in San Francisco Bay, CA.

    3. General Conditions

    (a) A copy of this IHA must be in the possession of WETA, its designees, and work crew perso