Federal Register Vol. 83, No.82,

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.

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.

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 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.

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].

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

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.

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

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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 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.

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)).

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.).

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

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 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.

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

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.

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.

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

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.

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

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:

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.

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:

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

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.”

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.

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.

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.

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).)

40 CFR part 52 is amended as follows:

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:

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

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).

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.

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

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

28. The following dates and deadlines apply:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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].

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.

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:

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

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.

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).

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.

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.

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.

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).

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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