Federal Register Vol. 83, No.86,

Federal Register Volume 83, Issue 86 (May 3, 2018)

Page Range19427-19602
FR Document

83_FR_86
Current View
Page and SubjectPDF
83 FR 19601 - Law Day, U.S.A., 2018PDF
83 FR 19599 - Jewish American Heritage Month, 2018PDF
83 FR 19558 - Sunshine Act MeetingPDF
83 FR 19594 - Multiemployer Pension Plan Application To Reduce BenefitsPDF
83 FR 19558 - Final Order Denying Temporary Waiver ReliefPDF
83 FR 19553 - Applications for New Awards; Bipartisan Budget Act of 2018-Defraying Costs of Enrolling Displaced Students ProgramPDF
83 FR 19550 - Applications for New Awards; Bipartisan Budget Act of 2018-Emergency Assistance to Institutions of Higher Education ProgramPDF
83 FR 19497 - Air Plan Approval; Michigan; Revisions to Part 9 Miscellaneous RulesPDF
83 FR 19461 - Carriage of Digital Television Broadcast SignalsPDF
83 FR 19557 - Underground Injection Control Program; Hazardous Waste Injection Restrictions; Petition for Exemption Reissuance-Class I Hazardous Waste Injection; Equistar Corpus Christi, TexasPDF
83 FR 19436 - Safety Zone; Straits of Mackinac, Mackinaw City, MIPDF
83 FR 19573 - Public Meeting of the Glen Canyon Dam Adaptive Management Work GroupPDF
83 FR 19569 - Notice of Intent To Prepare a Draft Environmental Impact Statement for the Proposed Skookumchuck Wind Energy Project Habitat Conservation Plan in Lewis and Thurston Counties, WashingtonPDF
83 FR 19593 - Petition for Waiver of CompliancePDF
83 FR 19592 - Kasgro Rail Corp.-Discontinuance of Service Exemption-in Lawrence County, Pa.PDF
83 FR 19591 - Boston and Maine Corporation & Springfield Terminal Railway Company-Adverse Discontinuance of Operating Authority-Milford-Bennington Railroad Company, Inc.PDF
83 FR 19577 - Submission for OMB Review; Comments RequestPDF
83 FR 19531 - New England Fishery Management Council; Public MeetingPDF
83 FR 19530 - New England Fishery Management Council; Public MeetingPDF
83 FR 19531 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
83 FR 19526 - New England Fishery Management Council; Public MeetingPDF
83 FR 19557 - Notice of Request for Comment on the Exposure Draft of a Proposed Statement of Federal Financial Accounting Standards (SFFAS), Accounting and Reporting of Government LandPDF
83 FR 19555 - Environmental Management Site-Specific Advisory Board, Northern New MexicoPDF
83 FR 19524 - Foreign-Trade Zone 24-Pittston, Pennsylvania; Application for Subzone Expansion; Brake Parts Inc; Hazleton, PennsylvaniaPDF
83 FR 19594 - Notice of OFAC Sanctions ActionsPDF
83 FR 19527 - Atlantic Coastal Fisheries Cooperative Management Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
83 FR 19564 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 19572 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 19576 - Crow Butte Resources, Inc.; Marsland Expansion AreaPDF
83 FR 19524 - Proposed Information Collection Renewal; Comment Request; Domestic and International Client Export Services and Customized FormsPDF
83 FR 19523 - Submission for OMB Review; Comment RequestPDF
83 FR 19565 - Meeting of the Pain Management Best Practices Inter-Agency Task ForcePDF
83 FR 19591 - United States-Morocco Working Group on Environmental Cooperation Meeting and Public SessionPDF
83 FR 19461 - Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; 2018 Closure of the Northern Gulf of Maine Scallop Management AreaPDF
83 FR 19547 - Submission for OMB Review; Comment RequestPDF
83 FR 19528 - Submission for OMB Review; Comment RequestPDF
83 FR 19525 - Proposed Information Collection; Comment Request; Western and Central Pacific Fisheries Convention Vessel Information Family of FormsPDF
83 FR 19532 - Proposed Information Collection; Comment Request; Pacific Island Pelagic Longline Fisheries; Short-tailed Albatross-Fisheries Interaction Recovery ReportingPDF
83 FR 19530 - Submission for OMB Review; Comment RequestPDF
83 FR 19429 - Crabmeat; Amendment of Common or Usual Name RegulationPDF
83 FR 19431 - Clarification of Final Rules for Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections Under the Affordable Care ActPDF
83 FR 19462 - Fisheries of the Northeastern United States; Monkfish Fishery; 2018 Monkfish SpecificationsPDF
83 FR 19532 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off of New YorkPDF
83 FR 19564 - Assessing User Fees Under the Prescription Drug User Fee Amendments of 2017; Guidance for Industry; AvailabilityPDF
83 FR 19560 - Notice of Agreements FiledPDF
83 FR 19560 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 19588 - Privacy Act of 1974; System of RecordsPDF
83 FR 19549 - Submission for OMB Review; Comment RequestPDF
83 FR 19464 - Review of Administrative RulesPDF
83 FR 19577 - New Postal ProductsPDF
83 FR 19568 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 19567 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
83 FR 19569 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 19567 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 19521 - Notice of Solicitation of Applications for the Community Facilities Technical Assistance and Training Grant for Fiscal Year 2018PDF
83 FR 19427 - Special Conditions: St. Louis Helicopter, LLC; Textron Aviation B300, B300C, B300C (MC-12W), and B300C (UC-12W) Airplanes; Installation of Rechargeable Lithium BatteriesPDF
83 FR 19575 - Bi-Weekly Public Information Sessions; National Industrial Security Program Operations Manual Insider Threat Program and Security Executive Agent Directive 3PDF
83 FR 19566 - Stakeholder Listening Session in Preparation for the 71st World Health Assembly; MeetingPDF
83 FR 19440 - Medicaid/CHIP Program; Medicaid Program and Children's Health Insurance Program (CHIP); Changes to the Medicaid Eligibility Quality Control and Payment Error Rate Measurement Programs in Response to the Affordable Care Act; CorrectionPDF
83 FR 19578 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
83 FR 19547 - New England Fishery Management Council; Public MeetingPDF
83 FR 19527 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 19586 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To Amend Nasdaq Rule 4703(a) To Allow Members To Designate an Order with a RTFY or SCAN Routing Order Attribute To Activate at 7:00 a.m. ETPDF
83 FR 19578 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Regarding the Natixis Loomis Sayles Short Duration Income ETFPDF
83 FR 19574 - Certain Shielded Electrical Ribbon Cables and Products Containing the Same: Notice of a Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on a Consent Order Stipulation and Proposed Consent Order; Issuance of Consent Order and Termination of the InvestigationPDF
83 FR 19528 - Notice of Intent To Prepare an Environmental Impact StatementPDF
83 FR 19459 - Obligations Relating to Submission of FCC Form 2100, Schedule G, Used To Report TV Stations' Ancillary or Supplementary ServicesPDF
83 FR 19560 - Privacy Act of 1974; System of RecordsPDF
83 FR 19556 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; EPA's ENERGY STAR Program in the Residential SectorPDF
83 FR 19438 - Approval and Promulgation of Implementation Plans; Louisiana; Interstate Transport Requirements for the 2012 PM2.5PDF
83 FR 19483 - Approval and Promulgation of Implementation Plans; Texas; Attainment Demonstration for the Dallas/Fort Worth 2008 Ozone Nonattainment AreaPDF
83 FR 19495 - Approval of California Air Plan Revisions, Yolo-Solano Air Quality Management DistrictPDF
83 FR 19479 - Air Plan Approval; Missouri; Regional Haze Plan and Prong 4 (Visibility) for the 2012 PM2.5PDF
83 FR 19476 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Base Year Emissions Inventories for the Lebanon and Delaware County Nonattainment Areas for the 2012 Annual Fine Particulate Matter National Ambient Air Quality StandardPDF
83 FR 19499 - National Emission Standards for Hazardous Air Pollutants for Friction Materials Manufacturing Facilities; Residual Risk and Technology ReviewPDF
83 FR 19469 - Proposed Amendment of Class E Airspace; Gustavus, AKPDF
83 FR 19472 - Proposed Amendment of Class D Airspace, Removal of Class E Airspace, and Establishment of Class E Airspace; Olive Branch, MSPDF
83 FR 19471 - Proposed Amendment of Class E Airspace, Memphis, TNPDF
83 FR 19474 - Proposed Amendment of Class E Airspace, Knoxville, TNPDF
83 FR 19466 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 19440 - Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure InvestmentPDF
83 FR 19548 - Procurement List; Proposed Addition and DeletionsPDF

Issue

83 86 Thursday, May 3, 2018 Contents Agriculture Agriculture Department See

Rural Housing Service

Centers Medicare Centers for Medicare & Medicaid Services RULES Medicaid/CHIP Program: Changes to Medicaid Eligibility Quality Control and Payment Error Rate Measurement Programs in Response to the Affordable Care Act; Correction, 19440 2018-09347 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Child Care and Development Fund, Annual Aggregate Report, 19564 2018-09384 Coast Guard Coast Guard RULES Safety Zones: Straits of Mackinac, Mackinaw City, MI, 19436-19438 2018-09407 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19523-19524 2018-09380
Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 19548 2018-08322 Defense Acquisition Defense Acquisition Regulations System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19549-19550 2018-09358 2018-09360 Defense Department Defense Department See

Defense Acquisition Regulations System

Education Department Education Department NOTICES Applications for New Awards: Bipartisan Budget Act of 2018—Defraying Costs of Enrolling Displaced Students Program, 19553-19555 2018-09418 Bipartisan Budget Act of 2018—Emergency Assistance to Institutions of Higher Education Program, 19550-19553 2018-09417 Employee Benefits Employee Benefits Security Administration RULES Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections under the Affordable Care Act, 19431-19436 2018--09369 Energy Department Energy Department NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Northern New Mexico, 19555-19556 2018-09388 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Louisiana; Interstate Transport Requirements for the 2012 PM2.5 NAAQS, 19438-19439 2018-09314 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Yolo-Solano Air Quality Management District, 19495-19497 2018-09213 Michigan; Revisions to Part 9 Miscellaneous Rules, 19497-19499 2018-09414 Missouri; Regional Haze Plan and Prong 4 (Visibility) for 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone NAAQS, 19479-19483 2018-09211 Pennsylvania; Base Year Emissions Inventories for Lebanon and Delaware County Nonattainment Areas for 2012 Annual Fine Particulate Matter National Ambient Air Quality Standard, 19476-19478 2018-09201 Texas; Attainment Demonstration for Dallas/Fort Worth 2008 Ozone Nonattainment Area, 19483-19495 2018-09313 National Emission Standards for Hazardous Air Pollutants: Friction Materials Manufacturing Facilities; Residual Risk and Technology Review, 19499-19520 2018-09200 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: ENERGY STAR Program in Residential Sector, 19556-19557 2018-09332 Underground Injection Control Programs: Hazardous Waste Injection Restrictions; Petition for Exemption Reissuance—Class I Hazardous Waste Injection; Equistar Corpus Christi, TX, 19557 2018-09410 Federal Accounting Federal Accounting Standards Advisory Board NOTICES Exposure Drafts: Accounting and Reporting of Government Land, 19557-19558 2018-09391 Federal Aviation Federal Aviation Administration RULES Special Conditions: St. Louis Helicopter, LLC; Textron Aviation B300, B300C, B300C (MC-12W), and B300C (UC-12W) Airplanes; Installation of Rechargeable Lithium Batteries, 19427-19429 2018-09350 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 19466-19469 2018-09070 Amendment of Class D Airspace, Removal of Class E Airspace, and Establishment of Class E Airspace: Olive Branch, MS, 19472-19474 2018-09092 Amendment of Class E Airspace: Gustavus, AK, 19469-19471 2018-09103 Knoxville, TN, 19474-19475 2018-09089 Memphis, TN, 19471-19472 2018-09091 Federal Communications Federal Communications Commission RULES Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 19440-19459 2018--08886 Carriage of Digital Television Broadcast Signals, 19461 2018-09413 Obligations Relating to Submission of Form Used to Report TV Stations' Ancillary or Supplementary Services, 19459-19461 2018-09335 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 19558 2018-09541 Federal Financial Federal Financial Institutions Examination Council NOTICES Final Orders Denying Temporary Waiver Relief, 19558-19560 2018-09419 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 19560 2018-09365 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 19593-19594 2018-09400 2018-09401 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 19560 2018-09364 Federal Trade Federal Trade Commission NOTICES Privacy Act; Systems of Records, 19560-19563 2018-09333 Fish Fish and Wildlife Service NOTICES Environmental Impact Statements; Availability, etc.: Proposed Skookumchuck Wind Energy Project Habitat Conservation Plan in Lewis and Thurston Counties, WA, 19569-19572 2018-09405 Food and Drug Food and Drug Administration RULES Crabmeat; Amendment of Common or Usual Name Regulation, 19429-19431 2018--09371 NOTICES Guidance: Assessing User Fees under Prescription Drug User Fee Amendments of 2017, 19564-19565 2018-09366 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 19594 2018-09386 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Expansions; Applications: Brake Parts Inc.; Foreign-Trade Zone 24; Pittston, PA, 19524 2018-09387 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

RULES Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections under the Affordable Care Act, 19431-19436 2018-09369 NOTICES Meetings: Pain Management Best Practices Inter-Agency Task Force, 19565-19566 2018-09379 Stakeholder Listening Session in Preparation for 71st World Health Assembly, 19566-19567 2018-09348
Homeland Homeland Security Department See

Coast Guard

Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

See

Reclamation Bureau

Internal Revenue Internal Revenue Service RULES Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections under the Affordable Care Act, 19431-19436 2018--09369 International Trade Adm International Trade Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Domestic and International Client Export Services and Customized Forms, 19524-19525 2018-09381 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Shielded Electrical Ribbon Cables and Products Containing the Same, 19574-19575 2018-09339 Labor Department Labor Department See

Employee Benefits Security Administration

National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 19567-19569 2018-09352 2018-09353 2018-09355 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 19567 2018-09354 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Atlantic Sea Scallop Fishery; 2018 Closure of Northern Gulf of Maine Scallop Management Area, 19461-19462 2018-09377 Monkfish Fishery; 2018 Monkfish Specifications, 19462-19463 2018-09368 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19528, 19530, 19547-19548 2018-09372 2018-09375 2018-09376 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pacific Island Pelagic Longline Fisheries; Short-tailed Albatross-Fisheries Interaction Recovery Reporting, 19532 2018-09373 Western and Central Pacific Fisheries Convention Vessel Information Family of Forms, 19525-19526 2018-09374 Environmental Impact Statements; Availability, etc.: Washington Department of Fish and Wildlife and Puget Sound Tribes, 19528-19530 2018-09337 Exempted Fishing Permit; Applications, 19527 2018-09385 Meetings: Mid-Atlantic Fishery Management Council, 19531 2018-09394 New England Fishery Management Council, 19526-19527, 19530-19532, 19547 2018-09343 2018-09393 2018-09395 2018-09396 North Pacific Fishery Management Council, 19527-19528 2018-09342 Takes of Marine Mammals Incidental to Specified Activities: Site Characterization Surveys off of New York, 19532-19547 2018-09367 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 19572-19573 2018-09383 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Review of Administrative Rules, 19464-19466 2018-09359 NOTICES Environmental Assessments; Availability, etc.: Crow Butte Resources, Inc.; Marsland Expansion Area, 19576-19577 2018-09382 Meetings: Bi-Weekly Public Information Sessions; National Industrial Security Program Operations Manual Insider Threat Program and Security Executive Agent Directive 3, 19575 2018-09349 Overseas Overseas Private Investment Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19577 2018-09397 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 19577-19578 2018-09356 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Jewish American Heritage Month (Proc. 9731), 19597-19600 2018-09587 Law Day, U.S.A. (Proc. 9732), 19601-19602 2018-09588 Reclamation Reclamation Bureau NOTICES Meetings: Glen Canyon Dam Adaptive Management Work Group, 19573-19574 2018-09406 Rural Housing Service Rural Housing Service NOTICES Requests for Applications: Community Facilities Technical Assistance and Training Grant for Fiscal Year 2018, 19521-19523 2018-09351 Securities Securities and Exchange Commission NOTICES Applications: Deregistration under Investment Company Act of 1940, 19578 2018-09345 Self-Regulatory Organizations; Proposed Rule Changes: Nasdaq Stock Market, LLC, 19586-19588 2018-09341 NYSE Arca, Inc., 19578-19586 2018-09340 Social Social Security Administration NOTICES Privacy Act; Systems of Records, 19588-19591 2018-09362 State Department State Department NOTICES Meetings: United States-Morocco Working Group on Environmental Cooperation, 19591 2018-09378 Surface Transportation Surface Transportation Board NOTICES Adverse Discontinuance of Operating Authority: Boston and Maine Corp. and Springfield Terminal Railway Co.; Milford-Bennington Railroad Co., Inc., 19591-19592 2018-09398 Discontinuance of Service Exemptions: Kasgro Rail Corp., Lawrence County, PA, 19592-19593 2018-09399 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

NOTICES Multiemployer Pension Plan Application to Reduce Benefits, 19594-19595 2018-09421
Separate Parts In This Issue Part II Presidential Documents, 19597-19602 2018-09587 2018-09588 Reader Aids

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

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83 86 Thursday, May 3, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. FAA-2018-0374; Special Conditions No. 23-288-SC] Special Conditions: St. Louis Helicopter, LLC; Textron Aviation B300, B300C, B300C (MC-12W), and B300C (UC-12W) Airplanes; Installation of Rechargeable Lithium Batteries AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Textron Aviation models B300, B300C, B300C (MC-12W), and B300C (UC-12W) series airplanes. The airplane, as modified by St. Louis Helicopter LLC, will have a novel or unusual design feature associated with the installation of a rechargeable lithium battery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is May 3, 2018.

We must receive your comments by June 18, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0374 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

Hand Delivery of Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ruth Hirt, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, AIR-694, 901 Locust, Room 301, Kansas City, MO; telephone (816) 329-4108; facsimile (816) 329-4090.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Special conditions No. Company/airplane model 23-15-01-SC 1 Kestrel Aircraft Company/Model K-350. 23-09-02-SC 2 Cessna Aircraft Company/Model 525C (CJ4). 23-08-05-SC 3 Spectrum Aeronautical, LLC/Model 40. Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

1http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/39B156C006EB842E86257EF3004BB13C?OpenDocument&Highlight=installation%20of%20rechargeable%20lithium%20battery.

2http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/902232309C19F0D4862575CB0045AC0D?OpenDocument&Highlight=installation%20of%20rechargeable%20lithium%20battery.

3http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/28E630294DCC27B986257513005968A3?OpenDocument&Highlight=installation%20of%20rechargeable%20lithium%20battery.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

Background

On May 23, 2017, St. Louis Helicopter LLC (St. Louis Helicopter) applied for a supplemental type certificate (STC) to install a rechargeable lithium battery on the Textron Aviation, models B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes. These are commuter category airplanes with a maximum of 17 seats (including crew), maximum operating altitude of 35,000 feet, and powered by two Pratt & Whitney Canada PT6A-60 engines or two PT6A-67 engines, with 15,000 pounds maximum takeoff weight.

The current regulatory requirements for part 23 airplanes do not contain adequate requirements for use of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is proposing this special condition to address—

• All characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes; and

• Appropriate Instructions for Continued Airworthiness (ICA) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.

Type Certification Basis

Under the provisions of § 21.101, St. Louis Helicopter must show that the B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A24CE 4 or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference are located on pages 35 through 37 in A24CE.

4http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/0/c76fc5b6f3cf8a82862582560060751e/$FILE/A24CE_Rev_119.pdf.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

Special conditions are initially applicable to the models for which they are issued. Should the applicant apply for an STC to modify any other model(s) included on the same type certificate to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to the other model(s) under § 21.101.

Novel or Unusual Design Features

The Textron Aviation B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes will incorporate the following novel or unusual design features:

The installation of a rechargeable lithium battery as a main or engine start aircraft battery.

Discussion

The applicable regulations governing the installation of batteries in general aviation airplanes were derived from CAR 3 as part of the recodification that established 14 CFR part 23. The battery requirements identified in § 23.1353 were a rewording of the CAR requirements. Additional rulemaking activities—resulting from increased incidents of Ni-Cd battery fire or failures—incorporated § 23.1353(f) and (g), amendments 23-20 and 23-21, respectively. The FAA did not envision the introduction of lithium battery installations at the time these regulations were published.

The proposed use of rechargeable lithium batteries prompted the FAA to review the adequacy of these existing regulations. We determined the existing regulations do not adequately address the safety of lithium battery installations.

Current experience with rechargeable lithium batteries in commercial or general aviation is limited. However, other users of this technology—ranging from personal computers, to wireless telephone manufacturers, to the electric vehicle industry—have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and those resulting from exposure to extreme temperatures as described in the following paragraphs.

1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible than their Ni-Cd or lead-acid counterparts to thermal runway, which is an internal failure that can result in self-sustaining increases in temperature and pressure. This is especially true for overcharging, which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

2. Over-discharging: Discharge of some types of rechargeable lithium battery cells beyond the manufacturer's recommended specification can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).

3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of rechargeable lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.

4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test, and validation. This may lead to an unsafe condition during in service operation.

5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.

Applicability

As discussed above, these special conditions are applicable to the B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes. Should St. Louis Helicopter apply at a later date for an STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

Conclusion

This action affects only certain novel or unusual design features on the B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 23

Aircraft, Aviation safety, Signs and symbols.

Citation The authority citation for these special conditions is as follows: Authority:

49 U.S.C. 106(f), 106(g), 40113, 44701-44702, 44704; Pub. L. 113-53, 127 Stat 584 (49 U.S.C. 44704) note; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes modified by St. Louis Helicopter, LLC. 1. Installation of Lithium Battery

The FAA adopts that the following special conditions be applied to lithium battery installations on the Textron Aviation models B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes in lieu of the requirements § 23.1353 (a), (b), (c), (d), and (e), amendment 23-49.

Lithium battery installations on the models B300, B300C, B300C (MC-12W), and B300C (UC-12W) airplanes must be designed and installed as follows:

(1) Safe cell temperatures and pressures must be maintained during—

i. Normal operations;

ii. Any probable failure conditions of charging or discharging or battery monitoring system; and

iii. Any failure of the charging or battery monitoring system not shown to be extremely remote.

(2) The rechargeable lithium battery installation must be designed to preclude explosion or fire in the event of 1(1)ii and 1(1)iii failures.

(3) Design of the rechargeable lithium batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

(4) No explosive or toxic gasses emitted by any rechargeable lithium battery in normal operation or as the result of any failure of the battery charging system, monitoring system, or battery installation, which is not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

(5) Installations of rechargeable lithium batteries must meet the requirements of § 23.863(a) through (d), amendment 23-34.

(6) No corrosive fluids or gases that may escape from any rechargeable lithium battery, may damage surrounding structure or any adjacent systems, equipment, electrical wiring, or the airplane in such a way as to cause a major or more severe failure condition, in accordance with § 23.1309, amendment 23-49, and applicable regulatory guidance.

(7) Each rechargeable lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems that may be caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

(8) Rechargeable lithium battery installations must have—

i. A system to automatically control the charging rate of the battery to prevent battery overheating and overcharging; and either

ii. A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition; or

iii. A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

(9) Any rechargeable lithium battery installation, the function of which is required for safe operation of the aircraft, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state of charge of the batteries has fallen below levels considered acceptable for dispatch (see note 1) of the aircraft.

Note 1:

Reference § 23.1353(h) for dispatch consideration.

(10) The Instructions for Continued Airworthiness (ICA) required by § 23.1529 must contain maintenance requirements (see note 2) to assure that the battery has been sufficiently charged (see note 3) at appropriate intervals specified by the battery manufacturer and the equipment manufacturer that contain the rechargeable lithium battery or rechargeable lithium battery system. The lithium rechargeable batteries and lithium rechargeable battery systems must not degrade below specified ampere-hour levels sufficient to power the aircraft system. The ICA must also contain procedures for the maintenance of replacement batteries (see note 4) to prevent the installation of batteries that have degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Replacement batteries must be of the same manufacturer and part number as approved by the FAA.

Note 2:

Maintenance requirements include procedures that—

(a) Check battery capacity, charge degradation at manufacturers recommended inspection intervals; and

(b) Replace batteries at manufacturers recommended replacement schedule/time to prevent age related degradation.

Note 3:

The term “sufficiently charged” means that the battery must retain enough charge, expressed in ampere-hours, to ensure that the battery cells will not be damaged.

A battery cell may be damaged by low charge (i.e., below certain level), resulting in a reduction in the ability to charge and retain a full charge. This reduction would be greater than the reduction that may result from normal operational degradation.

Note 4:

Replacement battery in spares storage may be subject to prolonged storage at a low state of charge.

Issued in Kansas City, Missouri on April 23, 2018. Pat Mullen, Manager, Small Airplane Standards Branch, Aircraft Certification Service.
[FR Doc. 2018-09350 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 102 [Docket No. FDA-2018-N-1438] RIN 0910-AI04 Crabmeat; Amendment of Common or Usual Name Regulation AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule; technical amendment.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending the common or usual name regulation for crabmeat by replacing “brown king crabmeat” with “golden king crabmeat” as the common or usual name for crabmeat derived from the species Lithodes aequispinus. We are taking this action due to a recently enacted law. We are also correcting an error in the placement of a scientific term, which is editorial in nature.

DATES:

This rule is effective May 3, 2018. The compliance date for this rule is January 1, 2020.

ADDRESSES:

For access to the docket, go to https://www.regulations.gov and insert the docket number found in brackets in the heading of this final rule into the “Search” box and follow the prompts, and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT:

Steven Bloodgood, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-5316, [email protected].

SUPPLEMENTARY INFORMATION: Table of Contents I. General Overview of Final Rule II. Background and Legal Authority III. Compliance Date IV. Economic Analysis of Impacts V. Analysis of Environmental Impact VI. Paperwork Reduction Act of 1995 VII. Federalism VIII. Consultation and Coordination With Indian Tribal Governments IX. References I. General Overview of Final Rule

This rule amends § 102.50 (21 CFR 102.50) to designate “golden king crabmeat” as the sole common or usual name of crabmeat derived from the species Lithodes aequispinus. The regulation at § 102.50 currently lists “brown king crabmeat” as the common or usual name of crabmeat derived from the species Lithodes aequispina. In addition to replacing the common or usual name, we are revising the scientific name to read as Lithodes aequispinus, in accordance with a recently enacted law designating the acceptable market name of the species as “golden king crab.” We are also correcting § 102.50 so that Paralithodes platypus appears under the “Scientific name of crab” column for King crabmeat.

II. Background and Legal Authority

In the Federal Register of July 3, 1995 (60 FR 34459), we published a final rule amending the common or usual name provisions for crabmeat, to provide that the common or usual name of crabmeat derived from the species Lithodes aequispina is “brown king crabmeat.”

On May 5, 2017, the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), was signed into law. Section 774 of the Consolidated Appropriations Act, 2017, provides that, for purposes of applying the Federal Food, Drug, and Cosmetic Act (FD&C Act), the acceptable market name of Lithodes aequispinus is “golden king crab.”

The final rule amends § 102.50 to reflect the common or usual name of crabmeat derived from Lithodes aequispinus as provided by the Consolidated Appropriations Act, 2017, and to revise the scientific name of the species. The final rule also corrects § 102.50 to move the scientific name for King crabmeat, Paralithodes platypus, from the “Common or usual name of crabmeat” column to the “Scientific name of crab” column.

FDA finds good cause for issuing this amendment as a final rule without notice and comment because this amendment only updates the regulation to align with the law enacted by the Consolidated Appropriations Act, 2017 (5 U.S.C. 553(b)(B)). (“[W]hen regulations merely restate the statute they implement, notice-and-comment procedures are unnecessary.” Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (DC Cir. 1991); see also Komjathy v. Nat. Trans. Safety Bd., 832 F.2d 1294, 1296 (DC Cir. 1987), cert. denied, 486 U.S. 1057 (1988) (when a rule “does no more than repeat, virtually verbatim, the statutory grant of authority,” notice-and-comment procedures are not required)).) Therefore, we are issuing this amendment as a final rule, and publication of this document constitutes final action under the Administrative Procedure Act (APA) (5 U.S.C. 553).

In addition, we find good cause for this amendment to become effective on the date of publication of this action. The APA allows an effective date less than 30 days after publication as “provided by the agency for good cause found and published with the rule” (5 U.S.C. 553(d)(3)). A delayed effective date is unnecessary in this case because the new requirements regarding golden king crab are already effective as a matter of law and because moving the scientific name for King crabmeat is a ministerial action. Therefore, we find good cause for this amendment to become effective on the date of publication of this action.

III. Compliance Date

With respect to a compliance date, we intend that any adjustments to a product's labeling occur in a manner consistent with our uniform compliance date (see 81 FR 85156, November 25, 2016). Thus, the compliance date is January 1, 2020.

IV. Economic Analysis of Impacts

We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all 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, and other advantages; distributive impacts; and equity). Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866 and is not a deregulatory action for purposes of Executive Order 13771.

The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. We estimate that the mean cost per crab covered by the final rule is $0.23 (2016$). We estimate that the revenue per crab covered by the final rule ranges from $17.65 to $99.42 (2016$). Because the cost per crab covered by the final rule as a percentage of the revenue per crab covered by the final rule is small, ranging from 0.2 percent to 1.3 percent, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the most current (2016) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the final rule. The full analysis of economic impacts is available in the docket for this final rule (Ref. 1).

V. Analysis of Environmental Impact

We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

VI. Paperwork Reduction Act of 1995

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

VII. Federalism

We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

VIII. Consultation and Coordination With Indian Tribal Governments

We have analyzed this rule in accordance with the principles set forth in Executive Order 13175. We have determined that the rule does not contain policies that 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. Accordingly, we conclude that the rule does not contain policies that have tribal implications as defined in the Executive Order and, consequently, a tribal summary impact statement is not required.

IX. References

The following reference is on display in the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

1. FDA, “Crabmeat; Amendment of Common or Usual Name Regulation: Final Regulatory Impact Analysis,” 2017. Also available at https://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses/default.htm. List of Subjects in 21 CFR Part 102

Beverages, Food grades and standards, Food labeling, Frozen foods, Oils and fats, Onions, Potatoes, Seafood.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 102 is amended as follows:

PART 102—COMMON OR USUAL NAME FOR NONSTANDARDIZED FOODS 1. The authority citation for part 102 continues to read as follows: Authority:

21 U.S.C. 321, 343, 371.

2. In § 102.50 revise the table to read as follows:
§ 102.50 Crabmeat. Scientific name of crab Common or usual name of crabmeat Chionoecetes opilio, Chionoecetes tanneri, Chionoecetes bairdii, and Chionoecetes angulatus Snow crabmeat. Erimacrus isenbeckii Korean variety crabmeat or Kegani crabmeat. Lithodes aequispinus Golden King crabmeat. Paralithodes brevipes King crabmeat or Hanasaki crabmeat. Paralithodes camtschaticus and Paralithodes platypus King crabmeat.
Dated: April 27, 2018. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2018-09371 Filed 5-2-18; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 [TD 9744] RIN 1545-BJ45, 1545-BJ50, 1545-BJ62, 1545-BJ57 DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2590 RIN 1210-AB72 DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Parts 144, 146, and 147 [CMS-9993-N] RIN 0938-AS56 Clarification of Final Rules for Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections Under the Affordable Care Act AGENCY:

Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; and Centers for Medicare & Medicaid Services, Department of Health and Human Services.

ACTION:

Final rule; clarification.

SUMMARY:

On November 18, 2015, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) published a final rule in the Federal Register titled “Final Rules for Grandfathered Plans, Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, Dependent Coverage, Appeals, and Patient Protections Under the Affordable Care Act” (the November 2015 final rule), regarding, in part, the coverage of emergency services by non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage, including the requirement that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage limit cost-sharing for out-of-network emergency services and, as part of that rule, pay at least a minimum amount for out-of-network emergency services. The American College of Emergency Physicians (ACEP) filed a complaint in the United States District Court for the District of Columbia, which on August 31, 2017 granted in part and denied in part without prejudice ACEP's motion for summary judgment and remanded the case to the Departments to respond to the public comments from ACEP and others. In response, the Departments are issuing this notice of clarification to provide a more thorough explanation of the Departments' decision not to adopt recommendations made by ACEP and certain other commenters in the November 2015 final rule.

DATES:

This clarification is applicable beginning May 3, 2018.

FOR FURTHER INFORMATION CONTACT:

Amber Rivers, Employee Benefits Security Administration, Department of Labor, at (202) 693-8335; Dara R. Alderman, Internal Revenue Service, Department of the Treasury, at (202) 317-5500; and Katherine Carver, Centers for Medicare & Medicaid Services, Department of Health and Human Services, at (410) 786-1565.

SUPPLEMENTARY INFORMATION: I. Background A. The Rulemaking at Issue i. Statutory Background

The Patient Protection and Affordable Care Act (Pub. L. 111-148), was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 2010. These statutes are collectively referred to as “PPACA” in this document. The PPACA reorganized, amended, and added to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act). PPACA also added section 715 to the Employee Retirement Income Security Act (ERISA) and section 9815 to the Internal Revenue Code (the Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and make them applicable to group health plans, and health insurance issuers providing health insurance coverage in connection with group health plans. Accordingly, sections 2701 through 2728 of the PHS Act are incorporated into the Code and ERISA.

Section 2719A of the PHS Act, which is entitled “Patient Protections,” provides requirements relating to coverage of emergency services for non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage 1 and states, in general, that if a group health plan, or a health insurance issuer offering group or individual health insurance coverage, provides or covers any benefits with respect to services in an emergency department of a hospital, the plan or issuer shall cover emergency services—(A) without the need for any prior authorization determination; (B) whether the health care provider furnishing such services is a participating provider with respect to such services; (C) in a manner so that, if such services are provided to a participant, beneficiary, or enrollee—(i) by a nonparticipating health care provider with or without prior authorization; or (ii)(I) such services will be provided without imposing any requirement under the plan for prior authorization of services or any limitation on coverage where the provider of services does not have a contractual relationship with the plan for the providing of services that is more restrictive than the requirements or limitations that apply to emergency department services received from providers who do have such a contractual relationship with the plan; and (II) if such services are provided out-of-network, the cost-sharing requirement (expressed as a copayment amount or coinsurance rate) is the same requirement that would apply if such services were provided in-network.

1 Section 2719A of the PHS Act also provides, for non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage, rules regarding designation of primary care providers, access to pediatric care, and patient access to obstetrical and gynecological care. This document does not address those aspects of section 2719A of the PHS Act.

Therefore, among other things, the statute requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage that cover emergency services to do so even if the provider is not one of the plans' or issuers' “participating provider[s].” 2 In addition, section 2719A of the PHS Act requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to apply the same cost-sharing requirement (expressed as copayments and coinsurance) for emergency services provided out-of-network as emergency services provided in-network; however, the statute does not expressly address how much the out-of-network provider of emergency services must be paid for performing such services by the non-grandfathered group health plan or health insurance issuer offering non-grandfathered group or individual health insurance coverage.

2See section 2719A(b)(1)(B) of the PHS Act.

As background, the amount an out-of-network provider may charge for emergency services may exceed the group health plan's or health insurance issuer's “allowed amount” (the “[m]aximum amount on which payment is based for covered health care services”).3 The allowed amount may be subject to deductibles and other cost-sharing in terms of a fixed-amount per service and/or a coinsurance percentage of the allowed amount. In circumstances in which a provider's charge exceeds the allowed amount, some states allow an out-of-network provider to “balance bill” the patient for the amount of the provider's charge that exceeds the allowed amount.

3See definition of “allowed amount” and “balance billing” in the Uniform Glossary of Health Care Coverage and Medical Terms, https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/sbc-uniform-glossary-of-coverage-and-medical-terms-final.pdf.

Section 2719A of the PHS Act does not prohibit an out-of-network provider from balance billing a participant or beneficiary because although it includes a cost-sharing rule, “cost sharing” is a statutorily defined term that “does not include . . . balance billing amounts for non-network providers” and the cost-sharing requirement in section 2719A(b)(1)(C)(ii)(II) of the PHS Act applies to cost sharing “expressed as a copayment amount or coinsurance rate.” 4

4See PPACA section 1302(c)(3)(B). See also 80 FR 72192, 72212-13 (Nov. 18, 2015).

ii. The Departments' Regulation and Related Comments

On June 28, 2010, the Departments published an interim final rule (IFR) in the Federal Register titled “Patient Protection and Affordable Care Act; Requirements for Group Health Plans and Health Insurance Issuers Under the Patient Protection and Affordable Care Act Relating to Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections,” 75 FR 37188 (the June 2010 IFR). The June 2010 IFR preamble on section 2719A of the PHS Act stated, in part, that, because the statute does not require plans or issuers to cover balance billing amounts, and does not prohibit balance billing, even where the protections in the statute apply, patients may be subject to balance billing. It would defeat the purpose of the protections in the statute if a plan or issuer paid an unreasonably low amount to a provider, even while limiting the coinsurance or copayment associated with that amount to in-network amounts. To avoid the circumvention of the protections of section 2719A of the PHS Act, it is necessary that a reasonable amount be paid before a patient becomes responsible for a balance billing amount. Thus, these interim final regulations require that a reasonable amount be paid for services by some objective standard. In establishing the reasonable amount that must be paid, the Departments had to account for wide variation in how plans and issuers determine both in-network and out-of-network rates. For example, for a plan using a capitation arrangement to determine in-network payments to providers, there is no in-network rate per service.

Accordingly, these interim final regulations considered three amounts: The in-network rate, the out-of-network rate, and the Medicare rate. Specifically, a plan or issuer satisfies the copayment and coinsurance limitations in the statute if it provides benefits for out-of-network emergency services in an amount equal to the greatest of three possible amounts—(1) The amount negotiated with in-network providers for the emergency service furnished; (2) The amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services (such as the usual, customary, and reasonable charges) but substituting the in-network cost-sharing provisions for the out-of-network cost-sharing provisions; or (3) The amount that would be paid under Medicare for the emergency service. Each of these three amounts is calculated excluding any in-network copayment or coinsurance imposed with respect to the participant, beneficiary, or enrollee.5

5 75 FR at 37194 (footnote omitted). For the interim final regulation text, see 75 FR at 37225, 37232, and 37238.

This is sometimes referred to as the “Greatest of Three” or the “GOT” regulation because it sets a floor on the amount non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage are required to pay for out-of-network emergency services under this provision at the greatest of the three listed amounts.

During the comment period for the June 2010 IFR, some commenters were in favor of the GOT regulation while others expressed concerns. Several commenters, including ACEP, objected to the second prong of the GOT regulation, which relates to the method the plan generally uses to determine payments for out-of-network services, such as the usual, customary, and reasonable amount (henceforth referred to as the UCR amount). ACEP's August 3, 2010 comment letter 6 stated the following:

6 Available at https://www.regulations.gov/contentStreamer?documentId=EBSA-2010-0016-0022&attachmentNumber=1&contentType=pdf.

. . . [W]e appreciate the clearly stated acknowledgement that allowing plans and insurers to pay emergency physicians whatever they see fit defeats the purpose of protecting patients from potentially large bills. In that light, we also support development of an objective standard to establish `fair payment.' Insurers know that emergency physicians will see everyone who comes to the ED due to EMTALA responsibilities, and many leverage that fact to impose extremely low reimbursement rates. While a large majority of our members participate in nearly every plan or insurer network in their area, the primary reason they cite for not joining a plan's network is that the plan has arbitrarily offered an in-network payment rate that fails to cover the costs of providing the service. This forces the physicians to balance bill the patients, which often results in an unsatisfactory experience for everyone but the insurer. . .

As noted in the IF rule, `there is wide variation in how plans and issuers determine in [network] and out-of-network rates.' The term `reasonable' is in the eye of the beholder. For many years, usual and customary rates referred to charges or a proportion of charges. This has changed in recent years and physicians, particularly emergency physicians, have had problems with the `black box' approach that commercial insurers have used to determine [the] usual and customary `rates' for out-of-network providers. At this time, we are unaware of a national database that is widely available and provides timely data for objective comparisons of charges and/or costs that could be used to implement this part of the regulation. A new database, perhaps the FAIR Health data[base] that is currently being developed as a result of the settlement with Ingenix, may prove to be more timely and accurate, but any database used to establish usual and customary reasonable rates will require transparent validation, monitoring, and active enforcement by state and federal insurance officials.”

Other groups, such as Advocacy for Patients with Chronic Illness, Inc. and Lybba, the Emergency Department Practice Management Association, the American Medical Association, the American Hospital Association, the Texas Medical Association, the Healthcare Association of New York State, and the California Chapter of ACEP, submitted similar comments expressing their concern about the lack of transparency and potential for manipulation of rates under the second prong of the GOT regulation. Like ACEP, several of these commenters referenced the FAIR Health database as a potential alternative solution.7

7 The FAIR Health Database was created by FAIR Health, an independent nonprofit that collects data for and manages the nation's largest database of privately billed health insurance claims. See https://www.fairhealth.org/about-us.

On November 18, 2015, the Departments finalized the regulation under section 2719A of the PHS Act, including the GOT regulation (80 FR 72192). The November 2015 final rule adopted the GOT regulation without substantive revision from the June 2010 IFR and incorporated a clarification that had been issued in subregulatory guidance.8 In the November 2015 final rule, the Departments reiterated the need for the GOT regulation, and in response to the comments described above regarding the GOT regulation, the Departments stated that “[s]ome commenters expressed concern about the level of payment for out-of-network emergency services and urged the Departments to require plans and issuers to use a transparent database to determine out-of-network amounts. The Departments believe that this concern is addressed by our requirement that the amount be the greatest of the three amounts specified in [the GOT regulation].” 9

8 The final regulations incorporated guidance that had been provided in FAQs about Affordable Care Act Implementation (Part I), Q15, available at www.dol.gov/ebsa/faqs/faq-aca.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs.html. The FAQ and final regulations provide that if state law prohibits balance billing, or in cases in which a group health plan or health insurance issuer is contractually responsible for balance billing amounts, plans and issuers are not required to satisfy the GOT regulation, but may not impose any copayment or coinsurance requirement for out-of-network emergency services that is higher than the copayment or coinsurance requirement that would apply if the services were provided in-network. See 26 CFR 54.9815-2719A(b)(3)(iii); 29 CFR 2590.715-2719A(b)(3)(iii); and 45 CFR 47.138(b)(3)(iii).

9 80 FR 72192, 72213 (Nov. 18, 2015).

B. Other Guidance

In response to concerns about transparency with respect to the second prong of the GOT regulation raised by ACEP in its comment and in subsequent communications to the Departments, on April 20, 2016, the Departments issued Frequently Asked Questions About Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women's Health and Cancer Rights Act Implementation, which addressed, in part, the GOT regulation.10 In Question & Answer number 4, the Departments clarified that a group health plan or health insurance issuer of group or individual health insurance coverage is required to disclose how it calculates the amounts under the GOT regulation, including the UCR amount. These disclosure requirements would also apply to a request for disclosure of payment amounts for in-network providers. Specifically, for group health plans subject to ERISA, documentation and data used to calculate each of the amounts under the GOT regulations for out-of-network emergency services, including the UCR amount, are considered to be instruments under which the plan is established or operated and would be subject to the disclosure provisions under section 104(b) of ERISA and 29 CFR 2520.104b-1, which generally require that such information be furnished to plan participants (or their authorized representatives) within 30 days of request.11 In addition, the Department of Labor claims procedure regulations, as well as the internal claims and appeals and external review requirement under section 2719 of the PHS Act, which apply to both ERISA and non-ERISA non-grandfathered group health plans and health insurance issuers of non-grandfathered group or individual coverage, set forth rules regarding claims and appeals, including the right of a claimant (or the claimant's authorized representative) upon appeal of an adverse benefit determination (or a final internal adverse benefit determination) to be provided upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits, and a failure to provide or make payment of a claim in whole or in part is an adverse benefit determination.12

10See https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-31.pdf, or https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-31_Final-4-20-16.pdf.

11See DOL Advisory Opinion 96-14A (July 31, 1996). See also FAQs about Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation, Q12, available at www.dol.gov/ebsa/faqs/faq-aca29.html and www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-XXIX.pdf, providing that a plan's or issuer's characterization of information as proprietary or commercially valuable cannot be a basis for non-disclosure.

12 29 CFR 2560.503-1, 26 CFR 54.9815-2719, 29 CFR 2590.715-2719, and 45 CFR 147.136. For additional requirements for the full and fair review standard that applies under PHS Act section 2719, in addition to 29 CFR 2560.503-1(h)(2), see 26 CFR 54.9815-2719(b)(2)(ii)(C), 29 CFR 2590.715-2719(b)(2)(ii)(C), and 45 CFR 147.136(b)(2)(ii)(C) and (b)(3)(ii)(C).

C. The Court's Remand Order

On May 12, 2016, ACEP filed a lawsuit against the Departments, asserting that the final GOT regulation should be invalidated because it does not ensure a reasonable payment for out-of-network emergency services as required by the statute, and that the Departments did not respond meaningfully to ACEP's comments about purported deficiencies in the regulation.13

13 See https://www.acep.org/Legislation-and-Advocacy/Regulatory/ACEPvsHHS_051216/.

Following briefing by both parties, on August 31, 2017, the United States District Court for the District of Columbia issued a memorandum opinion that granted in part and denied in part without prejudice ACEP's motion for summary judgment, and remanded the case to the Departments for further explanation of the November 2015 final rule.14 The court concluded that the Departments did not adequately respond to comments and proposed alternatives submitted by ACEP and others regarding perceived problems with the GOT regulation. In particular, the court stated that the Departments' response in the November 2015 final rule “to numerous comments raising specific concerns about the method used in the GOT regulation for determining the amounts insurers would be required to pay for out-of-network emergency medical services—e.g., the rates' lack of transparency or their vulnerability to manipulation” did not “seriously respond to the actual concerns raised about the particular rates, and it ignore[d] altogether the proposed alternative of using a database to set payment.” The court stated that its holding was “a narrow one,” relating “only to the sufficiency of the Departments' response to comments and proposed alternatives.”

14See American College of Emergency Physicians v. Price, et al., 264 F. Supp. 3d 89 (D.D.C. 2017).

The court did not vacate the November 2015 final rule but ordered that “this matter is remanded to the Departments of Health and Human Services, Labor, and the Treasury so that they can adequately address the comments and proposals at issue in this case. On remand, the Departments are free to exercise their discretion to supplement their explanation as they deem appropriate and to reach the same or different ultimate conclusions. At a minimum; however, the Departments are required to respond to [ACEP's] comments and proposals in a reasoned manner that `enable[s] [the Court] to see what major issues of policy were ventilated . . . and why the agency reacted to them as it did.' ” 15

15Id.

The Departments are issuing this document to provide the additional consideration required by the court's remand order. Specifically, the Departments are responding more fully to ACEP's written comment dated August 3, 2010 in reference to the June 2010 IFR.

II. Further Consideration of the Departments' Final Rule in Response to the Court's Remand Order

In light of the statutory language in section 2719A of the PHS Act and the totality of the comments received in response to the June 2010 IFR, the Departments continue to believe that the implementing regulations provide a reasonable and transparent methodology to determine appropriate payments by non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage for out-of-network emergency services. ACEP's proposal that the GOT regulation require the development of a new database and/or utilization of a publicly-available database to set UCR amounts would require the Departments to extend the scope of their authority under section 2719A of the PHS Act beyond the establishment of a minimum payment amount to facilitate the cost-sharing requirements in section 2719A(b) of the PHS Act, to the development of specific provider reimbursement rates for group health plans and health insurance issuers, which is an area that, up to this point, has been reserved for the states, issuers, and health plans. Accordingly, the Departments decline to adopt such a requirement. Finally, even if the Departments were prepared to extend their authority in this manner, creating and maintaining a database or assessing, validating, and monitoring publicly available databases would be costly and time-consuming, and there is no indication in either case that such a database would provide a better method for determining UCR amounts than the methods group health plans and health insurance issuers currently use.

A. GOT Regulation Is Reasonable and Transparent

The Departments believe that ACEP and other commenters did not provide adequate information to support their assertion that the methods used for determining the minimum payment for out-of-network emergency services under the GOT regulation are not sufficiently transparent or reasonable. In developing the GOT regulation, the Departments accounted for wide variation in how group health plans and health insurance issuers determine both in-network and out-of-network rates, and made a determination to base the GOT criteria on existing provisions of federal law. The Departments have not received any information regarding ACEP's concerns, as part of the comment record or otherwise, that persuaded us that these standards are insufficiently transparent or otherwise unreasonable, and we conclude that the methodology for determining payment amounts under all three prongs of the GOT regulation is sufficiently transparent and reasonable.

Under the GOT regulation, the three prongs work together to establish a floor on the payment amount for out-of-network emergency services, and each state generally retains authority to set higher amounts for health insurance issued within the state. The GOT regulation requires that a group health plan or health insurance issuer must pay the highest amount determined under the three prongs, which reflect amounts that the federal government itself or group health plans and health insurance issuers have established as reasonable.

The Departments determined the GOT methodology was sufficiently transparent by taking into account other federal laws which require disclosure in certain circumstances. Specifically, a group health plan subject to ERISA must disclose how it calculates a payment amount under the GOT regulation, including payment amounts to in-network providers, and the method the group health plan or health insurance issuer used to determine the UCR amount to a claimant or the claimant's authorized representative.16

16See DOL Advisory Opinion 96-14A (July 31, 1996). See also FAQs about Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women's Health and Cancer Rights Act Implementation, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-31.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-31_Final-4-20-16.pdf.

Additionally, as described above, under the internal claims and appeals and external review requirements of section 2719 of the PHS Act, which apply to plans that are subject to the protections of section 2719A of the PHS Act, a claimant (or the claimant's authorized representative) upon appeal of an adverse benefit determination must be provided reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits, including information about the plan's determination of the UCR amount. A failure to provide or make payment of a claim in whole or in part is considered an adverse benefit determination.17

17 26 CFR 54.9815-2719(b); 29 CFR 2590.715-2719(b); 45 CFR 147.136(b). See also footnote 11.

Further, the Medicare rate is transparent because the Medicare statute's provisions on setting physician payment rates are objective and detailed, and provide payment at a level that reflects the relative value of a service.18 Medicare rates for physicians' services are established and reviewed every year through a rulemaking in which all physicians and other stakeholders are invited to submit public comment on the agency's proposed calculations.19

18See Social Security Act Section 1848(b)(1).

19See id.

As a result, patients who are to be protected by the statute have a right to transparent access to the calculations used to arrive at the allowed amount for out-of-network emergency services, and a provider can obtain this information as a patient's authorized representative.20 To the extent that a provider is not able to obtain these calculations, the Departments believe that the patients' ability to obtain and to potentially challenge the information through litigation or the appeals process creates adequate safeguards with respect to ACEP's concerns regarding health insurance issuer manipulation of UCR amounts. This provides sufficient protections, especially in light of the focus of section 2719A of the PHS Act on the protection of patients, rather than physicians. For all these reasons, the Departments believe that the methodology in the GOT regulations is sufficiently transparent and reasonable.

20See 29 CFR 2560.503-1(b)(4). See also 26 CFR 54.9815-2719(b)(2)(i), 29 CFR 2590.715-2719(b)(2)(i), and 45 CFR 147.136(b)(2)(i), requiring non-grandfathered group health plans and issuers to incorporate the internal claims and appeals processes set forth in 29 CFR 2560.503-1.

B. Creation of a Database or Use of a Publicly Available Database Is Problematic

The creation and use of ACEP's proposed database on payments and charges would be problematic in a number of ways. The establishment and maintenance of a publicly available database would be time-consuming, would require contracting assistance, and would be costly and burdensome to maintain. Furthermore, there is no indication that such a database would be a better barometer of UCR amounts than the current methodology used by group health plans and health insurance issuers.

ACEP's suggestion that the Departments mandate the use of an existing database (for example, FAIR Health) presents similar issues. As an initial matter, determining which existing database (if any) is appropriate for calculating UCR, and then monitoring the database, would be costly and time-consuming. And, as with ACEP's suggestion that the Departments create a database, there is no indication that a publicly available database would be a better barometer of UCR amounts than the current methodology used by group health plans and health insurance issuers.

Thus, the Departments concluded in the November 2015 final rule, and still maintain, that the existing GOT regulation provides a statutorily supportable, and also a more practical, and cost-effective approach for group health plans and health insurance issuers to determine the required minimum payment amounts. Further, the Departments did not have a mandate to require plans and issuers to use different databases for the purposes of implementing the Patient Protections statutory requirements from what they may currently use, and the Departments decline to mandate the use of one particular database in the limited context of this rulemaking. It is the Departments' view that it is appropriate to continue to reserve the determination of the relative merits of each database to the discretion of the states, insurers, and health plans.21

21 The website of the All Claims Payable Database Council lists 19 states with legislation enabling the collection of claims and databases. https://www.apcdcouncil.org/apcd-legislation-state.

III. Conclusion

The Departments believe that the November 2015 final rule provides a reasonable methodology to determine appropriate payments by group health plans and health insurance issuers for out-of-network emergency services, in light of the statutory language in section 2719A of the PHS Act and the totality of the comments received in response to the June 2010 IFR. The Departments also believe that the three prongs of the GOT regulation are sufficiently transparent. ACEP's proposal that the GOT regulation require the development of a database or utilization of a publicly available database to set UCR amounts would require the Departments to extend the scope of authority provided under section 2719A of the PHS Act to intrude on state authority and group health plan and health insurance issuer discretion; and even if the Departments were prepared to extend their authority in this manner, the establishment and maintenance of a database or the assessment, validation, and monitoring of a publicly available database would be costly and time-consuming. Further, there is no indication that such a database would provide a better method for determining UCR amounts than the methods group health plans and health insurance issuers currently use. The Departments therefore decline to adopt the suggestions of ACEP and other commenters that made similar suggestions regarding the GOT regulation.

IV. Collection of Information Requirements

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

Kirsten B. Wielobob, Deputy Commissioner for Services and Enforcement, Internal Revenue Service. Approved: April 25, 2018. David J. Kautter, Assistant Secretary of the Treasury (Tax Policy). Approved: April 25, 2018. Signed this 25th day of April 2018. Preston Rutledge, Assistant Secretary, Employee Benefits Security Administration, Department of Labor. Dated: April 25, 2018. Seema Verma, Administrator, Centers for Medicare & Medicaid Services. Dated: April 27, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
[FR Doc. 2018-09369 Filed 4-30-18; 4:15 pm] BILLING CODE 4120-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0397] RIN 1625-AA00 Safety Zone; Straits of Mackinac, Mackinaw City, MI AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for navigable waters within a 500-yard radius of construction equipment vessels conducting operations in the Straits of Mackinac. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by surveillance and repair work to electric utility cables that cross the Straits of Mackinac. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sault Sainte Marie or a designated representative.

DATES:

This rule is effective from May 3, 2018 until October 30, 2018. It will be enforced with actual notice from April 30, 2018, until May 3, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0397 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LTJG Sean V. Murphy, Sector Sault Sainte Marie Waterways Management Chief, U.S. Coast Guard; telephone 906-635-3319, email [email protected].

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because visual imagery and repair of damage to the utility cables is imperative to further mitigate any risks to the environment and the public. Emergent conditions require immediate marine surveying of the area due to damage to utility cables in the Straits of Mackinac. It is impractical to publish an NPRM because of the urgent need to survey the utility cables damaged.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed to obtain visual imagery of damage to the utility cables in order to successfully effect repairs and further mitigate any risks to the environment and the public.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sault Sainte Marie (COTP) has determined that construction vessels operating in the Straits of Mackinac, will be a safety and navigation concern for any vessel within a 500-yard radius of the operations. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the operations are ongoing.

IV. Discussion of the Rule

This rule establishes a safety zone from April 30, 2018 until October 30, 2018. The safety zone will cover all navigable waters within 500 yards of construction equipment vessel working and surveying damaged utility cables in the Straits of Mackinac. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while operations are ongoing. The zone will be enforced at various times throughout this period. Local Broadcast Notice to mariners, via VHF-FM marine channel 16, will notify mariners when the construction vessels are conducting operations and the zone is being enforced. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

This regulatory action determination is based on the size, and location of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Straits of Mackinac during a time of year when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

B. Impact on Small Entities

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

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

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

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

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 500 yards of construction equipment vessels in the Straits of Mackinac surveying and conducting repairs to damaged utility cables. It is categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

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

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

2. Add § 165.T09-0397 to read as follows:
§ 165.T09-0397 Safety Zone; Straits of Mackinac, Mackinaw City, MI.

(a) Location. The following area is a safety zone: All navigable waters of the Straits of Mackinac, from surface to bottom, within a 500 yard radius around construction equipment vessels.

(b) Definitions. As used in this section, designated representative means a Coast Guard petty officer, warrant officer, or commissioned officer and any Federal, State, and local officer designated by or assisting the Captain of the Port Sault Sainte Marie (COTP) in the enforcement of the safety zone.

(c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF radio channel 16 or call 906-635-3319. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

(d) Enforcement periods. This section is effective from April 30, 2018, until October 30, 2018. It will be enforced while construction vessels operate within the designated location in paragraph (a) of this section. Local Broadcast Notice to mariners via VHF-FM marine channel 16 will notify mariners when vessels are conducting operations.

Dated: April 30, 2018. Marko R. Broz, Captain, U.S. Coast Guard, Captain of the Port, Sector Sault Sainte Marie.
[FR Doc. 2018-09407 Filed 5-2-18; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0851; FRL-9977-02—Region 6] Approval and Promulgation of Implementation Plans; Louisiana; Interstate Transport Requirements for the 2012 PM2.5 NAAQS AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving portions of Louisiana's State Implementation Plan (SIP) submittal and a technical supplement, that address a CAA requirement that SIPs account for potential interstate transport of air pollution that significantly contributes to nonattainment or interferes with maintenance of the 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS) in other states. EPA finds that emissions from Louisiana sources do not contribute significantly to nonattainment in, or interfere with maintenance by, any other state with regard to the 2012 PM2.5 NAAQS.

DATES:

This rule is effective on June 4, 2018.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2015-0851. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT:

Sherry Fuerst, 214-665-6454, [email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background

The background for this action is discussed in detail in our February 1, 2018 proposal (83 FR 4617). In that document we proposed to approve portions of Louisiana's State Implementation Plan (SIP) submittal and a technical supplement, that address a CAA requirement that SIPs account for potential interstate transport of air pollution that significantly contributes to nonattainment or interferes with maintenance of the 2012 PM2.5 NAAQS in other states. We proposed to determine that emissions from Louisiana sources do not contribute significantly to nonattainment in, or interfere with maintenance by, any other state with regard to the 2012 PM2.5 NAAQS.

On March 6, 2018, we received six anonymous public comments on the proposed rulemaking action. The comments are posted to the docket (EPA-R06-OAR-2015-0851). Several of the commenters provided the air quality index for March 2, 2018 for various locations across the USA and compared them to various locations across Asia. Other commenters discussed the shortcomings of the tariffs and conflict minerals law. Such comments are not relevant to the Clean Air requirements being addressed here and are outside the scope of this specific rule making action.

II. Final Action

We are approving the portions of the December 11, 2015 Louisiana SIP revision pertaining to emissions that significantly contribute to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in other states and the supplemental information provided to us on July 7, 2017. We find that emissions from Louisiana sources do not contribute significantly to nonattainment in, or interfere with maintenance by, any other state with regard to the 2012 PM2.5 NAAQS.

III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.

Dated: April 25, 2018. Anne Idsal, Regional Administrator, Region 6.

40 CFR part 52 is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart E—Louisiana 2. In § 52.970, in paragraph (e), the second table titled “EPA Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures” is amended by adding an entry at the end for “Interstate transport for the 2012 PM2.5 NAAQS (contribute to nonattainment or interfere with maintenance)” to read as follows:
§ 52.970 Identification of plan

(e) * * *

EPA-Approved Louisiana Nonregulatory Provisions and Quasi-Regulatory Measures Name of SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal/
  • effective
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Interstate transport for the 2012 PM2.5 NAAQS (contribute to nonattainment or interfere with maintenance) Statewide 12/11/2015
  • 7/7/2017
  • 5/3/2018, [Insert Federal Register citation] Adequate provisions prohibiting emissions which will contribute significantly to nonattainment in, or interfere with maintenance of the 2012 PM2.5 NAAQS in any other State.
    [FR Doc. 2018-09314 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 431 [CMS-6068-F2] RIN 0938-AS74 Medicaid/CHIP Program; Medicaid Program and Children's Health Insurance Program (CHIP); Changes to the Medicaid Eligibility Quality Control and Payment Error Rate Measurement Programs in Response to the Affordable Care Act; Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Correcting amendment.

    SUMMARY:

    This document corrects a technical error that appeared in the final rule published in the Federal Register on July 5, 2017 entitled “Medicaid/CHIP Program; Medicaid Program and Children's Health Insurance Program (CHIP); Changes to the Medicaid Eligibility Quality Control and Payment Error Rate Measurement Programs in Response to the Affordable Care Act” (hereinafter referred to as the “PERM final rule”).

    DATES:

    This correction is effective May 3, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Bridgett Rider, (410) 786-2602.

    SUPPLEMENTARY INFORMATION: I. Background

    In FR Doc. 2017-13710 (82 FR 31158), there was a technical error that is identified and corrected in this correcting document. The provision in this correction document is effective as if it had been included in the document published in the Federal Register on July 5, 2017. Accordingly, the corrections are applicable beginning August 4, 2017.

    II. Summary of Error in Regulation Text

    In the regulation text, we inadvertently omitted the removal of § 431.802, which we discussed on page 31161 of the final rule.

    III. Waiver of Proposed Rulemaking, 60-Day Comment Period, and Delay in Effective Date

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

    We believe that this correcting document does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements. The document corrects technical errors in the PERM final rule, but does not make substantive changes to the policies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the information in the PERM final rule accurately reflects the policies adopted in that document.

    In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate information in as timely a manner as possible, and to ensure that the PERM final rule accurately reflects our policies. Furthermore, such procedures would be unnecessary, as we are not making substantive changes to our policies, but rather, we are simply implementing correctly the policies that we previously proposed, requested comment on, and subsequently finalized. This correcting document is intended solely to ensure that the PERM final rule accurately reflects these policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

    List of Subjects in 42 CFR Part 431

    Grant programs—health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements.

    Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendment:

    PART 431—STATE ORGANIZATION AND GENERAL ADMINISTRATION 1. The authority citation for part 431 continues to read as follows: Authority:

    Sec. 1102 of the Social Security Act, (42 U.S.C. 1302).

    § 431.802 [Removed]
    2. Section 431.802 is removed. Dated: April 26, 2018. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2018-09347 Filed 5-2-18; 8:45 am] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 17-79; FCC 18-30] Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document (Order), the Federal Communications Commission (The Commission or FCC) adopts rules to streamline the wireless infrastructure siting review process to facilitate the deployment of next-generation wireless facilities. As part of the FCC's efforts, the agency consulted with a wide range of communities to determine the appropriate steps needed to enable the rapid and efficient deployment of next-generation wireless networks—or 5G—throughout the United States. The Order focuses on ensuring the Commission's rules properly address the differences between large and small wireless facilities, and clarifies the treatment of small cell deployments. Specifically, the Order: Excludes small wireless facilities deployed on non-Tribal lands from National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) review, concluding that these facilities are not “undertakings” or “major Federal actions.” Small wireless facilities deployments continue to be subject to currently applicable state and local government approval requirements. The Order also clarifies and makes improvements to the process for Tribal participation in section 106 historic preservation reviews for large wireless facilities where NHPA/NEPA review is still required; removes the requirement that applicants file Environmental Assessments solely due to the location of a proposed facility in a floodplain, as long as certain conditions are met; and establishes timeframes for the Commission to act on Environmental Assessments. These actions will reduce regulatory impediments to deploying small cells needed for 5G and help to expand the reach of 5G for faster, more reliable wireless service and other advanced wireless technologies to more Americans.

    DATES:

    Effective July 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Aaron Goldschmidt, Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, (202) 418-7146, email [email protected].

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Second Report and Order (R&O), WT Docket No. 17-79 adopted March 22, 2018 and released March 30, 2018. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW, Room CY-B402, Washington, DC 20554; the contractor's website, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-5563, or email [email protected]. Copies of the R&O also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket 17-79. Additionally, the complete item is available on the Federal Communications Commission's website at http://www.fcc.gov.

    I. Excluding Small Wireless Facilities From NHPA and NEPA Review

    1. In this Order, the FCC makes a threshold legal determination, and amends § 1.1312 of its rules to clarify, that the deployment of small wireless facilities by non-Federal entities is neither an “undertaking” within the meaning of the National Historic Preservation Act (NHPA) nor a “major Federal action” under the National Environmental Protection Act (NEPA). Although the FCC clarifies in the Order that the deployment of small wireless facilities on non-Tribal lands therefore will not be subject to certain Federal historic preservation and environmental review obligations, the FCC leaves undisturbed its existing requirement that the construction and deployment of larger wireless facilities, including those deployments that are regulated in accordance with the FCC's antenna structure registration (ASR) system or subject to site-by-site licensing, must continue to comply with those environmental and historic preservation review obligations.

    2. Section 106 of the NHPA mandates historic preservation review for “undertakings,” while NEPA mandates environmental review for “major Federal actions.” Courts have treated these two categories as largely coextensive, and have recognized that the question of what constitutes an “undertaking” or a “major Federal action” is an objective inquiry that focuses on the degree of Federal control over a particular deployment. The FCC has previously determined, and the DC Circuit has affirmed, that wireless facility deployments associated with geographic area licenses may constitute “undertakings” in two limited contexts: (1) Where facilities are subject to the FCC's tower registration and approval process pursuant to section 303(q) of the Communications Act because they are over 200 feet or are near airports, and (2) where facilities not otherwise subject to pre-construction authorization are subject to § 1.1312(b) of the FCC's rules and thus must obtain FCC approval of an environmental assessment prior to construction. The FCC has referred to the rule governing this latter category of deployments as the its retention of a “limited approval authority.” While the DC Circuit held that the FCC acted within its discretion in classifying these two categories of actions as Federal undertakings, it noted that the FCC had not engaged in extended analysis of the issue and did not foreclose the FCC from revisiting the scope of these categories at a later time.

    3. The FCC clarifies, through amendment of its rules, that the deployment of small wireless facilities by non-Federal entities does not constitute an “undertaking” or “major Federal action,” and thus does not require Federal historic preservation or environmental review under the NHPA or NEPA. Small wireless facilities that meet its definition here are not subject to ASR requirements under section 303(q) of the Act. Accordingly, the only remaining basis on which they could be considered an “undertaking” or “major Federal action” is if they are subject to the “limited approval authority” under § 1.1312(b) of the FCC's rules. Through this Order, the FCC clarifies that deployments of small wireless facilities do not fall within the scope of § 1.1312(b). Having made that threshold determination, there is no longer any cognizable Federal control over such deployments for purposes of the NHPA or NEPA, and hence, those deployments are neither “undertakings” nor “major Federal actions” subject to those Federal historic preservation or environmental review obligations.

    4. The FCC bases this public interest analysis on a variety of considerations. Removing § 1.1312(b)'s trigger of environmental and historic preservation review for small wireless facilities will help further Congress's and the FCC's goals of facilitating the deployment of advanced wireless services (such as 5G) and removing regulatory burdens that unnecessarily raise the cost and slow the deployment of the modern infrastructure used for those services. To be able to meet current and future needs, including deployment of advanced 4G and 5G networks, providers will need to deploy tens of thousands of small wireless facilities across the country over the coming years. It would be impractical and extremely costly to subject each individual small facility deployment to the same requirements that the Commission imposes on macro towers. A report prepared by Accenture Strategy for CTIA found that 29 percent of wireless deployment costs are related to NHPA/NEPA regulations when reviews are required. There is also no legitimate reason why next-generation technology should be subjected to many times the regulatory burdens of its 3G and 4G predecessors.

    5. This decision is consistent with the history of § 1.1312. When the FCC adopted that section, its focus was primarily on the deployment of macrocells and the relatively large towers that marked the deployment of prior generations of wireless service for which site-specific preconstruction review was common even in the absence of a Section 319 construction permit. Those macrocells and large towers supported legacy technology and because of their size were more likely to have an appreciable environmental impact. The world of small wireless facility deployment is materially different from the deployment of macrocells in terms of the size of the facility, the importance of densification, and the lower likelihood of impact on surrounding areas. The Commission simply could not have anticipated that advanced wireless services would require the densification of small deployments over large geographic areas that leave little to no environmental footprint. Amending § 1.1312 to make clear that it does not apply to small wireless facility deployment accounts for this reality.

    6. This decision is consistent with the FCC's treatment of small wireless facility deployments in other contexts. For example, under the Collocation Nationwide Programmatic Agreement (NPA), it already excludes many facilities that meet size limits similar to those defined below from historic preservation review. This decision builds upon the insight underlying these existing rules that small wireless facilities pose little or no risk of adverse environmental or historic preservation effects.

    7. Under existing practice, the FCC currently does not subject many types of wireless facilities to environmental and historic preservation compliance procedures. For example, the FCC has not applied these review requirements to consumer signal boosters, Wi-Fi routers, and unlicensed equipment used by wireless internet service providers. Thus, the FCC has already, in effect, made a public interest determination that, even if it had the legal authority to do so, the cost of requiring NEPA and NHPA compliance for certain types of facilities outweighs the benefits. This action simply applies that existing paradigm to current circumstances.

    8. Fifth, while its amendment of § 1.1312 to exclude small wireless facility deployments eliminates the only basis under CTIA and Commission precedent for treating such deployments as undertakings or major Federal actions subject to NHPA and NEPA review, the FCC concludes that the costs of conducting such review in the context of small wireless facilities outweigh any attendant benefits. The record in this proceeding demonstrates significant burdens on small facility deployment emanating from these requirements. The FCC expects these burdens to grow exponentially, as an ever-increasing number of small wireless facilities are deployed. The FCC also finds little environmental and historic preservation benefit associated with requiring environmental or historic preservation assessments for small wireless facility deployment. While “wireless providers will need flexibility to strategically place thousands of [distributed antenna system] and small cell facilities throughout the country in the next few years,” Commission requirements to conduct environmental and historic preservation review pose significant obstacles to that deployment. The FCC concludes that any marginal benefit that NHPA and NEPA review might provide in this context would be outweighed by the benefits of more efficient deployment of small wireless facilities and the countervailing costs associated with such review. Accordingly, the public interest is not served by requiring small wireless facilities to continue to adhere to this costly review process.

    9. This decision is limited to small wireless facilities that are deployed to provide service under geographic area licenses and are not subject to ASR. Thus, the FCC does not address whether, or the extent to which, site-by-site licensing or ASR render construction of the licensed or registered facilities a major Federal action or undertaking. The FCC also does not revisit the Commission's previous analyses as applied to facilities falling outside the scope of small wireless facilities covered by this Order. To the extent the Wireless Infrastructure NPRM (82 FR 21761 (May 10, 2017)) sought comment on these questions, they remain pending and may be considered in future items. In addition, transmissions from all facilities that operate pursuant to geographic area licenses remain subject to its rules governing radio frequency (RF) emissions exposure.

    A. Statutory Background and Commission Precedent

    10. Section 106 of the NHPA requires Federal agencies to “take into account” the effects of their “federal or federally assisted undertaking[s]” on historic properties. An undertaking is defined by the statute as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including . . . those requiring a Federal permit, license, or approval[.]” Court precedent and Advisory Council on Historic Preservation (ACHP) guidance make clear that there must be some degree of Federal involvement for something to constitute an “undertaking” under the NHPA. By rule and the Commission's 2004 Order (70 FR 556 (Jan. 4, 2005)), the FCC has authority to determine what activities constitute Federal undertakings.

    11. NEPA requires Federal agencies to identify and evaluate the environmental effects of proposed “major Federal actions.” Similar to an “undertaking,” a “major Federal action” under NEPA includes, among other things, “projects and programs entirely or partly . . . approved by federal agencies.” Courts consider “major Federal actions” under NEPA to be largely equivalent to “undertakings” under the NHPA. Accordingly, like the NHPA's requirements, “[t]he requirements of NEPA apply only when the federal government's involvement in a project is sufficient to constitute `major federal action.' ”

    12. As relevant here, the Commission has historically identified undertakings and major Federal actions, and thus imposed corresponding NHPA and NEPA obligations, based on the Commission's activities in two areas: ASR and facilities subject to the approval requirement in § 1.1312 of its rules. Specifically, the Commission has required environmental and historic preservation review via two regulatory approval processes. The first applies only to the subset of towers that exceed 200 feet or are in the vicinity of an airport and thus are required to “be `registered' ” with the Commission pursuant to section 303(q) of the Communications Act. The second applies where facilities that are not otherwise subject to pre-construction Commission authorization are nonetheless required to obtain Commission approval of an environmental assessment prior to construction pursuant to § 1.1312(b) of the Commission's rules. The Commission has treated its approvals in each of these contexts as rising to the level of “undertakings” or “major Federal actions” that trigger NHPA and NEPA. And the Commission's approach has been affirmed by the U.S. Court of Appeals for the DC Circuit, which held that the Commission acted within its discretion in identifying its pre-construction antenna structure registration requirements under section 303(q) of the Act and its § 1.1312 limited-approval authority as undertakings for purposes of NHPA.

    13. The history of the FCC's involvement in this area begins in 1974, when it first promulgated rules implementing NEPA. At that time, FCC licenses provided carriers with authority to operate from a specific site or physical location, and Federal law generally required the FCC to issue the provider a construction permit for that site before the agency granted a license to operate. The Commission thus had a significant, Federal role in approving construction of specific wireless communications facilities in a given location, and it treated these activities as undertakings under the NHPA and major Federal actions under NEPA.

    14. In 1982, Congress altered this framework. In particular, it eliminated the construction permit requirement for certain wireless licenses, while permitting the Commission to retain the requirement if it determined that the “public interest, convenience, and necessity” required it. As a result of this and associated regulatory changes, the FCC now licenses many services, including most licensees operating in commercial wireless services, to transmit over a particular band of spectrum within a wide geographic area without further limitation as to transmitter locations.

    15. Nonetheless, the FCC has continued by rule to require certain wireless providers previously subject to construction permit requirements to comply with environmental and historic preservation review procedures without regard to the particular type of deployment at issue. In 1990, the Commission amended § 1.1312 of its rules, so that that where construction of a Commission-regulated radio communications facility is permitted without prior Commission authorization (i.e., without a construction permit), the licensee must nonetheless comply with historic preservation and environmental review procedures. As the DC Circuit observed, the Commission's 1990 decision “never explicitly addresse[d] whether tower construction is a Federal undertaking under section 106 of the NHPA.” Nor did it expressly address whether such construction was a major Federal action under NEPA. Instead, the Commission's adoption of § 1.1312 was grounded in the “ `public interest benefits of ensuring, in compliance with Federal environmental statutes, that no potentially irreversible harm to the environment occurs.' ” The Commission apparently concluded that this public interest consideration sufficed for the agency to use the § 1.1312 process to trigger NEPA and NHPA review.

    16. In 1995, the Commission expressly concluded that “registering a structure,” that is, its tower registration process, “constitutes a `federal action' or `federal undertaking' ” under the relevant Federal environmental and historic preservation review statutes. However, as the DC Circuit observed, that 1995 decision “contains no analysis of relevant statutes and regulations in support of that conclusion.”

    17. In 2004, the Commission addressed the NHPA again in the context of establishing a programmatic agreement. In that decision, the Commission offered two bases for determining that the construction of communications towers and deployment of antennas require compliance with NHPA. First, the Commission relied on the agency's tower registration process and authority. It indicated that this process “may be viewed as effectively constituting an approval process within the Commission's section 303(q) authority.” Under section 303(q), the Commission has chosen to implement rules requiring that towers meeting certain height and location criteria be registered with the Commission prior to construction. Second, as described above, the Commission relied on what it has described as a “limited approval authority.” Specifically, while section 319(d) states that a construction permit shall not be required for the deployment of certain facilities, the Commission read what it described as “section 319(d)'s public interest standard” as allowing the Commission to require covered entities to nonetheless comply with environmental and historic preservation processing requirements. The Commission pointed in particular to § 1.1312 of the its rules, which states that “[i]f a facility” for which no Commission authorization prior to construction is required “may have a significant environmental impact” then the licensee must submit an environmental assessment to the Commission and the Commission must then rule on that assessment prior to initiation of construction of the facility.

    18. At the same time, the Commission stated that the agency “did not seek comment on the question whether the Commission should, assuming that it possesses statutory authority to do so, continue its current treatment of tower construction as an `undertaking' for purposes of the NHPA.” Therefore, the Commission “decline[d] to revisit” that question. Continuing, the Commission observed that “[u]nless and until we undertake the reexamination and determine that it is appropriate to amend its rules . . . we believe its existing policies treating tower construction as an undertaking under the NHPA reflect a permissible interpretation of the Commission's authority under section 319(d) of the Act to issue construction permits for radio towers, as well as its authority under section 303(q) governing painting and/or illumination of towers for purposes of air navigation safety.”

    19. Two Commissioners dissented in part from the agency's 2004 decision, expressing the view that, in the absence of a construction permit or a site-by-site license, the Commission's retention of jurisdiction to require historic preservation review exceeded its statutory authority. On appeal, the U.S. Court of Appeals for the DC Circuit upheld the Commission's decision against a challenge that it was arbitrary and capricious.

    20. Most recently, in 2014, the FCC found “no basis to hold categorically that small wireless facilities such as DAS and small cells are not Commission undertakings.” But the Commission there was only evaluating the operation of the rule, by its terms, against the backdrop of the specific evidence in the record on that item. The Commission did not consider whether, in the first instance, it could amend its rules to clarify that small wireless facilities are not Commission undertakings or whether the public interest would be served by doing so.

    21. In the Wireless Infrastructure NPRM, the Commission sought comment on updating its approach to environmental and historic preservation review. Among other things, the Commission “invite[d] comment on whether we should revisit the Commission's interpretation of the scope of its responsibility to review the effects of wireless facility construction under the NHPA and NEPA.” The NPRM invited input on “the costs of NEPA and NHPA compliance and its utility for environmental protection and historic preservation for different classes of facilities, as well as the extent of the Commission's responsibility to consider the effects of construction associated with the provision of licensed services under governing regulations and judicial precedent,” seeking particular comment regarding the treatment of geographic area service license and small wireless facility deployment.

    B. Legal Analysis 1. By Amending Its Rules, the FCC Clarifies That Small Wireless Facility Deployment Is Neither an Undertaking Nor a Major Federal Action

    22. Consistent with the DC Circuit's decision in CTIA, the FCC exercises its discretion to amend its rules to clarify that the deployment of small wireless facilities does not qualify as a Federal undertaking or major Federal action. As explained above, a Federal undertaking or major Federal action requires a sufficient degree of Federal involvement, and the Commission has only ever identified two potential bases by which such involvement exists with respect to the deployment of wireless facilities that do not require site-by-site licensing or construction permits. The first is the ASR obligations that flow from section 303(q) and apply to facilities that are over 200 feet in height or are close to airports. The second is the “limited approval authority” that is codified in § 1.1312 of the Commission's rules. Since the deployment of small wireless facilities, as defined herein, is not subject to antenna structure registration requirements under section 303(q) of the Act, that avenue cannot provide a basis for treating small wireless facilities as an undertaking. Thus, the only possible basis by which small wireless facility deployments could be Federal undertakings would be if they were subject to the Commission's “limited approval authority.”

    23. In this Order, the FCC amends its rules to remove small wireless facilities deployment from § 1.1312 of the rules, eliminating the remaining basis for treating small wireless facility deployment as an undertaking and major Federal action. Neither the DC Circuit's CTIA decision nor Commission precedent precludes us from amending that rule, as long as its amendments are otherwise consistent with the Communications Act. As explained below, the Commission has multiple sound reasons for making this amendment, including that limiting § 1.1312 to larger wireless facilities is more consistent with the original purpose of the rule and Commission practice with respect to other small deployments. By clarifying that § 1.1312 does not apply to small wireless facility deployment, the FCC eliminates the predicate Federal involvement required for undertakings and major Federal actions. Accordingly, such deployments are no longer subject to those historic preservation and environmental review obligations.

    2. Its Amendment of Section 1.1312 of the Rules Is Consistent With the Public Interest

    24. The FCC concludes that its actions are consistent with the Commission's statutory mandates under the Communications Act, including its mandate to regulate in the public interest.

    25. Although the Commission appeared to ground the adoption of § 1.1312 in its public interest authority, the Commission has never squarely addressed whether the public interest is served by exercising this authority in the context of small wireless facility deployment. Nor did the Commission have at its disposal in 1990 the wealth of evidence now available in the wake of small cell deployment replacing macro deployment as the means by which many providers are choosing to deploy new wireless technology, such as 5G. In amending the Commission's rules, and after review of the record, the FCC determines that the public interest would not be served by continuing to subject small wireless facility deployment to § 1.1312's review requirements. As part of the public interest analysis, the FCC recognizes that the approval requirement in § 1.1312 has the effect of subjecting covered deployments to environmental and historic preservation review under NEPA and the NHPA. The FCC deems the costs of that resulting review to be unduly burdensome in light of the nature of small wireless facility deployment, the benefits of efficient and effective deployment, and the minimal anticipated benefits of NHPA and NEPA review in this context, as explained in greater detail below.

    26. When exercising its public interest authority to effectuate the purposes of the Communications Act, the FCC must factor in the fundamental objectives of the Act, including the deployment of a “rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges” and “the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and intensive use of the electromagnetic spectrum.” Relatedly, section 706 of the 1996 Act exhorts the Commission to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . . by utilizing, in a manner consistent with the public interest, convenience, and necessity. . . . regulating methods that remove barriers to infrastructure investment.” These statutory provisions do not confer authority but are consistent with the goals of the Communications Act.

    27. Furthermore, a close analysis of section 319(d) of the Act supports the conclusion that Congress does not want the Commission to place unnecessary regulatory barriers in the way of wireless facilities deployment. section 319(d) states, in relevant part, that “[a] permit for construction shall not be required for . . . stations licensed to common carriers, unless the Commission determines that the public interest, convenience and necessity would be served by requiring such permits for any such stations.” By its terms, section 319(d) eliminates Commission approval requirements for wireless communications facilities and precludes construction permits for those classes of providers unless the FCC makes affirmative public interest findings that such requirements are necessary and expressly imposes them. That language in section 319(d) was added in 1982 based on Congress's belief that in many cases the required preapproval “may delay market entry and place an unnecessary administrative and financial burden on both the potential licensee and the Commission.” It appears contrary to the intent of section 319(d) to replace the eliminated construction permit requirement with a different approval process that, at least in the small wireless facility context, risks replicating the harmful effects that Congress expressly sought to eliminate absent strong evidence of the public interest benefits of doing so.

    28. The FCC finds on the record in this proceeding that the public interest does not support applying the § 1.1312 approval process to small wireless facilities. To the contrary, encouraging small wireless facility deployment directly advances all of the statutory objectives described above. The FCC has recognized that small wireless facilities will be increasingly necessary to support the rollout of next-generation services, with far more of them needed to accomplish the network densification that providers require, both to satisfy the exploding consumer demand for wireless data for existing services and to implement advanced technologies like 5G. The record here also supports its prior conclusions regarding the volume and pace of needed small wireless facility deployments to support the future of advanced wireless services. The FCC notes, for example, that Verizon anticipates that 5G networks will require 10 to 100 times more antenna locations than previous technologies, while AT&T estimates that carriers will deploy hundreds of thousands of wireless facilities—equal to or more than they have deployed over the last few decades. Sprint, in turn, has announced plans to build at least 40,000 new small sites over the next few years.

    29. In light of these statistics, the Commission cannot simply turn a blind eye to the reality that the mechanical application of § 1.1312's requirements to each of these small deployments would increase the burden of review both to regulated entities and the Commission by multiples of tens or hundreds. Nor can the FCC ignore the record evidence cited above showing the negative impact and high costs associated with subjecting small wireless facility deployments to NHPA and NEPA review. It would be impractical, extremely costly, and contrary to the purposes of the Communications Act to subject the deployments required for 5G technology to many times the regulatory burdens that the Commission previously imposed on 3G and 4G infrastructure.

    30. The historical and present application of § 1.1312 supports the distinction the FCC makes between macrocell and large towers on the one hand and small wireless facilities on the other. When the Commission amended § 1.1312 in 1990 to require historic preservation and environmental review procedures for radio communications facilities that did not require pre-authorization permits, it was primarily focused on macrocells and large tower deployments, and it could not have anticipated that many small-cell antennas today would fit inside a space the size of a pizza box or that densification of many hundreds of these antennas would be necessary for deployment of more advanced wireless technologies. The Commission has nevertheless made common-sense accommodations for types of deployments that have limited potential for environmental and historic preservation effects and for which compliance would be impractical. For example, the Commission does not subject consumer signal boosters, Wi-Fi routers, or unlicensed equipment used by wireless internet service providers to § 1.1312 review. Through this Order, the FCC applies similar considerations in determining that it is consistent with the public interest to eliminate NEPA and NHPA compliance requirements for all small wireless facility deployments as defined herein.

    31. The FCC further finds, on balance, that the costs of requiring § 1.1312 review for small wireless facilities outweigh the marginal benefits, if any, of environmental and historic preservation review.

    32. Although commenters assess the magnitude of time and resources required for NEPA and NHPA compliance differently, the record clearly indicates that there are substantial, rising, and unnecessary costs for deployment that stem from compliance with NEPA and the NHPA. Over the last several decades, for example, Sprint estimates that it has done preliminary NEPA checklists for thousands of sites at a cost of tens of millions of dollars. Of those sites, approximately 250 triggered the requirement that Sprint prepare an environmental assessment that costs approximately $1,300. Most of those environmental assessments were for historic preservation concerns by state historic preservation officers under § 1.1307(a)(4) of the Commission's rules because the site was in or near a Historic District or Historic Property, but every one of those assessments resulted in a finding of no significant impact. In other words, the Commission's rules have required Sprint to spend tens of millions of dollars to investigate a minimal likelihood of harm.

    33. Verizon and AT&T reported similar burdens. Verizon examined its small wireless facility deployments in 2017 in five urban markets across the United States and found that completing NEPA and NHPA reviews comprised, on average, 26 percent of the total cost for these deployments. In the five markets Verizon examined, the costs of completing NEPA and NHPA (including Tribal) reviews comprised, on average, 26 percent of the total cost of deployment of small cells, including equipment. AT&T offered similar figures, stating that 17 percent of its costs to deploy each small wireless facility is directed to NEPA and NHPA compliance. AT&T further represented that it expects to spend $45 million on NEPA and NHPA compliance for thousands of small wireless facilities in 2018 and that its current NEPA and NHPA costs have direct effects on its broadband deployment initiatives by funneling money away from new small wireless facility projects or the expansion of existing projects. By contrast, AT&T estimates that a Commission decision that such deployments are not major Federal actions or undertakings would reduce small cell NEPA/NHPA compliance costs by up to 80 percent, which would fund over 1,000 additional small cell nodes annually, and reduce the small cell deployment timeline by 60-90 days. CTIA submitted a report indicating that overall, in 2017, providers spent nearly $36 million on NEPA and NHPA compliance. The report estimated that, based on providers' plans to accelerate small facility deployment, NEPA and NHPA costs would increase to $241 million in 2018.

    34. The record also reveals more generally that, even setting aside payments to Tribal Nations, which the FCC addresses below, review requirements can easily cost well over a thousand dollars per review—and potentially much more. Even if the time and resource expenditure associated with this review process may not appear substantial in the context of a single facility's deployment, given its prior conclusions based on the record regarding the volume and pace of needed small wireless facility deployments, the FCC expects the aggregate effect of exercising its limited reservation of authority to require environmental and historic preservation review for small wireless facilities to be substantially greater. For example, the FCC estimates that in the last several years thousands of small wireless facility deployments annually have been subject to Tribal review under its rules, representing approximately 80 percent of the total of such reviews. Given trends in small wireless facility deployment, the number of such reviews is likely to increase further over time. In addition, although aggregate annual review costs for smaller providers might well be less than that of entities with a large number of annual deployments, such small businesses also are likely less able to bear those costs. Although batch processing can have some benefits in reducing the burdens of review, even advocates of batchings observe that its benefits may be limited based on characteristics such as batch size, specific type of facility, environmental and/or historic preservation effect, and geographic area. The FCC thus is not persuaded that batch processing will reduce the burdens of the review process to such a degree that those burdens no longer would be significant.

    35. The potential delay in deployment associated with the review process also appears likely to be substantial. The record reveals that, given their time and expense, environmental and historic preservation review processes “are generally not started until the municipality has provided its approvals in case the municipality does not approve the initial location.” Thus, environmental and historic preservation review requirements necessarily impose delays above and beyond the time when facilities otherwise could begin deployment. Although the Commission takes steps to reduce such process delays, even delays of 30 days (let alone more) are substantial enough to weigh in its public interest calculus, particularly when aggregated across all the small wireless facility deployments that will be required in the coming years.

    36. At the same time, the record does not support sufficiently appreciable countervailing environmental and historic preservation benefits associated with subjecting small wireless facility deployments off of Tribal lands to historic preservation and environmental reviews. Consistent with its precedent, the FCC considers the possible benefits to the environment and historic preservation flowing from a Commission-imposed compliance requirement for small wireless facility deployments. The FCC concludes on the record here, however, that the specific, limited types of small wireless facility deployments described below do not warrant the imposition of these requirements off of Tribal lands. On Tribal lands, the FCC leaves undisturbed the historic preservation and environmental review processes that the FCC presently has in place for deployments of wireless facilities. Based on its review of the record, including concerns raised by Tribal Nations regarding the unique nature of Tribal land and the Commission's ongoing recognition of Tribal sovereignty, the FCC clarifies that it continues to exercise its limited approval authority for the deployment of small wireless facilities on Tribal land is consistent with our focus in the Wireless Infrastructure NPRM on areas of Tribal interest, and supported by our review of the record, which establishes that wireless providers have not experienced the same challenges arising from the historic preservation review process on Tribal lands.1 The Commission's public interest determination is also rooted in our ongoing commitment to fulfilling principles of Tribal sovereignty and to our Federal trust responsibility.

    1See, e.g., CTIA/WIA Comments at 7-8 (distinguishing between projects proposed on Tribal lands versus those proposed on non-Tribal lands and addressing its comments to the latter); Verizon Comments at 44 n. 142 (emphasizing that Verizon was not proposing changes to the process for reviewing facilities to be constructed on Tribal lands).

    37. As an initial matter, the FCC defines the types of facilities excluded from the scope of § 1.1312 in such a way as to minimize the impact that these facilities, as a class, could have on the environment and historic properties. The FCC also adopts a definition that ensures that larger facilities continue to be subject to its NHPA and NEPA processes. The FCC believes that this represents a better allocation of scarce resources. The FCC thus excludes from its review requirement only facilities that are limited in antenna volume, associated equipment volume, and height.

    38. As to height, its revised rule excludes small wireless facilities if they are deployed on new structures that are either no taller than the greater of 50 feet (including their antennas) or no more than 10 percent taller than other structures in the area. The rule also excludes any small wireless facility that is affixed to an existing structure, where as a result of the deployment that structure is not extended to a height of more than 50 feet or by more than 10 percent, whichever is greater. The Commission has previously used similar size specifications to delineate circumstances in which environmental and historic preservation review was unwarranted. In particular, the Commission has excluded from review those pole replacements that, among other things, “are no more than 10 percent or five feet taller than the original pole, whichever is greater” to guard against the risk of “excluding replacement poles that are substantially larger than or that differ in other material ways from the poles being replaced might compromise the integrity of historic properties and districts.” The Commission's exclusion for pole replacements was further limited in a manner designed to ensure “that the replacement will not substantially alter the setting of any historic properties that may be nearby.” The FCC seeks to advance similar ends here through the limits on overall size relative to other structures in the area. As AT&T observes, for example, “the vast majority of small cell antennas are placed at a height of less than 60 feet on structures located near similarly sized structures in previously disturbed rights-of-way, greatly reducing the likelihood of adversely impacting the surrounding environment.” The 50-foot height threshold the FCC adopts falls within the 60-foot parameter cited by AT&T and others, but the FCC also allows higher deployment in cases where such deployment is only a modest (10 percent) departure from the height of the preexisting facility or surrounding structures.

    39. Its public interest finding here also applies only when certain volumetric limits are met. To qualify as a small wireless facility, the antenna associated with the deployment, excluding the associated equipment, must be no more than three cubic feet in volume. The FCC agrees with commenters that, at this size, small wireless facilities “are unobtrusive and in harmony with the poles, street furniture, and other structures on which they are typically deployed.” This size is analogous to that of facilities the Commission previously has excluded from review under the Collocation NPA. The Commission has found in other contexts that the size of those facilities fully eliminated the possibility of what already was only a remote potential for historic preservation effects. This size also is similar to—or smaller than—the antenna volume specified in definitions of small wireless facilities under a number of state laws seeking to facilitate small wireless facility deployment. The FCC agrees with Verizon that at “three cubic feet or less per antenna” small wireless facilities “bear little resemblance to the macro facilities that represented most wireless siting” when the Commission conducted its public interest evaluations in the past.

    40. Additionally, the wireless equipment associated with the antenna must be no larger than 28 cubic feet. The FCC derives this limit from analogous limits on associated equipment in the Collocation NPA and the small wireless facility definitions in many state laws. The record persuades us that this definition appropriately balances its policy goal of promoting advanced wireless service and its recognition of the importance of environmental and historic preservation concerns where they might meaningfully be implicated. In particular, the FCC agrees with commenters that urge us to build on the small wireless facility definitions in the Collocation NPA and state laws, “while retaining flexibility to account for changes in technologies.”Advanced wireless services are migrating from 4G to 5G, and the FCC wants to foster that migration. As T-Mobile observes, “5G systems are still in the early stages of development,” and “any small wireless facility definition should accommodate this new, critical phase of broadband deployment.” Commenters identify 28 cubic feet as a workable definition for associated equipment, which will help encourage small wireless facility deployment to a greater extent than relying on some prior, smaller definitions of associated equipment size that would provide more limited relief. At the same time, just as the Collocation NPA and state laws commonly have adopted a numerical limit on associated equipment, the FCC finds a numerical limit warranted here, consistent with its goal of defining these facilities in a way that constrains the potential for environmental and historic preservation effects. The FCC is not persuaded that limits larger than 28 cubic feet—or forgoing any numeric limit on associated equipment at all—would balance that interest as effectively. The FCC also notes, as a practical matter, the general trend toward increasingly smaller equipment deployments, which will make it less likely that associated equipment will need to exceed the 28 cubic feet limit, and also less likely that deployment of associated equipment will have environmental or historic preservation effects.

    41. The FCC is not persuaded to further restrict the definition of small wireless facility by placing an aggregation limit on the number of such facilities on a given structure or pole, as some propose. The FCC is skeptical that even in scenarios involving multiple small wireless facilities deployed on a single structure or pole, the resulting aggregate deployment would resemble macrocells or towers of the sort the Commission generally envisioned in its past public interest analysis. Indeed, there are practical limitations on how many small wireless facilities can fit on a single pole. However, even if there are deployments where two or more small cells have a larger antenna volume in the aggregate than a single macrocell deployment, the FCC still finds its approach reasonable given the economic, technical, and public interest benefits of promoting small wireless facility deployments discussed above. Finally, nothing the FCC does in this order precludes any review conducted by other authorities—such as state and local authorities—insofar as they have review processes encompassing small wireless facility deployments. The existence of state and local review procedures, adopted and implemented by regulators with more intimate knowledge of local geography and history, reduces the likelihood that small wireless facilities will be deployed in ways that will have adverse environmental and historical preservation effects.

    42. While a number of commenters argue that review confers environmental and historic preservation benefits, to the extent they provide factual support, they provide no more than generalized claims of effects of small wireless facility deployment that have been addressed in isolated cases. While other commenters identify specific factual scenarios of concern to them regarding small wireless facility deployment, there is substantial record evidence that actual instances of concern identified by review are few.

    43. For example, Crown Castle states that it has never received a report or a negative response from a Tribal Nation regarding a proposed small cell deployment. Other commenters echo this experience. Sprint, for instance, remarks that in the thousands of tower and antenna projects it has undertaken since 2004, which included numerous small cell deployments, it has never had a substantive consultation with Tribal Nations that revealed possible adverse impacts on historic properties. Verizon, likewise, represents that between 2012 and 2015, only 0.3% of Verizon's requests for Tribal review resulted in findings of an adverse effect to Tribal historic properties, while AAR states that “more than 99.6 percent of deployments pose no risk to historic, tribal, and environmental interests.” Based on these apparently minimal effects of small wireless facility deployment on environmental and historic preservation interests, the FCC believes that the benefits associated with requiring such review are de minimis both individually and in the aggregate. And even if, as some contend, the aggregate effects of small wireless facility deployment rendered the benefits of review more than de minimis, the FCC nonetheless determines that those benefits would be outweighed by the detrimental effects on the roll-out of advanced wireless service.

    44. As further support for this conclusion, Sprint points in its comment to the Super Bowl as an example of the way that historic preservation review can impede broadband deployment with minimal to no benefit. In particular, Sprint deployed 23 small cells in Houston to upgrade its network in preparation for the crowds descending on Super Bowl LI. Even though the stadium construction itself did not involve any historic preservation consultation with Tribal Nations under Section 106 of the NHPA (because the stadium construction was not a Federal undertaking), carriers building an antenna in the parking lot were obligated by FCC rules to engage in the Section 106 process. And as with Sprint's other reviews since 2004, those reviews did not lead to any substantive consultation with Tribal Nations that revealed adverse impacts. That nonsensical result was purely a consequence of the Commission's discretionary decision to apply § 1.1312 to such small deployments. That the Commission's rule would lead to such an anomalous outcome—requiring environmental and historic preservation review of small wireless facilities deployed in the parking lot of an NFL stadium that did not itself require such review—highlights what the FCC sees as the misdirected public interest consequences that would result if the FCC applied § 1.1312's approval requirement to small wireless facility deployment.

    45. In short, the record evidence persuades us that the costs to small wireless facility deployment attributable to § 1.1312's approval requirement far outweigh any incremental benefits of such environmental or historic preservation review.

    3. Other Considerations Raised by Its Prior Rules and Comments in the Record

    46. 1990 Order. As explained above, the Commission's 1990 Order (55 FR 20396 (May 16, 1990)) did not specifically address whether the public interest was served by subjecting small wireless facility deployments to § 1.1312's requirements. The FCC now does so and finds that it is not.

    47. To the extent the 1990 Order made a public interest determination with respect to large facilities, the FCC notes that it is not bound by that determination because its public interest analysis for small wireless facilities presents materially different considerations than the Commission confronted in the past. Although the Commission anticipated that § 1.1312 would “establish[] an appropriate balance between section 319(d)'s purpose of expediting the delivery of communications services to the public” and potentially countervailing environmental considerations, the reasoning in the 1990 Order turns on materially different facts and assumptions than apply in the case of small wireless facility deployment. In particular, the Commission anticipated that its requirement would not “significantly affect construction or . . . have any effect on the vast majority of facilities covered by the rule.” In a world in which a relatively small number of large structures were being built, such predictions might have made sense. But with the high volume of small wireless facility deployments that the FCC anticipates being necessary to facilitate the provision of advanced wireless services, the FCC anticipates that absent Commission action significant numbers of deployments—in fact, the vast majority of them—will be significantly delayed and detrimentally affected without any actual historic preservation or environmental benefit.

    48. Geographic Area Licenses. In determining that small wireless facilities are not subject to historic preservation or environmental review obligations, the FCC rejects the position offered by some commenters that mere issuance of a broad geographic area service license constitutes sufficient Federal action to convert small wireless facility deployments into undertakings and major Federal actions, triggering NHPA and NEPA review. Indeed, the Commission has never taken the position that every form of license or authorization demonstrates a sufficient Federal nexus to convert the separate deployment of facilities into a Federal undertaking or major Federal action. Nonetheless, certain commenters make general assertions that a geographic area service license could be sufficient to implicate NHPA and NEPA. The FCC disagrees and find the Commission's role regarding such deployment too limited to render the deployments “undertakings” under the NHPA or “major Federal actions” under NEPA.

    49. As discussed above, the key consideration in determining whether a particular deployment is a Federal undertaking is the degree of Federal involvement, and the Commission has discretion to make the threshold determination as to whether that involvement exists. The FCC concludes that the Commission's issuance of a license that authorizes provision of wireless service in a geographic area does not create sufficient Commission involvement in the deployment of particular wireless facilities in connection with that license for the deployment to constitute an undertaking for purposes of the NHPA. Applying the relevant statutory text, the geographic area service license does not result in wireless facility deployment being “carried out by or on behalf of a Federal agency.” To the contrary, geographic area service licensing does not provide for Commission involvement in wireless facility deployment decisions. Geographic area service licenses also do not provide “Federal financial assistance” for wireless facility deployment. Nor is the geographic area service license “a Federal permit, license or approval” that must be obtained before wireless facility deployment can proceed. In particular, although geographic area service licenses are a legal prerequisite to the provision of licensed wireless service, and can affect entities' economic incentives to deploy small wireless facilities—insofar as the facilities can be used to offer the licensed service—neither the geographic area service license nor any other Commission approval is a legal prerequisite to the deployment of those particular facilities. In addition, viewing the deployment of small wireless facilities as an undertaking on the basis of geographic area service licenses is inconsistent with the manner in which Commission licensing occurs. In particular, although NHPA requires agencies to evaluate the effects of their undertakings before those undertakings occur, the FCC does not require any such determinations to take place prior to issuance of these licenses—thus, confirming that the issuance of the geographic area license itself is not the Federal undertaking. Indeed, the conduct at issue here—the physical deployment of particular infrastructure—occurs in a manner and at locations that the Commission cannot foresee at the time of licensing, as discussed in greater detail below. Under the geographic area service license, it is generally state and local zoning authorities that exercise their lawful authority regarding the placement of wireless facilities by private parties. The FCC thus does not find the issuance of a geographic area service license, in itself, to provide the requisite level of Commission involvement in wireless facility deployment to render that deployment an undertaking under relevant court precedent and ACHP guidance.

    50. For the same basic reasons, the FCC concludes that the geographic area service license is insufficient to render deployment of wireless facilities in connection with that license a “major Federal action” under NEPA. As explained above, the geographic licensing does not cause associated wireless facility deployment to be “carried out by or on behalf of” the Commission, the licensing does not involve the provision of Federal funding for such deployments, nor is the license technically required before wireless facility deployment can proceed (in other words, while carriers generally obtain a geographic area service license before they deploy the facilities through which they will eventually provide that service, they are not legally required to obtain the license until they want to provide service). As noted above, courts treat “major Federal actions” under NEPA similarly to “undertakings” under the NHPA. Indeed, the ACHP points out “major Federal actions” are arguably narrower than “undertakings” in various ways. Insofar as “major Federal actions” under NEPA are narrower than the universe of “undertakings” under the NHPA, its conclusion regarding NEPA necessarily will be the same as that for NHPA. Court precedent directly applying NEPA in the first instance likewise supports its view that the virtually nonexistent Commission involvement in the deployment of wireless facilities under a geographic area service license takes wireless facility deployment outside the scope of “major Federal action.” The FCC thus finds the geographic area license itself insufficient to render wireless facility deployment in connection with that license “major Federal action” under NEPA.

    51. The FCC distinguishes precedent cited by American Bird Conservancy, in which the Commission found that “[t]he fact that a carrier's construction of facilities is authorized by rule rather than by action on an individual application does not eliminate the existence of federal action or affect its obligation to comply with NEPA and other federal environmental statutes.” In that case, however, the Commission rule at issue directly authorized the construction of particular facilities. Here, by contrast, the geographic area license itself only authorizes transmissions. The FCC finds this is an insufficient connection to in itself cause the construction to constitute an undertaking under the NHPA or major Federal action under NEPA.

    52. In addition, the FCC emphasizes that issuance of geographic service licenses is remote in both time and regulatory reach from the deployment of small wireless facilities. Any wireless facility deployment will happen after the Commission has issued the geographic service licenses, and will occur in a manner and at locations that the Commission cannot reasonably foresee at the time of licensing. As to geographic service licenses issued in the past, at the time the licenses were issued, it is unlikely that significant small wireless facility deployment itself would have been reasonably foreseeable. The deployment of small wireless facilities today is a function of marketplace decisions by private actors in light of applicable regulatory regimes, such as any state or local zoning requirements.

    53. These characteristics of the Commission's regulatory approach to geographic service licensing support the view that NHPA and NEPA do not require Commission evaluation of any effects of small wireless facility deployment based on the issuance of such licenses. NHPA and NEPA require agencies to evaluate the effects of their undertakings or major Federal actions in advance of those undertakings or actions. Under the rules implementing NEPA and the NHPA and relevant court precedent, agencies need not consider effects of agency actions if they are not reasonably foreseeable. Because there is no plausible way for the Commission to meaningfully assess environmental and historic preservation effects associated with the deployment of small wireless facilities at the time geographic service licenses issue, the FCC concludes that there are no reasonably foreseeable effects that “a person of ordinary prudence would take into account” prior to issuing such licenses.

    54. The Commission also does not possess authority it could exercise to regulate small wireless facility deployment to address environmental and historic preservation concerns given the public interest findings the FCC makes in this order. Agencies have no obligation to consider potential effects under NEPA or the NHPA if they cannot exercise authority to address them under their organic statutes. As relevant here, addressing environmental and/or historic preservation effects of small wireless facility deployment would necessitate a review process to identify such concerns—but the FCC has found such a review process unwarranted under its public interest determination above. Because the FCC finds that such a requirement is not in the public interest for the deployment of small wireless facilities, the FCC cannot exercise the public interest authority to impose such duties. A contrary interpretation of its public interest authority under the Communications Act would require us to treat concerns under the NHPA and NEPA as dispositive. The FCC finds no grounds to believe that Congress intended the Commission, when exercising its Title III public interest authority, to summarily cast aside policy objectives of the Communications Act itself when interests implicated by NHPA or NEPA might be present. Instead, the FCC concludes that its approach of giving due consideration to the policy goals under Federal communications law along with those of the NHPA and NEPA better enables all relevant interests to be weighed in the public interest analysis. As clarified by its modification of § 1.1312 of the rules, its geographic service licensing regime thus reflects neither any intent or ability to regulate the deployment of small wireless facilities after this order.

    55. The FCC also does not interpret language in the 1990 Order to suggest that the Commission believed that Federal environmental statutes required it to adopt a condition that triggered those statutes for construction not otherwise subject to Commission approval. The 1990 Order does not include an analysis of the degree of Federal control required to trigger Federal environmental and historic preservation statutes. Rather, the 1990 Order addressed whether changes to an already-existing review requirement were warranted. To the extent that the Commission weighed historic preservation and environmental considerations in determining whether to amend its rules, the FCC reads those statements as part of its broader public-interest evaluation, not as an analysis of whether the rule's requirements constituted sufficient Federal involvement to rise to the level of a “federal undertaking” or “major Federal action.”

    56. Other Comments. Its public interest balancing also is not materially altered by claims that the potential for Commission-imposed review can alter decisions about how and where to deploy small wireless facilities by causing providers to tailor the manner or location of such deployments to avoid implicating environmental and historic preservation concerns. Commenters' arguments in this regard are generalized, and undercut by its conclusion that, as a class, the nature of small wireless facility deployments appears to render them inherently unlikely to trigger environmental and historic preservation concerns. For example, deployment of small wireless facilities commonly (although not always) involves previously disturbed ground, where fewer concerns generally arise than on undisturbed ground. In addition, as the Commission recently observed, “[i]n implementing large-scale network densification projects that require deployment of large numbers of facilities within a relatively brief period of time, use of existing structures, where feasible, can both promote efficiency and avoid adverse impacts on the human environment.” Based on the entire record before us, the FCC is not persuaded that requiring Federal environmental and historic preservation review for small wireless facility deployments will have a meaningful amount of benefits, particularly when this consideration is balanced against the other public interest considerations associated with promoting the deployment of small wireless facilities.

    57. Because the FCC finds the record of claimed potential benefits to be limited and otherwise fundamentally speculative, the FCC also is not persuaded that some more streamlined review process or other alternative to the action the FCC takes is warranted in the public interest. For example, proposals to reduce the length of review would not eliminate the financial burdens of the review process, which would continue to delay deployment, whether required individually or on some aggregated basis. In addition, arguments that the Commission should exclude small wireless facilities from § 1.1312 when deployed in a narrower range of circumstances do not demonstrate sufficient benefits to justify the burdens § 1.1312 imposes even in a narrower context. The FCC further expects that the more generalized approach the FCC takes for small wireless facility deployments will provide greater clarity in implementation, rather than leaving providers with uncertainty about whether a given small wireless facility deployment is excluded. Finally, the FCC is not persuaded that it would be preferable to rely on programmatic agreements or similar measures to streamline or exclude small wireless facility deployment from review. Its amendment of § 1.1312 of the rules involves a public interest evaluation under the Communications Act—an Act the FCC is responsible for administering—while programmatic agreements involve negotiations among multiple external parties that need not account for such considerations. In addition, given the importance of fostering small wireless facility deployment, the FCC is not persuaded that negotiated agreements would be warranted—even assuming arguendo that they ultimately resulted in the same outcome—given the time required for their negotiation and the associated delay in facilitating small wireless facility deployment.

    58. In sum, directly evaluating the question for the first time here, the FCC is not persuaded that it is in the public interest to exercise its limited reservation of authority to impose § 1.1312 on small wireless facility deployments and thereby trigger environmental and historic preservation review. Although the record does not enable a precise quantification of costs and benefits, it amply supports its conclusion that environmental and historic preservation review imposes burdens on small wireless facility deployment, and the FCC expects that these burdens will have a significant effect on small wireless facility deployment, at least in the aggregate, given the volume and nature of small wireless facility deployments that the FCC anticipates. Imposing such burdens would be at odds with several of its statutory mandates, and the FCC exercises its predictive judgment in finding that the benefits of eliminating these burdens will include hastening wireless deployment and freeing up funds for additional deployments that will benefit consumers, grow the economy, and strengthen the country's 5G readiness.

    59. The FCC acknowledges, of course, the policy goals expressed by Federal environmental and historic preservation statutes. But Congress prescribed specific triggers for the obligations that those statutes impose on Federal agencies, persuading us that agencies' consideration of those statutes' more general policy pronouncements is simply to be weighed alongside consideration of its principal duties under its organic statutes. Thus, although the record does not persuade us of meaningful benefits that are likely to result from environmental and historic preservation review of small wireless facility deployments, even assuming arguendo that there are some benefits, the FCC is not persuaded that they are likely to overcome the harms that the FCC finds run contrary to its responsibilities under the Communications Act, as informed by the Telecommunications Act of 1996. Accordingly, the FCC finds no basis to conclude here that it is in the public interest to apply § 1.1312 to small wireless facility deployment, triggering environmental and historic preservation review.

    II. Streamlining NHPA and NEPA Review for Larger Wireless Facilities A. Clarifying the Section 106 Tribal Consultation Process 1. Background

    60. Notwithstanding its narrowing the scope of deployments subject to Section 106 and NEPA review, many constructions of wireless facilities will continue to be treated as Commission undertakings under the NHPA because they are subject to site-by-site licensing, they require antenna structure registration, or their size exceeds its definition of small wireless facility. The ACHP's regulations prescribe detailed procedures for the review of proposed undertakings, including consulting with Tribal Nations and NHOs. As authorized under the ACHP's rules, the Commission has entered into two NPAs and the ACHP has issued a program comment, each of which modifies the procedures set forth in the ACHP's rules to tailor them to different classes of Commission undertakings. § 1.1320 of the FCC's rules directs applicants, when determining whether a proposed action may affect historic properties, to comply with the ACHP's rules or one of these program alternatives.

    61. An important component of the Section 106 process involves engaging and consulting with Tribal Nations and NHOs. section 101(d)(6) of the NHPA requires Federal agencies to consult with any Tribal Nation or NHO that attaches religious and cultural significance to a property eligible for inclusion on the National Register of Historic Places that may be affected by their undertakings. The ACHP rules implement that provision by requiring that agencies make a reasonable and good faith effort to identify such Tribal Nations or NHOs and invite them to be consulting parties. Procedures to implement this requirement are set forth in the Wireless Facilities NPA, which became effective in 2005. Properties to which Tribal Nations and NHOs attach cultural and religious significance are commonly located outside Tribal lands and may include Tribal burial grounds, land vistas, and other sites that Tribal Nations or NHOs regard as sacred or otherwise culturally significant. The consultation process for undertakings on Tribal lands is covered by separate provisions of the ACHP's rules, and is not addressed in this Order; as previously noted, nothing in this Order disturbs existing Commission practices for section 106 review on Tribal lands.

    62. In order to efficiently connect parties seeking to construct facilities with Tribal Nations while respecting Tribal sovereignty, the FCC established the Tower Construction Notification System (TCNS). TCNS is an online, password-protected system that notifies Tribal Nations, NHOs, and State Historic Preservation Officers (SHPOs) (collectively, recipients) of proposed wireless communications facility deployments in areas of interest designated by the recipients. The system also provides a means for Tribal Historic Preservation Officers (THPOs) and other Tribal or NHO officials to respond directly to applicants as to whether they have concerns about the effects of the proposed construction on historic properties.

    63. Tribal demands for fees that are not legally required to review projects submitted through TCNS have increased over the course of time. And though the FCC has taken steps to address these issues for small wireless facilities, the FCC takes further action here to address fee matters as they relate to the ongoing construction of macrocells and other large radio transmission facilities. The FCC also takes steps to make the Tribal participation process more efficient for applicants, Tribal Nations, and NHOs. The record details multiple issues causing confusion and delay in Tribal consideration of proposals submitted in TCNS. Many applicants have complained that there is uncertainty concerning how long a Tribal Nation will take in processing an application and that in some instances the process can extend for months or longer. Delays in obtaining Tribal comment on even a few individual sites can cause delays to larger projects and impede delivery of communications services to American consumers. In response, several Tribal commenters argue that most requests are handled in a timely manner. Moreover, Tribal governments have indicated that applicants often do not provide sufficient information in TCNS for a THPO or cultural preservation officer to opine as to whether a particular project may affect historic or cultural resources, thereby slowing the Tribal review process. The FCC addresses these concerns below.

    2. Timeline for Initial Tribal Responses

    64. The NPA states that Tribal Nations and NHOs ordinarily should be able to respond to communications from applicants within 30 days,but applicants are required to seek guidance from the Commission if a Tribal Nation or NHO does not respond to the applicant's inquiries. The Commission, in 2005, issued a Declaratory Ruling establishing a process that enables an applicant to proceed toward construction when a Tribal Nation or NHO does not timely respond to a TCNS notification.

    65. In the Wireless Infrastructure NPRM, the Commission sought comment on the measures, if any, it should take to expedite the review processes for Tribal Nations and NHOs, either by amending the Wireless Facilities NPA or otherwise, while assuring that potential effects on historic preservation are fully evaluated. The Commission sought comment on whether the procedures established by the 2005 Declaratory Ruling (see Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 (2005) (2005 Declaratory Ruling)) were adequate to ensure the completion of section 106 review when a Tribal Nation or NHO is non-responsive. It also sought comment on whether these processes could be revised in a manner that would permit applicants to self-certify their compliance with the section 106 process and therefore proceed once they meet the Commission's notification requirements, without requiring Commission involvement. The Commission asked whether such an approach would be consistent with the Wireless Facilities NPA and with the Commission's legal obligations. The Commission also asked whether the information in FCC Form 620 or 621 is sufficient to meet the requirement that “all information reasonably necessary” has been provided to the Tribal Nation or NHO.

    66. In response to the Wireless Infrastructure NPRM, many commenters contend that further improvements to the process for engaging Tribal Nations and NHOs in Section 106 review are warranted. Evidence in the record indicates that there are often delays associated with Tribal review and that these delays can significantly affect service providers' ability to complete Section 106 review and move toward deployment. Delays associated with Tribal engagement can be substantial, with estimates of the average time to complete Tribal review ranging between 75 and 110 days per project where Tribal review is required. Several Tribal Nations, however, dispute such arguments and note that they provide timely responses to communications from applicants in the vast majority of cases. With the number of deployments needed to support expanded 4G and 5G network technologies, service providers are increasingly concerned about the delays they are experiencing. Tribal representatives, however, contend that their ability to provide timely responses is impeded by some applicants who fail initially to provide them with sufficient information to determine their interest in a proposed project. They contend that, without sufficient information, they are forced to go back to applicants and request the information they need and that delays often result from repeated attempts to obtain needed information. For example, Tribal commenters have noted applicants' omission of key information, such as a precise location and a full description of the proposed project, and information needed to assess potential effects. They also point out that many delays are the result of applicants' error, such as failing to submit information to the Tribal point of contact identified in TCNS, or in some instances, submitting information to the wrong Tribal Nation altogether.

    67. The FCC takes several steps in this Order to make the Tribal participation process more efficient for applicants, Tribal Nations, and NHOs.

    68. First, to address Tribal concerns with receiving insufficient information to identify potentially affected historic properties, the FCC clarifies that going forward applicants must provide all potentially affected Tribal Nations and NHOs with a Form 620 (new towers) or Form 621 (collocations) submission packet in cases where this form is prepared for the SHPO following the requirements established in the Wireless Facilities NPA. While applicants retain the option of sending an initial notification of a proposed project to Tribal Nations and NHOs through TCNS without a Form 620/621 submission packet to provide an early opportunity for a Tribal Nation or NHO to disclaim interest, as described further below, the time period for a Tribal response will not begin to run until an applicant sends the Form 620/621 submission packet or, when no Form 620/621 is required, the alternative submission discussed below. The Form 620/621 submission packet contains detailed information about proposed facilities, including their proposed location(s); the dimensions, scale, and description of proposed projects; and information about the potential direct effects and visual effects of the project. It also requires applicants to provide their contact information and to include attachments providing additional detail, such as photographs and maps of the proposed site. The FCC agrees with Tribal Nations and other commenters who contend that providing Tribal Nations and NHOs with this detailed set of information at the initial notification stage will enable them to determine more quickly whether a project may affect historic properties of religious and cultural significance to them. The FCC emphasizes to applicants the importance of completing the Form 620/621 submission packet accurately and completely. Complete and accurate information about proposed facilities, including, for example, a specific and correct site address or a detailed description of the location of proposed facilities if no address is available as well as a complete description of all elements of the proposed facility, is critical to enable Tribal Nations and NHOs to identify potentially affected historic properties. Thus, if this information is inaccurate or incomplete, the FCC will not consider the time period for Tribal response to have started.

    69. The FCC disagrees that requiring applicants to send their Form 620/621 submission packet to Tribal Nations and NHOs would be inconsistent with the requirements of the Wireless Facilities NPA. To the contrary, the Wireless Facilities NPA requires that applicants provide Tribal Nations and NHOs with “all information reasonably necessary for the [Tribal Nation] or NHO to evaluate whether [h]istoric [p]roperties of religious and cultural significance may be affected.” The process the FCC establishes here is consistent with this requirement because it provides Tribal Nations and NHOs with more complete information to evaluate proposed projects. Moreover, under the revised process the FCC establishes, applicants retain the ability to make initial notifications to Tribal Nations and NHOs before sending them Form 620/621 submission packets.

    70. The FCC finds that providing the detailed information included in the Form 620/621 submission packet constitutes a reasonable and good faith effort to provide the information reasonably necessary for Tribal Nations and NHOs to ascertain whether historic properties of religious and cultural significance to them may be affected by the undertaking. The record shows that some Tribal Nations request that applicants provide information such as ethnographic reports, SHPO concurrence letters, and other information in excess of what the Wireless Facilities NPA requires to be included in a Form 620/621 submission packet before making an initial determination about their interest in a proposed project. The FCC clarifies that to the extent that any such information exceeds what is required under the Wireless Facilities NPA to be included in a Form 620/621 submission packet, the FCC requires the applicant to provide it, if necessary, only after a Tribal Nation or NHO has indicated that a historic property may be affected and has become a consulting party. Thus, to the extent that Tribal Nations or NHOs currently have auto replies in TCNS requesting additional information from applicants, the Commission will remove such language.

    71. The FCC further clarifies that, if a Tribal Nation or NHO conditions its response to an applicant's submission packet on the receipt of additional information beyond that required in the Form 620/621 submission packet, an applicant should respond that the FCC does not require the applicant to provide this information. If the Tribal Nation or NHO subsequently fails to indicate concerns about a historic property of traditional religious and cultural significance that may be affected by the proposed construction, the applicant may make use of the process described below for addressing instances in which Tribal Nations and NHOs do not initially respond. To the extent that Tribal Nations or NHOs seek to clarify information presented in the Form 620/621 submission packet, such as by requesting an explanation of the photographs included in the submission packet, the FCC encourages applicants to provide the requested clarifications, and the parties may copy Commission staff on communications related to such requests. If circumstances require the Commission to help resolve a dispute about whether a Form 620/621 submission packet or alternative submission has been properly completed or other cases that may present unique issues, Commission staff will provide assistance when it is requested. In bringing a dispute to Commission staff, an objecting party should provide a complete and detailed explanation of the basis of the dispute, evidence regarding the information the applicant has provided to the Tribal Nation or NHO, and all communications between the applicant and the Tribal Nation or NHO.

    72. In cases in which a Form 620/621 submission packet is not required to be prepared for the SHPO because the construction does not require SHPO review, the FCC adopts a different procedure. The Wireless Facilities NPA ordinarily excludes from Section 106 review by the SHPO, the Commission, and the ACHP certain categories of undertakings deemed to have minimal to no potential to affect historic properties. For two of these excluded categories, however, applicants are still required to identify and contact Tribal Nations and NHOs to ascertain whether historic properties of religious or cultural significance to them may be affected. In these instances where no Form 620/621 submission packet is otherwise prepared, the FCC requires applicants to provide Tribal Nations and NHOs with information adequate to fully explain the project and its location. At minimum, this alternate submission must include contact information for the applicant, a map of the proposed location of the facility, coordinates of the proposed facility, a description of the facility to be constructed including all proposed elements (such as, for example, access roads), and a description of the proposed site, including both aerial and site photographs. Given that applicants are not otherwise required affirmatively to identify historic properties within the Area of Potential Effects for these undertakings (other than the limited inquiry necessary to determine whether the exclusion applies), the FCC finds that this package constitutes an adequate baseline set of information to enable Tribal Nations and NHOs to comment on these projects. The FCC therefore disagrees with the contention that the FCC is required to provide Tribal Nations and NHOs with all the information contained in Form 620/621 in these instances.

    73. The FCC turns next to the timeframe for Tribal Nations and NHOs to respond to notifications by indicating any concerns about potentially affected historic properties. The FCC clarifies that the 30-day period for a Tribal response provided in the Wireless Facilities NPA will begin to run on the date that the Tribal Nation or NHO can be shown to have received or may reasonably be expected to have received the Form 620/621 submission packet (or the alternative submission where no 620/621 packet has been prepared). Consistent with existing practice, applicants may use TCNS to provide an initial notification to Tribal Nations and NHOs about proposed facility deployments. As noted above, TCNS automatically notifies Tribal Nations and NHOs of proposed construction within the geographic areas they have identified as potentially containing historic properties of religious and cultural significance to them. A Tribal Nation or NHO receiving a notification of proposed construction through TCNS, however, is under no obligation to respond until it receives a Form 620/621 submission packet (or alternative submission). The 30-day period for a response indicating whether the Tribal Nation or NHO has concerns about a historic property of traditional religious and cultural significance that may be affected by the proposed construction will begin to run on the date that the Tribal Nation or NHO can be shown to have been, or may reasonably be expected to have been, notified that a Form 620/621 submission packet or alternative is available for viewing via TCNS. The FCC is cognizant of Tribal concerns that applicants sometimes submit information to outdated points of contact or deviate from Tribal Nations' preferred means of communications. Therefore, the FCC reminds applicants that, consistent with the requirements in Section IV of the Wireless Facilities NPA, contact and communications shall be made in accordance with preferences expressed by the Tribal Nation or NHO, and misdirected communications will not begin the period for Tribal response unless and until they are actually received. Where the Tribal Nation or NHO is notified by email that a Form 620/621 submission packet has been submitted, the submission packet is presumed to have been received on the day the submission packet is provided. Where the applicant sends the notification through the mail, the FCC will presume that the packet may reasonably be expected to have been received by no later than the fifth calendar day after the date it is sent.

    74. In addition to clarifying when the initial 30-day timeframe for Tribal response begins to run, the FCC also establishes a new procedure to address instances in which Tribal Nations or NHOs fail to respond after receiving a Form 620/621 submission packet. As noted above, the 2005 Declaratory Ruling established a process to enable an applicant to proceed toward construction when a Tribal Nation or NHO does not respond to a TCNS notification in a timely manner. The Wireless Facilities NPA requires that, if an applicant does not receive a response after contacting a Tribal Nation or NHO, the applicant is required to make a reasonable attempt to follow up. Under the 2005 Declaratory Ruling, if the Tribal Nation or NHO does not respond to a second contact within 10 calendar days after the initial 30-day period, the applicant can refer the matter to the Commission for guidance. Upon receiving a referral, the Commission contacts the Tribal Nation or NHO by letter or email to request that it inform the Commission and the applicant within 20 calendar days whether it has an interest in participating in the Section 106 review. In addition, Commission staff attempts a phone call unless the Tribal Nation or NHO has indicated it does not wish to receive calls. The Commission also informs the applicant when its letter or email has been sent. If the Tribal Nation or NHO does not respond within 20 days of the date of the Commission's written communication, it is deemed to have no interest in pre-construction review and the applicant's pre-construction obligations under the Wireless Facilities NPA are discharged with respect to that Tribal Nation or NHO. Together, these procedures provide for a 60-day process for resolving cases where a Tribal Nation or NHO fails to provide a timely response to an initial notification provided through TCNS.

    75. In this Order, the FCC replaces the procedures outlined in the 2005 Declaratory Ruling with new procedures that establish a 45-day process for moving forward with construction in cases in which Tribal Nations or NHOs do not respond after having been given the opportunity to review a Form 620/621 submission packet, or when no Form 620/621 submission is required, an alternative submission. Under the process the FCC adopts here, if an applicant does not receive a response within 30 calendar days of the date the Tribal Nation or NHO can be shown or may reasonably be expected to have received notification that the Form 620/621 submission packet (or alternative submission) is available for review, the applicant can refer the matter to the Commission for follow-up. To facilitate prompt processing of its request, the applicant may submit its referral via TCNS. Upon receiving a referral, the Commission will contact promptly (and, in any case, within five business days) the Tribal Nation's or NHO's designated cultural resource representative by letter and/or email to request that the Tribal Nation or NHO inform the Commission and applicant within 15 calendar days of the date of the letter and/or email of its interest or lack of interest in participating in the section 106 review. The Commission also will inform the applicant when this letter and/or email has been sent, either by copying it on the correspondence or by other effective means. If the Tribal Nation or NHO does not respond within 15 calendar days, the applicant's pre-construction obligations are discharged with respect to that Tribal Nation or NHO. As discussed above, the FCC establishes here that the information in the Form 620/621 submission packet (or the alternative submission where no 620/621 packet has been prepared) will be considered sufficient for Tribal Nations and NHOs to comment on proposed projects.

    76. The FCC concludes that these revised procedures satisfy the Commission's obligation to make reasonable and good faith efforts to identify Tribal Nations and NHOs that may attach religious and cultural significance to historic properties that may be affected by an undertaking, as specified by the Wireless Facilities NPA and as required under the NHPA and the rules of the ACHP. The revised procedures the FCC adopts will provide Tribal Nations and NHOs with a total period of 45 days to provide a response to an applicant's notification of a proposed construction. The 45-day period will also include a Commission-initiated reminder after 30 days have elapsed. While the process the FCC adopts provides less time for Tribal review than the process established in the 2005 Declaratory Ruling, it nonetheless allows a longer opportunity to respond than the 30-day period that the Wireless Facilities NPA stipulates as an ordinarily reasonable period for Tribal review. Overall, the FCC concludes that the procedures the FCC adopts here are reasonable and consistent with its consultation responsibilities.

    77. The FCC rejects requests for the Commission to allow applicants to move forward unilaterally without Commission involvement in the absence of a response from a Tribal Nation or NHO. The processes the FCC establishes herein are consistent with the provisions of the Wireless Facilities NPA that outline applicants' responsibilities with respect to Tribal Nations and NHOs. Section IV of the Wireless Facilities NPA stipulates that a Tribal Nation's or NHO's failure to respond to a single communication does not establish that the Tribal Nation or NHO is not interested in participating in the review of a proposed construction, and it requires applicants to seek guidance from the Commission in cases where a Tribal Nation or NHO does not respond to the applicant's inquiries. The revised procedures the FCC adopts here are faithful to these requirements by providing multiple opportunities for Tribal Nations and NHOs to express their interest in proposed constructions and by involving the Commission in the consultation process when an applicant has not received a response to its attempted communications. Moreover, the FCC expects that the revised procedures the FCC establishes here will reduce delays and facilitate resolution of cases where Tribal Nations or NHOs have not provided timely responses.

    3. Tribal Fees

    78. In the Wireless Infrastructure NPRM, the FCC sought comment on a number of questions related to fees charged by Tribal Nations for their participation in the section 106 process. In this section, the FCC interprets the Commission's and applicants' obligations under the NHPA and the Wireless Facilities NPA, in light of ACHP guidance, to clarify that applicants are not required to pay fees requested by Tribal Nations or NHOs that have been invited to participate in the section 106 process. The FCC also clarifies the circumstances under which an applicant may be required to retain an appropriately qualified expert, who may be a representative of a Tribal Nation or NHO, to perform consultant services for which that expert may reasonably expect to be compensated.

    79. Neither the NHPA nor the ACHP's implementing regulations expressly address fees, nor does the Wireless Facilities NPA, but the ACHP, as the agency charged with implementing the NHPA, has issued guidance on the subject in a 2001 memorandum and as part of a handbook last issued in 2012. The ACHP's guidance repeatedly makes clear that the proponent of an undertaking is not required to accede to unilateral requests for payment. Rather, the agency (in its case, through its applicants) “has full discretion” on how to fulfill its legal obligation—namely the obligation to make “reasonable and good faith efforts” to identify historic properties that may be affected by its undertaking and invite potentially interested Tribal Nations and NHOs to be consulting parties.

    a. Up-Front Fees

    80. Consistent with the Wireless Facilities NPA, once an applicant, through TCNS, has identified that particular Tribal Nations or NHOs may attach religious and cultural significance to historic properties located in the area that may be affected by an undertaking, the applicant contacts each such Tribal Nation or NHO, typically through TCNS, to ascertain whether there are in fact such properties that may be affected. The record indicates that, at this stage in the section 106 review, some Tribal Nations are directing applicants to pay an “up-front fee” before the Tribal Nation will respond to the contact. At no time to date has the Commission explicitly endorsed such up-front fees. The FCC now clarifies, consistent with ACHP guidance, that applicants are not required to pay Tribal Nations or NHOs up-front fees simply for initiating the Section 106 consultative process.

    81. At the time the Wireless Facilities NPA was adopted and TCNS was implemented, Tribal Nations generally did not request fees to review proposed constructions upon receiving notification. Over time, however, some Tribal Nations began assessing fees at notification, and gradually it became a more common practice. In addition, the amounts of these fees have increased significantly over the years, and industry commenters assert that the rate of increase itself has risen sharply in recent years. CCA contends, for example, that one of its member companies reports that the average amount it pays in Tribal fees increased from $381.67 per project in 2011 to more than $6,300 for projects in late 2016 to early 2017. Consequently, industry commenters ask that the Commission provide guidance on up-front fees. AT&T, for example, asks the Commission to establish that, “if a carrier does not ask for `specific information and documentation' from the Tribal Nation, pursuant to the ACHP Handbook, then no contractor relationship has been established and no payment is necessary.” NATHPO, on the other hand, argues that the relative rarity of instances in which tower construction has harmed historic properties demonstrates that the current system works, and it urges the Commission not to take actions that would limit Tribal capacity to become involved in the process.

    82. The ACHP's 2001 fee guidance memorandum addresses the practice of Tribal Nations and NHOs charging fees for their participation in the section 106 process. In that memorandum, the ACHP distinguishes between Tribal Nations participating in section 106 reviews in their capacity as government entities with a designated role in the process versus the possibility that they may be engaged to provide services in a different capacity, that of a consultant or contractor. The former capacity entails no obligation or expectation for the applicant to pay fees. The ACHP 2001 Fee Guidance explains that “the agency or applicant is not required to pay the tribe for providing its views.” The ACHP 2012 Tribal Consultation Handbook echoes this guidance, and clearly states that no “portion of the NHPA or the ACHP's regulations require[s] an agency or an applicant to pay for any form of tribal involvement.” Further, “[i]f the agency or applicant has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the section 106 process.” The Handbook does acknowledge that there may be circumstances in which payment is reasonably expected, but not merely for acting in the Tribal Nation's governmental capacity:

    . . . during the identification and evaluation phase of the Section 106 process when the agency or applicant is carrying out its duty to identify historic properties that may be significant to an Indian tribe, it may ask a tribe for specific information and documentation regarding the location, nature, and condition of individual sites, or even request that a survey be conducted by the tribe. In doing so, the agency or applicant is essentially asking the tribe to fulfill the duties of the agency in a role similar to that of a consultant or contractor. In such cases, the tribe would be justified in requesting payment for its services, just as is appropriate for any other contractor.

    83. The up-front fees requested by some Tribal Nations for providing their initial assessment as part of the Section 106 review process do not compensate Tribal Nations for fulfilling specific requests for information and documentation, or for fulfilling specific requests to conduct surveys. They are more in the nature of a processing fee, in exchange for which the Tribal Nation responds to the applicant's contact, and to the extent necessary, reviews the materials submitted before indicating whether the Tribal Nation has reason to believe that historic properties of religious and cultural significance to it may be affected. In recognition of ACHP guidance and having reviewed the record, the FCC affirms that applicants are not required to pay up-front fees to Tribal Nations and NHOs to initiate section 106 reviews. Thus, fees need not be paid to obtain a response to an applicant's initial contact with a Tribal Nation or NHO and, to the extent that Tribal Nations or NHOs currently have auto replies in TCNS requesting that applicants pay up-front fees, the Commission will remove such language. If a Tribal Nation or NHO nevertheless purports to condition its response to an applicant's TCNS contact on the receipt of up-front compensation, the FCC will treat its position as a failure to respond, and the applicant will be able to avail itself of the process discussed above for when a Tribal Nation or NHO fails to supply a timely response. The FCC finds such an approach to be consistent with the ACHP's guidance that, where the agency or applicant “has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the section 106 process.”

    84. A number of Tribal Nations have argued that Tribal sovereignty prohibits the Commission from establishing rules about fees. The FCC emphasizes that no action it takes here questions or interferes with Tribal Nations' rights to act as sovereigns. The FCC does not dictate or proscribe any actions by Tribal Nations. The FCC simply clarifies that nothing in the applicable law of the United States—the NHPA, ACHP rules, and the Wireless Facilities NPA—requires applicants (or the Commission for that matter) to pay up-front fees as part of the Section 106 process. Accordingly, Tribal Nations remain free to request upfront fees and applicants may, if they choose, voluntarily pay such fees. If, however, a Tribal Nation or NHO opts not to provide its views without an up-front payment, and the applicant does not voluntarily agree to provide the payment, consistent with the ACHP's guidance, its obligations have been satisfied and the FCC may allow its applicant to proceed with its project after the 45-day period described above.

    85. Some Tribal Nations assert that they are entitled to up-front fees to compensate them for the effort or cost of participating in the section 106 process. For instance, some Tribal commenters have indicated that they rely upon up-front fees to fund their section 106 activities or to eliminate the administrative burden of calculating actual costs incurred in reviewing each TCNS submission. Other Tribal commenters maintain that they should be compensated because their up-front fees are meant to cover their actual average costs associated with reviewing and commenting on commercial projects. While this may be true, the fact remains that the law and applicable guidance do not require the Commission and its applicants to compensate Tribal Nations and NHOs for providing their comments or views in the context of the section 106 process. Moreover, in light of its decision above to require that an applicant provide a completed FCC Form 620/621 or alternative submission when a project is proposed within a Tribal Nation's or NHO's geographic area of interest, the FCC finds that in most instances, a Tribal Nation or NHO should have sufficient information to provide comment on the undertaking and its potential to affect an historic property of significance to it. In assessing the applicant's submission during the initial consultation stage, the FCC believes it reasonable to expect a Tribal Nation or NHO to rely on information already in its possession. If a Tribal Nation elects to conduct research to obtain this information, however, the ACHP's guidance does not assign responsibility to applicants to fund such research.

    86. While certain commenters claim they should be entitled to a share of revenue from commercial ventures that may impact their cultural heritage, the fact that its applicants frequently are for-profit entities is irrelevant to whether fees for non-consultant services should be required. Finally, some commenters assert that Tribal Nations act in a consultant capacity and therefore are entitled to compensation at all stages of a project, including from the moment the review process begins. The FCC disagrees, as such an interpretation conflicts with ACHP guidance indicating when fees may be appropriate. In the section that follows, the FCC discusses the ACHP's guidance on consultant fees.

    b. Consultant Fees

    87. As noted above, the ACHP's 2001 fee guidance memorandum states that, when a Tribal Nation “fulfills the role of a consultant or contractor” when conducting reviews, “the tribe would seem to be justified in requiring payment for its services, just as any other contractor,” and the applicant or agency “should expect to pay for the work product.” The FCC sought comment in the Wireless Infrastructure NPRM on the circumstances under which a Tribal Nation or NHO might act as a contractor or consultant and expect compensation, as well as whether and how the Commission might provide guidance regarding the fees to be paid for such services. The FCC also sought input on how a Tribal Nation's or NHO's request for fees interacts with the obligation to use reasonable and good faith efforts to identify historic properties.

    88. In addition to requests for up-front fees addressed above, Tribal Nations have requested payment for activities undertaken after the initial determination that historic properties are likely to be located in the site vicinity, including monitoring and other activities directed toward completing the identification of historic properties as well as assessing and mitigating the project's impacts on those properties. As described more fully below, the FCC finds that while an applicant may negotiate and contract with a Tribal Nation or NHO for such services, an applicant is not obligated to hire a Tribal Nation or accede to Tribal requests for fees in the absence of an agreement.

    89. As noted above, ACHP guidance states that no “portion of the NHPA or the ACHP's regulations require an agency or an applicant to pay for any form of Tribal involvement” in section 106 reviews. Thus, as discussed above, when a Tribal Nation or NHO is participating in the section 106 review process in response to a notification or request to consult on the identification of historic properties, payment is not required. The ACHP acknowledges that an agency or applicant may ask a Tribal Nation or NHO to perform work, such as providing specific information or documentation or conducting surveys—just as the applicant may negotiate a commercial agreement with any other qualified contractor. If the applicant asks the tribal Nation or NHO to perform work, “the agency or applicant essentially is asking the tribe to fulfill the duties of the agency in a role similar to that of a consultant or contractor. In such cases, the tribe would be justified in requesting payment for its services, just as is appropriate for any other contractor.” Applying the ACHP's guidance, the FCC finds that, if an applicant asks a Tribal Nation or NHO to perform work of the type described by the ACHP, the applicant should expect to negotiate a fee for that work. If, however, the applicant and the Tribal Nation or NHO are unable to agree on a fee, the applicant may seek other means to fulfill its obligations. The ACHP Handbook specifically addresses this scenario: “The agency or applicant is free to refuse just as it may refuse to pay for an archaeological consultant, but the agency still retains the duties of obtaining the necessary information for the identification of historic properties, the evaluation of their National Register eligibility, and the assessment of effects on those historic properties, through reasonable means.” In other words, so long as the underlying obligation to make reasonable and good faith efforts to identify historic properties is satisfied, the applicant is not bound to any particular method of gathering information.

    90. The FCC emphasizes that while applicants must make reasonable and good faith efforts, they are not required to make every possible effort to identify potentially affected properties. In fact, the ACHP regulations “do not require identification of all properties” (emphasis in original). The ACHP makes this clear in its guidance on “Meeting the `Reasonable and Good Faith' Identification Standard in section 106 Review.” In that document, the ACHP states that:

    “[i]t is . . . important to keep in mind what a reasonable and good faith effort does not require:

    The “approval” of a SHPO/THPO or other consulting party. The ACHP, SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.

    Identification of every historic property within the APE. One of the reasons the ACHP's regulations contain a post-review discovery provision (36 CFR 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.”

    That is to say, perfection is not required in the section 106 review process. Thus, the mere possibility that every possible historic property may not be identified does not inherently render the applicant's efforts inadequate.

    91. In addition to charging fees to assist in the identification of historic properties, some Tribal commenters have suggested that they are entitled to compensation for monitoring or other services they find necessary to assess impacts and mitigate adverse effects once historic properties have been identified. In these instances, the same principle applies as in the case of fee requests to assist in identification of historic properties. That is, the applicant is ultimately responsible for satisfying its obligations under the FCC's rules, including the Wireless Facilities NPA. The applicant must invite a Tribal Nation or NHO that identifies a historic property of religious and cultural significance that may be affected to become a consulting party and must provide it with all of the information, copies of submissions, and other prerogatives of a consulting party. The Tribal Nation or NHO will have the opportunity to provide its views on the potential effect on the identified historic property, and to comment on alternatives to avoid or mitigate any harm. The applicant is not presumed to be required to engage the services of any particular party, including a Tribal Nation or NHO, either to identify historic properties or to monitor efforts to avoid or minimize harm. An applicant is free to engage a Tribal Nation or NHO as a paid consultant at any point in the section 106 process, but it is under no obligation to do so. While a Tribal Nation or NHO, in certain circumstances, may possess the greatest knowledge relevant to assessing a particular site, the obligation placed on the Commission and applicants under the ACHP rules and the Wireless Facilities NPA requires only a reasonable and good-faith review.

    92. Consistent with the ACHP's guidance, the FCC finds that an applicant is not required to hire any particular person or entity to perform paid consultant services. To the contrary, the FCC expects that competition among experts qualified to perform the services that are needed will generally ensure that the fees charged are commensurate with the work performed. To ignore these dynamics would be fundamentally inconsistent with the notion that an agency and its applicants throughout the section 106 process are only required to exercise reasonable efforts. The applicant may generally hire any properly qualified consultant or contractor when expert services are required, whether in the course of identifying historic properties, assessing effects, or mitigation. The appropriate qualifications will depend upon the work to be performed. For example, different qualifications may be needed to confirm the presence or absence of archeological properties during a site visit, to apply traditional knowledge in assessing the significance of above-ground features, or to monitor construction. In any event, the Wireless Facilities NPA stipulates that with respect to the identification and evaluation of historic properties, any assessment of effects shall be undertaken by a professional who meets the Secretary of the Interior's Professional Qualification Standards.

    93. In addition, the FCC finds that inherent in the ACHP's guidance recognizing that an applicant may choose to engage a Tribal Nation or NHO to provide services is the corollary that a Tribal Nation or NHO need only be compensated for fulfilling its role as a consultant or contractor where there is an agreement in place between the Tribal Nation and the applicant to perform a compensable service. Without such an agreement, the applicant has not undertaken to engage the Tribal Nation or NHO, and it is not compelled to comply with a unilateral request for fees.

    94. Finally, there may be individual cases in which the applicant and a Tribal Nation or NHO disagree on whether the applicant has met the reasonable and good faith standard in connection with the hiring of paid consultants, including considerations of whether consultant services are necessary, what qualifications are required, and whether the applicant's chosen consultant meets those qualifications. In particular, there may be disputes about whether the applicant has obtained a qualified consultant or has unreasonably refused to use a Tribal Nation or NHO as a consultant in light of the amount of the fee requested by the Tribal Nation or NHO for such services. In such cases, either party may ask the Commission to decide whether the applicant's obligations have been satisfied, and Commission staff will continue to make determinations where it has been provided with complete information and evidence as described below. In case of a dispute, the applicant will have the burden of stating facts to substantiate its claim that it has met the reasonable and good faith standard in connection with the hiring of paid consultants within 15 days of being directed to do so. After the applicant has stated such facts, the objecting party will then have the burden of stating facts showing that the applicant has not met such standard within 15 days of being directed to do so. In determining whether the reasonable and good faith standard has been met, Commission staff will consider all relevant facts, including but not limited to “the special expertise possessed by Indian tribes and Native Hawaiian organizations in assessing the eligibility of historic properties that may possess religious and culture significance to them;” the nature and significance of the historic property at issue, the fees sought by the Tribal Nation or NHO; the qualifications and expertise of, and fees charged by, other paid consultants, either on the project in question or in comparable situations; the qualifications of any consultant that the applicant wishes to engage in lieu of a Tribal consultant, and all actions the applicant has taken to satisfy its obligations.

    B. Reforming the FCC's Environmental Review Process

    95. Separate and apart from the section 106 process, the Wireless Infrastructure NPRM sought comment on ways the Commission might streamline its environmental compliance regulations and processes while ensuring it meet its NEPA obligations. In particular, the Commission sought comment on whether to revise or eliminate § 1.1307(a)(6) of the rules, which governs EAs or proposed facilities located in floodplains, and on any measures it could take to reduce unnecessary processing burdens consistent with NEPA. The FCC now takes actions to address both of these concerns.

    96. The Commission's rules require an applicant to prepare and file an EA if its proposed construction meets any of several conditions specified in the rules, designed to identify construction that is located in an environmentally sensitive area or that has other potentially significant environmental impacts. All other constructions are categorically excluded from environmental processing unless the processing bureau determines, in response to a petition or on its own motion, that the action may nonetheless have a significant environmental impact. In implementing NEPA, the Commission has delegated preparation of EAs to applicants. Nevertheless, the Commission is responsible for the EA's content, scope, and evaluation of environmental issues.

    97. If the applicant files an EA, then members of the public are given the opportunity to file informal complaints or petitions to deny. Commission staff review the application and any informal complaints or petitions to deny that have been filed, and consider whether the proposed facility will cause any significant impacts on the environment. If such impacts are found, the applicant is given an opportunity to reduce, minimize, or eliminate the impacts by changing some aspect of the project. If no such impacts are found, or once any impacts that are found have been reduced below the level of significance, then the Commission staff completes the environmental review process by issuing a Finding of No Significant Impact (FONSI). The rules forbid the applicant from initiating any construction activities until the FONSI is issued.

    98. The following sections (1) adopt changes to the rules governing facilities located in floodplains; and (2) implement procedural changes to accelerate the environmental review process. Consistent with the Commission's past practice, where other Federal agencies have assumed responsibility for environmental review of proposed facilities, such as the Bureau of Indian Affairs on Tribal lands it oversees, the Commission defers to those agencies' own NEPA practices. The FCC continues that policy in this order, and therefore the measures adopted below do not apply on Tribal lands.

    1. Environmental Assessments of Facilities Located in Floodplains

    99. In the Wireless Infrastructure NPRM, the Commission sought comment on whether to revise or eliminate § 1.1307(a)(6) of the rules, which governs environmental assessments of proposed facilities located in floodplains. Specifically, the Commission sought comment on whether to revise its rules to remove the EA requirement for “siting in a floodplain when appropriate engineering or mitigation requirements have been met.” The Commission recognized that many parties advocated that “EAs . . . be eliminated for deployments on flood plains . . . if a site will be built at least one foot above the base flood elevation and a local building permit has been obtained.” For the reasons discussed below, the FCC hereby amends this rule to eliminate the requirement for an EA if a proposed facility meets certain engineering requirements intended to mitigate environmental effects.

    100. A floodplain is defined as a relatively flat lowland area adjacent to inland or coastal waters that faces a significant chance of flooding each year. Large portions of the country lie within floodplains, including areas where an estimated 10 percent of Americans live. The devastating consequences of large-scale flooding caused by natural disasters—such as Hurricanes Harvey, Irma, Maria, and Nate within the past year—starkly illustrate the potential hazards that flooding may pose to life and property in flood-prone areas. In particular, the flooding in the wake of these storms “devastated . . . the communications networks that serve” communities and poses concerns about “the resilience of the communications infrastructure [and] the effectiveness of emergency communications” in these areas.

    101. To address these risks, Congress has enacted laws intended to anticipate and minimize flood risks by encouraging development outside flood-prone areas if possible and by promoting land-management policies and construction techniques that reduce or mitigate the risk of flood damage. The Commission's rule, which references Executive Order 11988, requires the submission of an EA for facilities to be constructed in a floodplain.

    102. Section 1.1307(a)(6) of the Commission's rules requires a party proposing to deploy a facility such as a wireless antenna tower in a base floodplain to submit an EA. The EA requirement under this provision is triggered solely by the facility's location in a floodplain. The Commission's rules, however, do not identify the criteria an applicant must satisfy to address potential environmental effects of facilities in floodplains.

    103. Informal staff guidelines available on the Commission's website state that EAs for proposed facilities located in floodplains should include (1) a copy of the section of a Federal Emergency Management Agency (FEMA) map showing the proposed site location; and (2) a copy of the building permit issued by the local jurisdiction (or, if such a permit is unavailable, other independent verification) confirming that the proposed structure will be at least one foot above the base flood elevation of the floodplain. Thus, the primary focus of Commission review in issuing a FONSI is whether the facility is in the floodplain and, if it is, whether the proposed structure is at least one foot above the base flood elevation of that floodplain.

    104. The FCC finds that a more streamlined NEPA review framework would be as effective as the existing rules in carrying out its NEPA obligations with respect to facilities located in floodplains and would more efficiently promote its infrastructure deployment goals. Specifically, as discussed below, the FCC will dispense with the existing requirement that an applicant file an EA solely due to the location of a proposed facility in a floodplain, so long as such proposed facility, including all associated equipment, is at least one foot above the base flood elevation of the floodplain. By avoiding the direct costs of preparing unnecessary EAs, as well as the costly impact of procedural delays, this change will increase providers' capacity to invest in deploying more facilities; and the time saved by skipping the time-consuming review process will enable them to accelerate such deployments. At the same time, the one-foot elevation requirement will continue to ensure that such deployments are properly sited to avoid adverse floodplain impacts.

    105. Comments filed by state transportation officials, infrastructure developers, and wireless carriers support its conclusion that the current floodplain-related EA filing and review process imposes excessive burdens that are not justified by offsetting benefits. The Washington State Department of Transportation points out that communications projects often “can be located in a floodplain without having a direct or indirect impact on floodplain function,” and accordingly, suggests that an EA should not be required routinely “solely because an action is sited in a floodplain.” Several infrastructure and service providers report that the vast majority of the EAs they have been required to prepare were for deployments sited in floodplains, yet the Commission staff ultimately issued FONSIs for all of them, with no need for mitigation measures or other changes. Preparation of such EAs may require consulting services that, according to some commenters, often cost thousands of dollars and several months of time.

    106. Many parties argue that EAs for floodplain deployments are redundant because local zoning authorities review the same projects and grant construction permits only after confirming that they comply with floodplain-related requirements in their building codes. These parties contend that the Commission conducts no independent analysis or data-gathering, but rather simply relies on local authorities' building permits to confirm compliance with the identical floodplain-related criterion that the proposed structure will be at least one foot above the base flood elevation. In light of these considerations, many commenters argue that the Commission should revise its rules to require EAs for deployments sited in floodplains only if the facilities and associated equipment are not located at least one foot above the base flood elevation and/or have not been issued building permits confirming that they satisfy this criterion. Others contend that the Commission's floodplain EA requirement should be eliminated altogether.

    107. The FCC acknowledges concerns raised by commenters about maintaining technical requirements for constructing facilities in floodplains to mitigate the risks of damage caused by hurricanes. The 2017 U.S. hurricane season highlights the critical importance of employing proper engineering and design techniques to mitigate or minimize flood-related risks, assure public safety, maintain the resiliency of communications networks, and protect the natural environment. The FCC notes that state and local zoning and construction requirements, FEMA requirements, and other relevant laws will, of course, continue to ensure that these important considerations are addressed.

    108. To address both industry's efficiency concerns and the concerns expressed in the record about the potential effects of inappropriate construction in floodplains, the FCC amends § 1.1307(a)(6) to eliminate the requirement that applicants file an EA for facilities to be constructed on a flood plain, provided that the facilities, including all associated equipment, are constructed at least one foot above the base flood elevation. The FCC believes that facilities built in compliance with this new rule will “reduce the risk of flood loss [and] minimize the impact of floods on human safety, health and welfare.” Accordingly, provided that no other criteria trigger an EA under its rules, such projects will have no significant effects on the quality of the human environment, within the meaning of NEPA, that would require the preparation of EAs or other environmental processing.

    109. The FCC concludes that this new, streamlined regulatory framework fully satisfies its obligations under NEPA and maintains regulatory oversight to ensure continued implementation of practices that protect against environmental degradation that otherwise could be caused by construction of facilities in floodplains. At the same time, the elimination of the EA-filing requirement and pre-construction environmental processing by the Commission will enable providers to build these facilities more rapidly and at lower cost. It thus will make a significant contribution towards advancing its objective of removing regulatory processes and burdens that dampen investment and hamper deployment of wireless communications infrastructure. As a result, this new framework for floodplain deployment should help promote expedited deployment of the facilities needed to bring advanced technologies and services to consumers across the country.

    2. Timeframes for Commission To Act on Environmental Assessments

    110. As noted above, the Wireless Infrastructure NPRM sought comment on ways the Commission could reduce unnecessary processing burdens by streamlining the environmental review procedures that it is required to conduct before the deployment of infrastructure is authorized. Here, the FCC commits to timeframes for reviewing and processing EAs in order to provide greater certainty and transparency to applicants, thereby facilitating broadband deployment.

    111. The FCC's rules require that each filed EA be placed on public notice for a period of 30 days to allow for public input. For most towers for which an EA is submitted, the Commission issues a Finding of No Significant Impact (FONSI) approximately fifteen days after the close of the notice period. The fifteen days allows for timely informal complaints and petitions to deny to reach the reviewing staff and for administrative processing. Delays can occur if an EA is incomplete (e.g., missing permits or other agency approvals), if the underlying application requires perfecting amendments, if an informal complaint or petition to deny is filed in response to the public notice, or if the staff determines additional information is needed in order to meet the Commission's NEPA obligations.

    112. Industry commenters argue that NEPA compliance results in significant delays. Some commenters complain about delays associated with EAs—which T-Mobile states may “languish for an extended period of time—sometimes years,” partly because the Commission is not subject to any processing timelines or dispute resolution procedures for EAs. WIA similarly argues that the environmental review process is a significant source of delay for deployment and shot clocks are needed to process EAs and to resolve environmental delays and disputes. On the other hand, American Bird Conservancy, an environmental organization, claims that industry claims are “unfounded” and that tower applications move through the FCC system on average within 45 days.

    113. The FCC concludes that providing applicants with greater time certainty will benefit both applicants and the public that relies on their services, and will hasten deployment. In particular, for the great majority of cases in which the EA is complete as submitted and will support a FONSI, the FCC directs its staff to complete review and to issue the FONSI within 60 days from placement on notice, either by publication of a public notice or posting on the website (hereafter “on notice”). The FCC concludes that this time period is reasonable and generally attainable for several reasons. First, staff currently completes review and processing of approximately 75 percent of EAs within 60 days, with most of the remainder completed within 90 days. The FCC is aware of no reason that the 60-day period for review and processing cannot be extended to all EAs that are complete as submitted, in the absence of public objections or substantive concerns. At the same time, the FCC believes a 60-day window is necessary in order to accommodate the 30-day notice period, additional time for timely objections to reach the reviewing staff, and administrative processing. The FCC also notes that 60 days is less than the three-month period that CEQ recommends as an outer boundary for agencies to complete their internal processing of EAs. To the extent current practice is to complete review and processing in less than 60 days, this action is not intended to prolong the review process.

    114. Specifically, to accomplish this goal, the FCC directs it staff to review an EA for completion and adequacy to support a FONSI within 20 days from the date it is placed on notice. This review is necessary to determine whether the EA is missing information that is necessary to demonstrate whether the facility would significantly affect the environment for any of the reasons specified in § 1.1307(a) and (b) or that is otherwise required under the Commission's rules. Assuming the EA is complete and would substantively support a FONSI without requiring additional information, staff shall notify the applicant that, barring filing of an informal complaint or petition to deny, the bureau will issue a FONSI within 60 days from placement on notice. This process is in keeping with its obligations under NEPA to review and analyze potential environmental impacts of proposed actions, and to make FONSIs available to the public.

    115. If, however, the EA is missing necessary information or if staff determines that it needs to consider additional information to make an informed determination, staff will notify the applicant of the additional information needed within 30 days after the EA is placed on notice. The additional period of up to 10 days beyond the initial 20-day review period will give staff an opportunity to prepare a request for more information. Where the missing information is not of a nature that is likely to affect the public's ability to comment on environmental impacts, then consistent with current practice, the application will not again be placed on notice. In such cases, staff is directed to complete the review and issue a FONSI, if warranted, within 30 days after the missing information is provided or 60 days after the initial notice, whichever is later.

    116. Where information is missing that may affect the public's ability to comment on significant environmental impacts, the application will again be placed on notice when that information is received. In addition, Commission staff may identify reasons that a proposal may have a significant environmental impact outside of those the applicant is affirmatively required to consider under the Commission's rules, and in such cases, the applicant's provision of information or amendment of its application to address the concern will ordinarily require additional public notice. Under these circumstances, a new 60-day period for review and processing will begin upon publication of the additional notice.

    117. Where an informal complaint or petition to deny is filed against an application containing an EA, the Commission's rules afford the applicant an opportunity to respond and the petitioner or objector an opportunity to reply. In such cases, the staff will endeavor to resolve the contested proceeding within 90 days after the relevant pleading cycle has been completed, or the FCC otherwise has received all information that the FCC has requested from the applicant.

    List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Civil rights, Claims, Communications common carriers, Cuba, Drug abuse, Environmental impact statements, Equal access to justice, Equal employment opportunity, Federal buildings and facilities, Government employees, Income taxes, Indemnity payments, Individuals with disabilities, Investigations, Lawyers, Metric system, Penalties, Radio, Reporting and recordkeeping requirements, Telecommunications, Television, Wages.

    Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455, unless otherwise noted.

    2. Section 1.1307(a)(6) is revised to read as follows:
    § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.

    (a) * * *

    (6) Facilities to be located in floodplains, if the facilities will not be placed at least one foot above the base flood elevation of the floodplain.

    3. Section 1.1312 is amended by revising paragraph (e) to read as follows:
    § 1.1312 Facilities for which no preconstruction authorization is required.

    (e) Paragraphs (a) through (d) of this section shall not apply:

    (1) To the construction of mobile stations; or

    (2) Where the deployment of facilities meets the following conditions:

    (i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

    (ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

    (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; and

    (iv) The facilities do not require antenna structure registration under part 17 of this chapter; and

    (v) The facilities are not located on tribal lands, as defined under 36 CFR 800.16(x); and

    (vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

    Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2018-08886 Filed 5-2-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 17-264; FCC 18-41] Obligations Relating to Submission of FCC Form 2100, Schedule G, Used To Report TV Stations' Ancillary or Supplementary Services AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) revises of its rules to relieve certain digital television stations of an annual reporting obligation relating to the provision of ancillary or supplementary services.

    DATES:

    These rule revisions are effective on May 3, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For additional information on this proceeding, contact Raelynn Remy of the Policy Division, Media Bureau at [email protected], or (202) 418-2120.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order, FCC 18-41, adopted on April 12, 2018. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at https://ecfsapi.fcc.gov/file/0413667409173/FCC-18-41A1.pdf. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis

    1. In this Report and Order (Order), we adopt our proposal to revise § 73.624(g) of the Commission's rules to require only those digital television (DTV) broadcast stations that actually provided feeable ancillary or supplementary services during the relevant reporting period to submit Form 2100, Schedule G to the Commission.1

    1 47 CFR 73.624(g)(2); 82 FR 56574. In addition to proposing the rule revisions adopted in this Order, the NPRM (see 82 FR 56574 (Nov. 29, 2017)) also sought comment on possible revisions to § 73.3580 of the Commission's rules concerning public notice of broadcast applications. We will address issues relating to § 73.3580 at a later date.

    2. Section 336 of the Communications Act of 1934, as amended (Act), authorizes DTV stations to offer ancillary or supplementary services in addition to their free, over-the-air television service.2 Section 336(e) of the Act directs the Commission to establish a fee program for any such services for which the payment of a subscription fee is required, or for which the licensee receives compensation from a third party in return for transmitting material furnished by that party,3 otherwise known as “feeable” ancillary or supplementary services. Under § 336(e)(4), the Commission must advise Congress annually on “the amounts collected pursuant to [the fee] program.”

    2 47 U.S.C. 336.

    3 Such compensation excludes advertising revenues used to support broadcasting for which a subscription fee is not required.

    3. To carry out its mandate, the Commission in 1998 adopted rules that: (i) Set the fee for feeable ancillary or supplementary services at five percent of the gross revenues received from the provision of those services; and (ii) require all DTV licensees and permittees annually to file Schedule G, which is used to report information about their use of the DTV bitstream to provide such services. Such stations must submit Schedule G every year even if they provided no ancillary or supplementary services during the relevant reporting period. Failure to file the form “regardless of revenues from ancillary or supplementary services or provision of such services may result in appropriate sanctions.”

    4. In October 2017, the Commission issued a Notice of Proposed Rulemaking (NPRM) proposing to modify § 73.624(g)(2) to require only those DTV stations that provide feeable ancillary or supplementary services to submit Schedule G on an annual basis. The following month, the Media Bureau, on its own motion, waived the December 1, 2017 deadline for the filing of Schedule G by DTV stations that received no revenues from such services during the reporting period ending September 30, 2017, pending Commission action on the proposal to eliminate the § 73.264(g)(2) reporting obligation. In response to the NPRM, we received no opposition to the proposed revisions to § 73.624(g).

    5. We adopt our proposal to modify § 73.624(g)(2) of the Commission's rules to require only those DTV stations that provide feeable ancillary or supplementary services during the relevant reporting period to submit Schedule G.4 We find persuasive commenters' unanimous assertions that requiring all DTV stations to file this form, regardless of whether they have provided ancillary or supplementary services or received revenue from those services, imposes unnecessary regulatory burdens and wastes resources. The record has not shown there will be any impact on our ability to discharge our statutory obligations by modifying our rules as proposed. Requiring the submission of Schedule G only by DTV stations that have provided feeable ancillary or supplementary services will continue to provide the Commission with the necessary information to assess and collect the required fees 5 and to fulfill its reporting obligation to Congress.6 Stations that provide feeable ancillary or supplementary services and fail to file the required information will be subject to appropriate sanctions. In addition, as we noted in the NPRM, only a small fraction of all television broadcast stations provide feeable ancillary or supplementary services. Based on a Media Bureau staff review of Schedule G filings, only twelve out of more than 6,000 DTV stations required to file Schedule G received revenues from their provision of ancillary or supplementary services in 2017, and the Commission collected less than $1,300 in fees from those revenues.7 We thus agree with commenters who assert that the costs of applying § 73.624(g)(2) to all DTV stations outweigh any associated public interest benefits.

    4 As proposed in the NPRM, we also revise Schedule G to conform to the rule amendments adopted herein.

    5 For example, requiring DTV stations that have provided feeable ancillary or supplementary services to file Schedule G will allow us to continue to assure that a portion of the value of the public spectrum resource made available for commercial use is recovered for the public benefit and to avoid unjust enrichment of the station.

    6 The Commission fulfills its reporting obligation by providing the required information in the Video Competition Report, which identifies the total reported revenues from ancillary or supplementary services and the amount of fees collected by the Commission.

    7 These totals are based on a review of all Schedule G filings for the 2017 reporting period. The data underlying these totals are publicly available through the Commission's LMS database application search, https://enterpriseefiling.fcc.gov/dataentry/public/tv/publicAppSearch.html.

    6. We therefore affirm our tentative conclusion that such a broad application of the reporting requirement is not necessary to fulfill our statutory requirement to “report to Congress on the [fee] program . . . and [give the agency] the information necessary to adjust the fee program as appropriate consistent with the use of the spectrum.” Rather, the form-filing requirement will only continue to apply to DTV stations that actually receive revenue from feeable services. As some parties have noted, waiver of the December 1, 2017 deadline for filing Schedule G spared thousands of DTV stations from expending time and resources to submit such reports, without compromising the Commission's fulfillment of its obligation to report to Congress under section 336. For these reasons, we conclude that eliminating this reporting obligation for DTV stations that have provided no feeable ancillary or supplementary services during the reporting period serves the public interest by reducing unnecessary regulatory burdens.

    7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM). The Commission sought written public comments on proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    8. In the Order, we amend § 73.624(g)(2) to relieve television broadcasters that have received no feeable revenues from the provision of ancillary or supplementary services, and thus are not required to pay fees on those revenues, of the obligation to submit FCC Form 2100, Schedule G annually. No parties filed comments in response to the IRFA or otherwise addressed the impact on smaller entities of the proposed revisions to § 73.624(g). In addition, the Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file comments in response to the proposed rules in this proceeding.

    9. The Order is authorized pursuant to sections 1, 4(i), 4(j), 303(r), and 336 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), and 336. The types of small entities that may be affected by the Order fall within the following category: Television Broadcasting. The Order adopts no reporting, recordkeeping, or other compliance requirements. The Order eliminates an annual reporting obligation and the expenditure of resources associated with filing the annual reports for a substantial number of broadcast stations, including small entities. Because the revisions to § 73.624(g) adopted in the Order are unopposed, we expect that DTV stations, including affected small entities, will benefit from such revisions.

    10. This Order eliminates, and thus does not contain new or revised, information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501 through 3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002.

    11. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

    12. Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), 303(r), and 336 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), and 336, this Report and Order is adopted, effective as of the date of publication of a summary in the Federal Register.8

    8 These rule changes serve to “reliev[e] a restriction.” 5 U.S.C. 553(d)(1).

    13. It is further ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), 303(r), and 336 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), and 336, the Commission's rules are hereby amended.

    14. It is further ordered that the Commission shall send a copy of this Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

    List of Subjects in 47 CFR Part 73

    Television.

    Federal Communications Commission. Marlene Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends part 73 of title 47 of the Code of Federal Regulations (CFR) as set forth below:

    PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.

    2. Revise § 73.624(g)(2)(i) and (ii) to read as follows:
    § 73.624 Digital television broadcast stations.

    (g) * * *

    (2) * * *

    (i) Each December 1, all commercial and noncommercial DTV licensees and permittees that provided feeable ancillary or supplementary services as defined in this section at any point during the 12-month period ending on the preceding September 30 will electronically report, for the applicable period:

    (A) A brief description of the feeable ancillary or supplementary services provided;

    (B) Gross revenues received from all feeable ancillary and supplementary services provided during the applicable period; and

    (C) The amount of bitstream used to provide feeable ancillary or supplementary services during the applicable period. Licensees and permittees will certify under penalty of perjury the accuracy of the information reported. Failure to file information required by this section may result in appropriate sanctions.

    (ii) A commercial or noncommercial DTV licensee or permittee that has provided feeable ancillary or supplementary services at any point during a 12-month period ending on September 30 must additionally file the FCC's standard remittance form (Form 159) on the subsequent December 1. Licensees and permittees will certify the amount of gross revenues received from feeable ancillary or supplementary services for the applicable 12-month period and will remit the payment of the required fee.

    [FR Doc. 2018-09335 Filed 5-2-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [CS Docket No. 98-120; DA 18-410] Carriage of Digital Television Broadcast Signals AGENCY:

    Federal Communications Commission.

    ACTION:

    Dismissal of petition for reconsideration.

    SUMMARY:

    This document dismisses the Petition for Reconsideration filed by Paxson Communications Corporation (now known as ION Media Networks, Inc.) (ION). Due to the passage of time, ION has agreed to withdraw its petition. Accordingly, the Media Bureau dismisses the petition without prejudice.

    DATES:

    May 3, 2018.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Diana Sokolow, [email protected], of the Policy Division, Media Bureau, (202) 418-2120.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Order of Dismissal, CS Docket No. 98-120, adopted and released on April 23, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Copies of the materials can be obtained from the FCC's Reference Information Center at (202) 418-0270. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document is not subject to the Congressional Review Act. The Commission is, therefore, not required to submit a copy of this Memorandum Opinion and Order to the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the Petition for Reconsideration was dismissed.

    Federal Communications Commission. Thomas Horan, Chief of Staff, Media Bureau.
    [FR Doc. 2018-09413 Filed 5-2-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180110025-8285-02] RIN 0648-XG202 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; 2018 Closure of the Northern Gulf of Maine Scallop Management Area AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS announces the closure of the Northern Gulf of Maine Scallop Management Area for the remainder of the 2018 fishing year for Limited Access General Category vessels. Vessels subject to this closure may not fish for, possess, or land scallops in or from the Northern Gulf of Maine Scallop Management Area through March 31, 2019. Regulations require this action once NMFS projects that 100 percent of the Limited Access General Category 2018 total allowable catch for the Northern Gulf of Maine Scallop Management Area will be harvested.

    DATES:

    Effective 0001 hr local time, May 2, 2018, through March 31, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Shannah Jaburek, Fishery Management Specialist, (978) 282-8456.

    SUPPLEMENTARY INFORMATION:

    The reader can find regulations governing fishing activity in the Northern Gulf of Maine (NGOM) Scallop Management Area in 50 CFR 648.54 and 648.62. These regulations authorize vessels issued a valid federal scallop permit to fish in the NGOM Scallop Management Area under specific conditions, including a total allowable catch (TAC) of 135,000 lb (61,235 kg) for the Limited Access General Category (LAGC) fleet for the 2018 fishing year, and a State Waters Exemption Program for the State of Maine and Commonwealth of Massachusetts. Section 648.62(b)(2) requires the NGOM Scallop Management Area to be closed to scallop vessels issued federal LAGC scallop permits, except as provided below, for the remainder of the fishing year once the NMFS Greater Atlantic Regional Administrator determines that the LAGC TAC for the fishing year is projected to be harvested. Any vessel that holds a federal NGOM (category LAGC B) or Individual Fishing Quota (IFQ) (LAGC A) permit may continue to fish in the Maine or Massachusetts state waters portion of the NGOM Scallop Management Area under the State Waters Exemption Program found in § 648.54 provided it has a valid Maine or Massachusetts state scallop permit and fishes in that states respective waters only.

    Based on trip declarations by federally permitted LAGC scallop vessels fishing in the NGOM Scallop Management Area and analysis of fishing effort, we project that the 2018 LAGC TAC will be harvested as of May 2, 2018. Therefore, in accordance with § 648.62(b)(2), the NGOM Scallop Management Area is closed to all federally permitted LAGC scallop vessels as of May 2, 2018. As of this date, no vessel issued a federal LAGC scallop permit may fish for, possess, or land scallops in or from the NGOM Scallop Management Area after 0001 local time, May 2, 2018, unless the vessel is fishing exclusively in state waters and is participating in an approved state waters exemption program as specified in § 648.54. Any federally permitted LAGC scallop vessel that has declared into the NGOM Scallop Management Area, complied with all trip notification and observer requirements, and crossed the VMS demarcation line on the way to the area before 0001, May 2, 2018, may complete its trip and land scallops. This closure is in effect until the end of the 2018 scallop fishing year, through March 31, 2019. This closure does not apply to the Limited Access (LA) scallop fleet, which was allocated a separate TAC of 65,000 lb (29, 484 kg) for the 2018 fishing year under Framework Adjustment 29 to the Atlantic Sea Scallop Fishery Management Plan. Vessels that are participating in the 2018 scallop Research Set-Aside Program and have been issued letters of authorization to conduct compensation fishing activities will harvest the 2018 LA TAC.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. The NGOM Scallop Management Area opened for the 2018 fishing year on April 1, 2018. The regulations at § 648.60(b)(2) require this closure to ensure that federally permitted scallop vessels do not harvest more than the allocated LAGC TAC for the NGOM Scallop Management Area. NMFS can only make projections for the NGOM closure date as trips into the area occur on a real-time basis and as activity trends appear. As a result, NMFS can typically make an accurate projection only shortly before the TAC is harvested. A rapid harvest rate, that has occurred in the last two weeks, makes it more difficult to project a closure well in advance. To allow federally permitted LAGC scallop vessels to continue to take trips in the NGOM Scallop Management Area during the period necessary to publish and receive comments on a proposed rule would result in vessels harvesting more than the 2018 LAGC TAC for the NGOM Scallop Management Area. This would result in excessive fishing effort in the area thereby undermining conservation objectives of the Atlantic Sea Scallop Fishery Management Plan and requiring more restrictive future management measures to make up for the excessive harvest. Also, the public had prior notice and full opportunity to comment on this closure process when we put the NGOM management provisions in place on April 1, 2018 (83 FR 12857). NMFS also finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 30, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09377 Filed 4-30-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180411362-8362-01] RIN 0648-XG168 Fisheries of the Northeastern United States; Monkfish Fishery; 2018 Monkfish Specifications AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are implementing specifications for the 2018 monkfish fishery, including total allowable landings limits, trip limits, and day-at-sea limits. This action is necessary to ensure allowable monkfish harvest levels that will prevent overfishing and allow harvesting of optimum yield. This action is intended to establish the allowable 2018 harvest levels, consistent with the Monkfish Fishery Management Plan and previously announced multi-year specifications.

    DATES:

    The final specifications for the 2018 monkfish fishery are effective June 4, 2018, through April 30, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Allison Murphy, Fishery Policy Analyst, (978) 281-9122.

    SUPPLEMENTARY INFORMATION:

    The New England and Mid-Atlantic Fishery Management Councils jointly manage the monkfish fishery. The fishery is divided into Northern and Southern Fishery Management Areas and there are different management measures for each area. Primary effort controls include a yearly allocation of days-at-sea (DAS) and landing limits that are designed to enable the fishery to catch, but not exceed, its annual quotas. This action would continue specifications approved by the Councils in Framework Adjustment 10 to the Monkfish Fishery Management Plan, which included specifications for fishing years 2017-2019.

    On July 12, 2017, we approved measures in Framework 10 for the 2017 fishing year (82 FR 32145), based on a recent stock assessment update and consistent with the Councils' Scientific and Statistical Committee recommendations. At that time, we also approved the projected specifications for 2018 and 2019. Approved measures for 2018 (Table 1) include total allowable landings (TAL) in both the Northern and Southern Fishery Management Areas, DAS limits, and trip limits. These 2018 measures are the same as 2017. All other requirements remain the same.

    Table 1—Monkfish Specifications for Fishing Year 2018 Management area TAL DAS
  • maximum
  • Incidental limit on a groundfish DAS Possession limit when on a monkfish DAS
    Northern Area 6,338 Category C: 900lb tail weight per DAS
  • Category D: 750lb tail weight per DAS
  • Southern Area 9,011 37 Category A/C: 700 lb tail weight per DAS.
  • Category B/D: 575 lb tail weight per DAS.
  • We have reviewed available 2017 fishery information against the 2018 specifications. While we have exceeded the Northern Area total allowable landings, we do not expect that the annual catch limit will be exceeded. Further, there is no new biological information that would require altering the projected 2018 specifications. Neither Council has recommended any changes to the previous multi-year specifications. Based on this, we are implementing the 2018 specifications as outlined in the Framework 10 final rule (82 FR 32145, July 12, 2017). The 2018 specifications will be effective until April 30, 2019. We will finalize the 2019 fishing year specifications prior to May 1, 2019, by publishing another final rule.

    The 2018 fishing year starts on May 1, 2018. The fishery management plan allows for the previous year's specifications to remain in place until replaced by a subsequent specifications action (rollover provision). As a result, the 2017 specifications remain in effect until replaced by the 2018 specifications included in this rule.

    We will publish notice in the Federal Register of any revisions to these specifications if an overage occurs in 2018 that would require adjusting the 2019 projected specifications. We will provide notice of the final 2019 specifications prior to the May 1, 2019, start of the fishing year.

    Classification

    The NMFS Assistant Administrator has determined that this final rule is consistent with the Monkfish Management Plan, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

    This rule is exempt from review under Executive Order 12866.

    Pursuant to 5 U.S.C. 553(b)(B), we find good cause to waive prior public notice and opportunity for public comment on the catch limit and allocation adjustments because allowing time for notice and comment is unnecessary. The Framework 10 proposed rule provided the public with the opportunity to comment on the 2017-2019 specifications (82 FR 21498, May 9, 2017). While comments in the Framework 10 final rule were mixed on whether limits should be liberalized or made more restrictive, no comments were received on the announced 2018 specifications. Thus, the proposed and final rules that contained the projected 2017-2019 specifications provided a full opportunity for the public to comment on the substance and process of this action. Furthermore, no circumstances or conditions have changed in the 2017 monkfish fishery that would cause new concern or necessitate reopening the comment period. Finally, the final 2018 specifications being implemented by this rule are unchanged from those projected in the Framework 10 final rule.

    The Chief Counsel for Regulation, Department of Commerce, previously certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that the 2017-2019 monkfish specifications would not have a significant economic impact on a substantial number of small entities. Implementing status quo specifications for 2018 will not change the conclusions drawn in that previous certification to the SBA. Because advance notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., do not apply to this rule. Therefore, no new regulatory flexibility analysis is required and none has been prepared.

    This action does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 27, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-09368 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    83 86 Thursday, May 3, 2018 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Chapter I [NRC-2017-0214] Review of Administrative Rules AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is initiating a retrospective review of administrative requirements to identify outdated or duplicative administrative requirements that may be eliminated without an adverse effect on public health or safety, common defense and security, protection of the environment, or regulatory efficiency and effectiveness. The NRC is providing an outline of its strategy and is seeking public comment on the criteria that the NRC proposes to use to identify administrative regulations for possible elimination. This retrospective review of administrative regulations will complement the NRC's existing strategy for retrospective analysis of existing regulations.

    DATES:

    Submit comments by July 2, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date. The NRC will not prepare written responses to each individual comment, due to the NRC's schedule for completing the retrospective review of administrative regulations.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2017-0214. Address questions about NRC dockets to Ms. Carol Gallagher; telephone: 301-415-3463; email: [email protected]. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    Email comments to: [email protected]. If you do not receive an automatic email reply confirming receipt, then contact us at 301-415-1677.

    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301-415-1677.

    For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Margaret S. Ellenson, Office of Nuclear Material Safety and Safeguards; telephone: 301-415-0894; email: [email protected]; or Mr. Andrew Carrera, Office of Nuclear Material Safety and Safeguards; telephone: 301-415-1078; email: [email protected]; both are staff of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

    SUPPLEMENTARY INFORMATION: I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2017-0214 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2017-0214.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    B. Submitting Comments

    Please include Docket ID NRC-2017-0214 in your comment submission.

    The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

    II. Background

    On August 11, 2017, the NRC announced that the agency is initiating, beginning in the fall of the calendar year 2017, a retrospective review of its administrative regulations to identify those rules that are outdated or duplicative. Once identified, the regulations will be evaluated to determine whether they can be eliminated without impacting the agency's mission. The retrospective review supports the NRC's ongoing regulatory planning and retrospective analysis of existing regulations (ADAMS Accession No. ML14002A441).

    The Retrospective Review of Administrative Regulations Strategy

    On November 22, 2017, the NRC staff issued SECY-17-0119, “Retrospective Review of Administrative Regulations” (ADAMS Accession No. ML17286A069), which provided for Commission approval the NRC staff's proposed strategy for the retrospective review of regulations. The staff requirements memorandum associated with SECY-17-0119 approved the NRC staff's proposal and directed staff to implement the strategy. Overall, the goal of the retrospective review is to enhance the management and administration of regulatory activities and to ensure that the agency's regulations remain current and effective. The review is intended to identify regulatory changes that are administrative in nature that will make the information submittal, record keeping, and reporting processes more efficient for the staff, applicants, and licensees. The strategy takes into consideration the agency's overall statutory responsibilities, including mandates to issue new regulations, the number of regulations in chapter I of title 10 of the Code of Federal Regulations, and available resources. This effort will not impact the NRC's mission, as it will be limited to identifying outdated or duplicative, non-substantive administrative regulations.

    III. Discussion

    This notice provides an outline of the NRC's approved strategy for the retrospective review (see Table 1) and requests public comment on the criteria the NRC proposes to use to evaluate potential changes to the requirements. In summary, the retrospective review strategy involves seven steps—(1) developing criteria to evaluate potential regulatory changes to administrative requirements; (2) gathering NRC staff input on administrative regulations that might fit the proposed criteria; (3) reviewing historical correspondence documents submitted to the NRC related to eliminating duplicative or outdated administrative regulations; (4) including opportunities for public comment; (5) interacting with the public throughout the review process by conducting public meetings; (6) reviewing stakeholder input; and (7) developing rules or rulemaking plans to eliminate or modify administrative requirements, as appropriate.

    Table 1—Retrospective Review Activity Description and Timeline Action Description Approximate completion timeframe Step 1: Develop Evaluation Criteria Develop criteria to ensure administrative regulations are evaluated in a consistent manner. The criteria will be used as guides to determine whether the administrative requirement is duplicative or outdated and if the requirement(s) should be considered for potential elimination or modification. The criteria are being disseminated to external stakeholders for comment via this notice and will be discussed in a public meeting Finalize criteria after close of public comment period for this notice and after final review and approval by the Commission. Step 2: Gather NRC Staff Input Provide an email address or other mechanism for NRC staff to provide input on administrative requirements that may be outdated or duplicative and that the Commission should consider for elimination or modification Concurrently with request for public input as outlined in Steps 1 and 4. Step 3: Historical Correspondence Review Review relevant historical letters received from members of the public, other Federal agencies, State and local governments, Federally-recognized Tribes, non-governmental organizations, and representative industry groups related to eliminating duplicative or outdated administrative regulations Beginning concurrent with Step 4. Step 4: Request for Public Input on Outdated or Duplicative Administrative Requirements Request public input to identify administrative requirements that may be outdated or duplicative and that the Commission should consider for elimination or modification. The comment period will be open for a period of approximately 60 days Within 4 months after the public comment period closes for this notice. Step 5: Conduct Public Meetings Schedule public meetings (in-person, webinar, and teleconference-capable) during the comment periods to provide awareness and answer questions to clarify the purpose and scope of the activity. Although verbal comments will not be accepted during the meetings, staff will provide instruction on how attendees can submit written comments Meetings will be held during the public comment period for this notice and during the public comment period for the second notice (Step 4). Step 6: Review Input Compile and analyze the input and assign to the regulation “owner” for the assigned office to review each proposal to determine if it has merit Initial review and assignment of the input will be targeted for after completion of the public meetings (Step 5). Recommendations (i.e., no action or accept for regulatory change) should be submitted to the Commission for its review and approval within 18 months after initiation of the activities. Step 7: Develop Rulemaking Activities to Eliminate or Modify Requirements For any administrative requirements that have been identified for elimination or modification, the potential outcomes could include:
  • • A consolidated administrative rulemaking;
  • • Inclusion into an existing planned rulemaking; or
  • • A stand-alone specific rulemaking
  • The schedule for any rulemaking activities will be determined using the budget and rulemaking prioritization methodologies. Rulemaking plans will be submitted to the Commission for its review and approval.

    Public input will be critical to identifying potential changes to administrative requirements as well as to provide data on the benefits and costs of existing NRC administrative regulations. The NRC will conduct two public meetings to discuss the retrospective review process and recommendations. In addition, the NRC will seek input from the NRC's existing committees (the Committee to Review Generic Requirements, Advisory Committee on Reactor Safeguards, and the Advisory Committee on the Medical Uses of Isotopes), other Federal agencies, State and local governments, Federally-recognized Tribes, and non-governmental organizations. All input that the NRC receives will be used to inform the retrospective review recommendations.

    For the purpose of this review, administrative regulations are those that impose recordkeeping or reporting requirements or address areas of agency organization, procedure, or practice. Consistent with Step 1 of the strategy, the NRC developed the draft criteria and goals listed below to evaluate potential regulatory changes of this nature. The evaluation criteria would serve as factors of consideration to guide the staff's decisionmaking. The staff is not proposing to use the criteria to make stand-alone determinations. Instead, the criteria will be weighed against other activities outlined in the strategy, such as staff programmatic experience and, comments received, and the correspondence review. Draft criteria 1-3 are intended to “screen-in” regulations for inquiry for potential elimination or modification, as they address whether a regulation is outdated or duplicative. These screening-in criteria are not intended to be mutually exclusive. A given regulation may satisfy one or more of the criteria. Draft criterion 4 is intended to “screen-out” regulations from further inquiry or for potential elimination or modification so as to avoid unintended consequences. Specific points about which the NRC seeks public comment are described in the Section IV, “Specific Questions,” of this document.

    Draft Criteria for Selecting Changes to Administrative Requirements

    1. Routine and periodic recordkeeping and reporting requirements, such as directives to submit recurring reports, which the NRC has not consulted or referenced in programmatic operations or policy development in the last 3 years.

    The goal of this criterion is to identify outdated requirements for information collection.

    2. Reports or records that contain information reasonably accessible to the agency from alternative resources or routine reporting requirements where less frequent reporting would meet programmatic needs.

    The goal of this criterion is to identify duplicative information or overused collection requirements.

    3. Recordkeeping and reporting requirements that result in significant burden. For example, more than $100,000 overall per potential regulatory change; or over 1,000 reporting hours for each affected individual or entity over a 3-year period; or 10 hours for each affected individual or entity each calendar year or per application.

    The goal of this criterion is to ensure that elimination or modification of outdated or duplicative recordkeeping and reporting requirements could result in appreciable reductions in burden for the NRC, licensees, or both. The criterion is not intended to be used as a stand-alone consideration, but rather as a tool to ensure that the retrospective review is focused on efforts that will in fact result in a reduction in burden.

    4. Reports or records that contain information used by other Federal agencies, State and local governments, or Federally-recognized Tribes will be eliminated from the review.

    The goal of this criterion is to decrease the potential for unintended consequences. For example, the NRC collects certain information on behalf of other government agencies. It is not the intent of this effort to change that practice.

    IV. Specific Questions

    The NRC is providing an opportunity for the public to submit information and comments on the criteria that the NRC proposes to use to identify administrative requirements for potential modification or elimination. You may suggest other criteria; please provide supporting rationale for any alternative criteria you recommend that the NRC use in conducting its review. The NRC is particularly interested in gathering input in the following areas:

    1. Do the proposed evaluation criteria serve the purposes described in this notice? Why or why not?

    2. The NRC is considering whether the burden reduction minimum is appropriate. Is “significant burden” the appropriate measure? Are the examples given for Criterion 3 appropriate or useful? Should the NRC use different bases for measuring “significant burden,” and if so, what are these measures and how would they result in a more accurate or complete measurement of burden?

    3. The NRC is considering multiple thresholds for different classes of regulated entities, as a single threshold might not be useful to identify burden reductions for all licensee types. What is the appropriate threshold for your entity class (e.g., operating reactor, industrial radiographer, fuel cycle facility)?

    4. Are there other evaluation criteria the NRC should consider using in its retrospective review of administrative regulations? What are those criteria and why?

    V. Public Meetings

    Public input will be critical to identifying potential regulatory changes as well as to provide data on the benefits and costs of existing NRC regulations. The NRC will conduct two public meetings to discuss the Retrospective Review process and recommendations.

    The NRC will publish a notice of the location, time, and agenda of any meetings in the Federal Register, on www.Regulations.gov, and on the NRC's public meeting website at least 10 calendar days before the meeting. Stakeholders should monitor the NRC's public meeting website for information about the public meeting at: http://www.nrc.gov/public-involve/public-meetings/index.cfm.

    Dated at Rockville, Maryland, this 27th day of April, 2018.

    For the Nuclear Regulatory Commission.

    Annette L. Vietti-Cook, Secretary of the Commission.
    [FR Doc. 2018-09359 Filed 5-2-18; 8:45 am] BILLING CODE 7590-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0361; Product Identifier 2017-NM-160-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 18, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0361; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0361; Product Identifier 2017-NM-160-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0215, dated October 24, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The MCAI states:

    The airworthiness limitations for Airbus A320 family aeroplanes, which are approved by EASA, are currently defined and published in the A318, A319, A320 and A321 Airworthiness Limitations Section (ALS) document(s). The Safe Life Airworthiness Limitation Items are specified in ALS Part 1. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition.

    Previously, EASA issued AD 2012-0008 [which corresponds to FAA AD 2015-05-02, Amendment 39-18112 (80 FR 15152, March 23, 2015) (“AD 2015-05-02”)] to require the implementation of the airworthiness limitations as specified in Airbus A318/A319/A320/A321 ALS Part 1 Revision 02, and EASA AD 2014-0141 [which corresponds to FAA AD 2015-22-08, Amendment 39-18313 (80 FR 68434, November 5, 2015) (“AD 2015-22-08”)] to require the implementation of specific life limits for the main landing gear (MLG) upper cardan pin Part Number (P/N) 201163620.

    Since those ADs were issued, studies were conducted in the frame of in-service events or during life extension campaigns, the results of which prompted revision of the life limits of several components installed on A320 family aeroplanes. Consequently, Airbus successively issued Revision 03, Revision 04 and Revision 05 of the A318/A319/A320/A321 ALS Part 1. ALS Part 1 Revision 05 also includes the life limits required by EASA AD 2014-0141. A318/A319//A321 ALS Part 1 Revision 05 issue 02 was issued to provide clarifications.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0008 and EASA AD 2014-0141, which are superseded, and requires accomplishment of the actions specified in A318/A319/A320/A321 ALS Part 1 Revision 05.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0361.

    Relationship of Proposed AD to AD 2015-05-02 and AD 2015-22-08

    This NPRM would not supersede AD 2015-05-02 or AD 2015-22-08. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2015-05-02 and AD 2015-22-08.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 1 Safe Life Airworthiness Limitations (SL-ALI), Revision 05, Issue 02, dated April 19, 2017. This service information describes new maintenance requirements and airworthiness limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

    Differences Between This Proposed AD and the MCAI or Service Information

    The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.

    Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.

    In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.

    To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD. This proposed AD therefore would apply to Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of approval of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.

    Costs of Compliance

    We estimate that this proposed AD affects 1,250 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

    Authority for This Rulemaking

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

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

    This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2018-0361; Product Identifier 2017-NM-160-AD. (a) Comments Due Date

    We must receive comments by June 18, 2018.

    (b) Affected ADs

    This AD affects AD 2015-05-02, Amendment 39-18112 (80 FR 15152, March 23, 2015) (“AD 2015-05-02”) and AD 2015-22-08, Amendment 39-18313 (80 FR 68434, November 5, 2015) (“AD 2015-22-08”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before April 19, 2017.

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

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

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

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

    (d) Subject

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

    (e) Reason

    This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent the failure of certain life-limited parts, which could result in reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 1 Safe Life Airworthiness Limitations (SL-ALI), Revision 05, Issue 02, dated April 19, 2017. The initial compliance times for new or revised tasks are at the applicable times specified in Airbus A318/A319/A320/A321 ALS Part 1 Safe Life Airworthiness Limitations (SL-ALI), Revision 05, Issue 02, dated April 19, 2017, or within 90 days after the effective date of this AD, whichever occurs later.

    (h) No Alternative Actions and Intervals

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

    (i) Terminating Action for AD 2015-05-02 and AD 2015-22-08

    Accomplishing the actions required by this AD terminates all requirements of AD 2015-05-02 and AD 2015-22-08.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (k)(2) of this AD. Information may be emailed to: [email protected]. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0215, dated October 24, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0361.

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

    (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 20, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09070 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0127; Airspace Docket No. 18-AAL-7] RIN 2120-AA66 Proposed Amendment of Class E Airspace; Gustavus, AK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E airspace extending upward from 700 feet above the surface at Gustavus Airport, Gustavus, AK. Airspace redesign is necessary as the FAA transitions from ground-based to satellite-based navigation for the safety and management of instrument flight rules (IFR) operations at this airport.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0127; Airspace Docket No. 18-AAL-7, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198-6547; telephone (206) 231-2253.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Gustavus Airport, Gustavus, AK, to accommodate airspace redesign in support of IFR operations at the airport.

    Comments Invited

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

    Communications should identify both docket numbers (Docket No. FAA-2018-0127; Airspace Docket No. 18-AAL-7) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number).

    Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0127; Airspace Docket No. 18-AAL-7.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198-6547.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Gustavus Airport, Gustavus, AK. The airspace would be redesigned to a polygon approximately 12 miles wide extending to approximately 7 miles northwest and 31 miles southeast of the airport (from 4 miles each side of the 229° bearing of the airport extending from the 6.8-mile radius to 16.7 miles southwest of the airport, and within 3 miles northeast and 7 miles southwest of the airport 135° bearing extending from the 6.8-mile radius to 24 miles southeast of the airport). This airspace redesign is necessary for the safety and management of IFR operations at the airport.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AAL AK E5 Gustavus, AK [Amended] Gustavus Airport, AK (Lat. 58°25′31″ N, long. 135°42′27″ W)

    That airspace upward from 700 feet above the surface within the area bounded by a line beginning at lat. 58°32′19″ N, long. 135°44′54″ W, to lat. 58°11′58″ N, long. 135°02′11″ W, to lat. 58°10′08″ N, long. 135°05′18″ W, to lat. 58°03′38″ N, long. 134°57′10″ W, to lat. 57°59′34″ N, long. 135°10′49″ W, to lat. 57°59′40″ N, long. 135°25′05″ W, to lat. 58°08′36″ N, long. 135°26′55″ W, to lat. 58°25′37″ N, long. 136°00′20″ W, thence to the point of beginning.

    Issued in Seattle, Washington, on April 23, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09103 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0754; Airspace Docket No. 17-ASO-16] RIN 2120-AA66 Proposed Amendment of Class E Airspace, Memphis, TN AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E airspace extending upward from 700 feet above the surface at Memphis International Airport, Memphis, TN. Airspace reconfiguration is necessary due to the decommissioning of the Elvis non-directional radio beacon (NDB), and for the safety and management of instrument flight rules (IFR) operations at this airport. Olive Branch Airport, Olive Branch, MS, would be removed from the airspace description to be reestablished in a separate rulemaking.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to: U. S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Rm. W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2017-0754; Airspace Docket No. 17-ASO-16, at the beginning of your comments. You may also submit and review received comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1700 Columbia Avenue, College Park, Georgia 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:. Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Memphis International Airport, Memphis, TN to support IFR operations at the airport.

    Comments Invited

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

    Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0754; Airspace Docket No. 17-ASO-16.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet or more above the surface within an 8-mile radius of Memphis International Airport, Memphis, TN. The segment extending from the 8-mile radius of the airport to 16 miles west of the Elvis NDB would be removed due to the decommissioning of the Elvis NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport.

    Also, this action would remove the language that excludes the Millington, TN, airspace area to comply with FAA Order 7400.2L, Procedures for Handling Airspace Matters.

    Additionally, the airspace listed in the legal description for Olive Branch Airport, Olive Branch, MS, would be removed and redesignated in a separate rulemaking.

    Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO TN E5 Memphis, TN [Amended] Memphis International Airport, TN (Lat. 35°02′33″ N, long. 89°58′36″ W) General DeWitt Spain Airport (Lat. 35°12′03″ N, long. 90°03′14″ W)

    That airspace extending upward from 700 feet above the surface within an 8-mile radius of Memphis International Airport, and within a 6.4-mile radius of General DeWitt Spain Airport.

    Issued in College Park, Georgia, on April 24, 2018. Geoff Lelliott, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-09091 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0866; Airspace Docket No. 17-ASO-20] RIN 2120-AA66 Proposed Amendment of Class D Airspace, Removal of Class E Airspace, and Establishment of Class E Airspace; Olive Branch, MS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace, remove Class E airspace designated as an extension, and establish Class E airspace extending upward from 700 feet or more above the surface at Olive Branch Airport, Olive Branch, MS. The Olive Branch non-directional radio beacon (NDB) has been decommissioned, requiring the redesign of the airspace. This proposal would replace the outdated term Airport/Facility Directory with the term Chart Supplement in the Class D legal description.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Rm W12-140, Washington, DC 20590; telephone: 202-366-9826. You must identify the Docket No. FAA-2017-0866; Airspace Docket No. 17-ASO-20, at the beginning of your comments. You may also submit and review received comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1700 Columbia Avenue, College Park, GA 30337; telephone 404 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D airspace, remove Class E airspace, and establish Class E airspace at Olive Branch Airport, Olive Branch, MS, to support IFR operations at the airport.

    Comments Invited

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

    Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0866; Airspace Docket No. 17-ASO-20.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal Holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace to a 4.1-mile radius, (from a 4-mile radius) at Olive Branch Airport, Olive Branch, MS, and removing Class E airspace designated as an extension to Class D, due to the decommissioning of the Olive Branch NDB and cancellation of the NDB approach. Also, this action proposes to establish Class E airspace extending upward from 700 feet or more above the surface at Olive Branch Airport, Olive Branch, MS, (this airspace was removed from the Memphis, TN, airspace in a separate rulemaking.

    Additionally, this action would make an editorial change to the Class D airspace legal description replacing Airport/Facility Directory with the term Chart Supplement.

    Class D and Class E airspace designations are published in paragraph 5000, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ASO MS D Olive Branch, MS [Amended] Olive Branch Airport, MS (Lat. 34°58′44″ N, long. 89°47′13″ W)

    That airspace extending upward from the surface to and including 2,900 feet MSL within a 4.1-mile radius of Olive Branch Airport. This Class D airspace area is effective during the specific days and times established in advance by a Notice to Airmen. The effective days and times will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designated as an Extension to a Class D Surface Area. ASO MS E4 Olive Branch, MS [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO MS E5 Olive Branch, MS [New] Olive Branch Airport, MS (Lat. 34°58′44″ N, long. 89°47′13″ W)

    That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Olive Branch Airport.

    Issued in College Park, Georgia, on April 24, 2018. Geoff Lelliott, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-09092 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1214; Airspace Docket No. 17-ASO-24] RIN 2120-AA66 Proposed Amendment of Class E Airspace, Knoxville, TN AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E surface airspace at Knoxville Downtown Island Airport, Knoxville, TN, by adding to the airspace description the exclusion of a 1-mile radius around University of Tennessee Medical Center Heliport, to allow helicopters departing from the heliport to no longer require a clearance. Also, the BENFI non-directional beacon (NDB) has been decommissioned, requiring redesign of Class E airspace extending upward from 700 feet above the surface at McGhee-Tyson Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at these airports. This action also would update the geographic coordinates of Knoxville Downtown Island Airport, McGhee Tyson Airport, and Gatlinburg-Pigeon Forge Airport in the associated Class E airspace areas to coincide with the FAA's aeronautical database.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Bldg Ground Floor, Rm W12-140, Washington, DC 20590; telephone: 1-(800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2017-1214; Airspace Docket No. 17-ASO-24, at the beginning of your comments. You may also submit and review received comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1700 Columbus Avenue, College Park, Georgia 30337, telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace to support IFR operations in the Knoxville, TN, area.

    Comments Invited

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

    Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-1214; Airspace Docket No. 17-ASO-24.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E surface airspace within a 4.5-mile radius of Knoxville Downtown Island Airport, Knoxville, TN, to exclude a 1.0-mile radius around University of Tennessee Medical Center Heliport. The University of Tennessee Medical Center Heliport requires this 1.0- mile cutout below 700 feet from the surface to allow helicopters to depart the heliport without an IFR clearance.

    Also, the BENFI NDB has been decommissioned, requiring airspace reconfiguration of Class E airspace extending upward from 700 feet or more above the surface at McGhee Tyson Airport, Knoxville, TN.

    Additionally, the geographic coordinates of the Knoxville Downtown Island Airport, McGhee Tyson Airport, and Gatlinburg-Pigeon Forge Airport would be adjusted to coincide with the FAA's aeronautical database.

    Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, of FAA Order 7400.11B, dated August 3, 201B, and effective September 15, 201B, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6002 Class E Surface Area Airspace ASO TN E2 Knoxville, TN [Amended] Knoxville Downtown Island Airport, TN (Lat. 35°57′50″ N, long. 83°52′25″ W) University of Tennessee Medical Center Heliport, TN (Lat. 35°56′30″ N, long. 83°56′38″ W)

    Within a 4.5-mile radius of Knoxville Downtown Island Airport, excluding that airspace within a 1.0-mile radius of University of Tennessee Medical Center Heliport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO TN E5 Knoxville, TN [Amended] McGhee-Tyson Airport, TN (Lat. 35°48′34″ N, long. 83°59′43″ W) Gatlinburg-Pigeon Forge Airport, TN (Lat. 35°51′28″ N, long. 83°31′43″ W) Knoxville Downtown Island Airport, TN (Lat. 35°57′50″ N, long. 83°52′25″ W) Monroe County Airport, Madisonville, TN, (Lat. 35°32′43″ N, long. 84°22′49″ W)

    That airspace extending upward from 700 feet above the surface within a 15.4-mile radius of McGhee-Tyson Airport, and within a 13-mile radius of Gatlinburg-Pigeon Forge Airport, and from the 080° bearing from Gatlinburg-Pigeon Forge Airport clockwise to the 210° bearing extending from the 13-mile radius southeast to the 33-mile radius centered on Gatlinburg-Pigeon Forge Airport, and within an 8-mile radius of Knoxville Downtown Island Airport and within a 6.5-mile radius of Monroe County Airport, Madisonville, TN.

    Issued in College Park, Georgia, on April 24, 2018. Geoff Lelliot, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-09089 Filed 5-2-18; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0423; FRL-9977-34-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Base Year Emissions Inventories for the Lebanon and Delaware County Nonattainment Areas for the 2012 Annual Fine Particulate Matter National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve two state implementation plan (SIP) revisions submitted by the Commonwealth of Pennsylvania. These revisions pertain to base year emission inventories for the Lebanon County and Delaware County nonattainment areas for the 2012 annual fine particulate national ambient air quality standard (NAAQS). The Clean Air Act (CAA) requires states to submit a comprehensive, accurate and current inventory of actual emissions from all sources of direct and secondary ambient fine particulate matter less than 2.5 microns in diameter (PM2.5) for all PM2.5 nonattainment areas. This action is being taken under Title I of the CAA.

    DATES:

    Written comments must be received on or before June 4, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0423 at http://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Brian Rehn, (215) 814-2176, or by email at [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    Ambient or outdoor air can contain a variety of pollutants, including particulate matter (PM). Airborne PM can be comprised of either solid or liquid particles, or a complex mixture of particles in both solid and liquid form. The most common airborne PM constituents include sulfate (SO4); nitrate (NO3); ammonium; elemental carbon; organic mass; and inorganic material, referred to as “crustal” material, which can include metals, dust, soil and other trace elements. PM2.5 includes “primary” particles, which are directly emitted into the air by a variety of sources, and “secondary” particles, that are formed in the atmosphere as a result of reactions between precursor pollutants (e.g., SO4 and NO3 from emissions of mobile and stationary sources of oxides of nitrogen and sulfur dioxide combining with ammonia).

    The human health effects associated with long- or short-term exposure to PM2.5 are significant and include premature mortality, aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions and emergency room visits) and development of chronic respiratory disease. Welfare effects associated with elevated PM2.5 levels include visibility impairment, effects on sensitive ecosystems, materials damage and soiling, and climatic and radiative processes.

    On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS to provide increased protection of public health from fine particle pollution (the 2012 annual PM2.5 NAAQS). 78 FR 3086 (January 15, 2013). In that action, EPA strengthened the primary annual PM2.5 standard, lowering the level from 15.0 micrograms per cubic meter (µg/m3) to 12.0 mg/m3. The 2012 annual PM2.5 NAAQS is attained when the 3-year average of the annual arithmetic mean monitored values does not exceed 12.0 mg/m3. See 40 CFR 50.18.

    On January 15, 2015 (80 FR 2206), EPA published area designations, as required by CAA section 107(d)(1), for the 2012 annual PM2.5 NAAQS. Through that designations action, EPA identified as “nonattainment” those areas that were then violating the 2012 annual PM2.5 NAAQS based on quality-assured, certified air quality monitoring data from 2011 to 2013 and those areas that contributed to a violation of the NAAQS in a nearby area. In that action, EPA designated the Delaware County and Lebanon County nonattainment areas as moderate nonattainment for the 2012 annual PM2.5 NAAQS, effective April 15, 2015. See 40 CFR 81.339. Pennsylvania's Delaware County and the Lebanon County nonattainment areas are each comprised of a single county. Under section 172(c)(3) of the CAA, Pennsylvania is required to submit a comprehensive, accurate, and current inventory of actual emissions from all sources (point, nonpoint, nonroad, and onroad) of the relevant pollutants, in each nonattainment area. EPA's “Provisions for Implementation of the PM2.5 NAAQS” (or PM implementation rule), at 40 CFR part 51, subpart Z, sets criteria for which pollutants are to be included by states in the required base year emission inventory. This inventory must include direct PM2.5 emissions, separately reported PM2.5 filterable and condensable emissions, and emissions of the PM2.5 precursors. 40 CFR 51.1008.

    II. Summary of SIP Revision and EPA Analysis

    On May 5, 2017, the Pennsylvania Department of Environmental Protection (PADEP) submitted a formal SIP revision consisting of the 2011 base year emissions inventory for the Delaware County nonattainment area for the 2012 annual PM2.5 NAAQS. On September 25, 2017, PADEP submitted a formal revision consisting of the 2011 base year emission inventory for the Lebanon County nonattainment area for the 2012 annual PM2.5 NAAQS.

    PADEP selected 2011 as its base year for SIP planning purposes, per EPA's PM implementation rule, at 40 CFR 51.1008(a)(1)(i), which requires that the base year inventory year shall be one of the 3 years for which monitored data were used for designations or another technically appropriate inventory year if justified by the state in the plan submission. EPA's nonattainment designations for the 2012 annual PM2.5 NAAQS were made for both the Delaware County and Lebanon County nonattainment areas based on monitoring data from 2011-2013 and thus included 2011. Furthermore, 2011 was the most recent and complete inventory for which emissions could be derived from the 2011 National Emission Inventory Version 2 (NEI v2). PADEP's 2011 base year inventories for both areas include emissions estimates covering the stationary point, area (nonpoint), nonroad mobile, onroad mobile, and source categories.

    EPA's PM2.5 implementation rule requires the base year emissions inventory to include direct PM2.5 emissions, as well as separately reported PM2.5 filterable and condensable emissions, and emissions of the scientific PM2.5 precursors. 40 CFR 51.1008(a)(1)(iv). In its 2011 base year inventory SIP submittals for the Delaware and Lebanon County nonattainment areas, PADEP reported actual annual emissions of directly-emitted PM2.5 emissions (PM2.5 PRI), as well as separately reported PM2.5 filterable and condensable particulate matter (PM CON) emissions. PM CON is matter that exists as a vapor at stack conditions, but becomes a solid or liquid once it exits the stack and is cooled by ambient air. PADEP's base year inventories for these areas also include directly-emitted, primary particulate matter less than 10 microns in diameter (PM10 PRI), emissions precursors that contribute to secondary formation of PM2.5, including sulfur dioxides (SO2), nitrogen oxides (NOX), volatile organic compounds (VOC), and ammonia (NH3) emissions.

    Table 1 summarizes the 2011 emission inventory by source sector for each pollutant or pollutant precursor for the Delaware County 2012 annual PM2.5 nonattainment area, expressed as annual emissions in tons per year (tpy).

    Table 1—Summary of 2011 Emissions of PM2.5, PM10, and PM2.5 Precursors for the Delaware County 2012 Annual PM2.5 NAAQS Nonattainment Area Source sector Annual emissions (tpy) PM10 Primary 1 PM2.5 Primary 2 SO2 NOX VOC NH3 Stationary Point Sources 3 1,671.81 1,496.70 4,975.94 7,641.98 1,393.18 217.50 Area Sources 4 2,502.73 998.82 2,055.13 2,875.85 6,779.07 206.47 Onroad Mobile Sources 5 328.61 179.01 31.05 5,643.30 2,999.73 130.41 Nonroad Mobile Sources 128.87 121.78 3.498 1,123.96 1,787.97 1.759 Total Emissions 4,632.02 2,796.30 7,065.62 17,285.08 12,959.95 556.14 1 Primary PM particles are emitted directly to the air from a source and include both filterable particulate and condensable components. Condensable PM (PM CON) exists as a vapor at stack conditions but exists as a solid or liquid once it exits the stack and is cooled by ambient air. All PM CON is smaller than 2.5 microns in diameter and, therefore, represents condensable matter for both PM10 and PM2.5. PM10 Primary is the sum of filterable PM10 (PM10 FIL) and PM CON. 2 PM2.5 Primary is the sum of filterable PM2.5 and PM CON. 3 The PM10 Primary value for stationary point sources includes a condensable component of 656.39 tpy. Because PM10 includes PM2.5 by definition, the PM2.5 Primary value for stationary point sources includes the same condensable component of 656.39 tpy. 4 PMio Primary includes PM10 FIL and PM CON. PM2.5 Primary includes PM2.5 FIL and PM CON. Condensable emissions for the area source sector are a subset of PM Primary emissions, or 164.93 tpy. 5 Condensable emissions for the onroad and nonroad sectors are not separately calculated by the MOVES model, and are therefore included within the PM10 Primary and PM2.5 Primary values of this table.

    Table 2 summarizes the 2011 emission inventory by source sector for each pollutant or pollutant precursor for the Lebanon County 2012 annual PM2.5 nonattainment area, expressed as annual emissions in tons per year.

    Table 2—Summary of 2011 Emissions of PM2.5, PM10, and PM2.5 Precursors for the Lebanon County 2012 Annual PM2.5 NAAQS Nonattainment Area Source sector Annual emissions (tpy) PM10 Primary 1 PM2.5 Primary 2 SO2 NOX VOC NH3 Stationary Point Sources 3 136.64 80.68 278.53 690.30 182.37 17.44 Area Sources 4 4,462.63 1,287.21 373.62 869.09 5,924.16 3,843.03 Onroad Mobile Sources 5 140.23 92.50 11.21 2,937.04 1,331.72 49.15 Nonroad Mobile Sources 64.48 61.55 1.684 615.91 668.43 0.751 Total Emissions 4,803.98 1,521.94 665.05 5,112.33 8,106.69 3,910.37 1 Primary PM particles are emitted directly to the air from a source and include both filterable particulate and condensable components. PM10 Primary is the sum of filterable PM10 FIL and PM CON. 2 PM2.5 Primary is the sum of filterable PM2.5 and PM CON. 3 The PM10 Primary value for stationary point sources includes a condensable component of 48.04 tpy. Because PM10 includes PM2.5 by definition, the PM2.5 Primary value for stationary point sources includes the same condensable component of 48.04 tpy. 4 PM10 Primary includes PM10 FIL and PM CON. PM2.5 Primary includes PM2.5 FIL and PM CON. Condensable emissions for the area source sector are a subset of PM Primary emissions, or 38.88 tpy. 5 Condensable emissions for the onroad and nonroad sectors are not separately calculated by the MOVES model, and are therefore included within the PM10 Primary and PM2.5 Primary values of this table.

    Stationary point sources are large, stationary, and identifiable sources of emissions that release pollutants into the atmosphere. PADEP extracted data for PM2.5 source emissions from the 2011 NEI v2, which receives input from each state's annual inventory estimates. For the Delaware County nonattainment area, major sources of PM2.5 emissions and precursors have historically been refineries, electric power plants, and pulp and paper mills. For the Lebanon County nonattainment area, the major sources include an electric power plant and a mineral processing facility.

    Area sources are stationary, nonpoint sources that are too small and numerous to be inventoried individually. Area sources are inventoried at the county level and aggregated with like categories. Area sources are typically estimated by multiplying an emission factor by some collective activity for each source category, such as population or employment data. PADEP accounted for control efficiency, rule effectiveness, and rule penetration in its area source calculations, where possible. PADEP's SIP submittals for the Delaware County and Lebanon County nonattainment areas each lists these area source emissions by source category in an appendix to the SIP.

    Onroad sources of emissions include motor vehicles, such as cars, trucks, and buses, which are operated on public roadways. PADEP modelled onroad emissions using EPA's Motor Vehicle Emission Simulator (MOVES) model, version MOVES2014, coupled with vehicle miles of travel activity levels. PADEP reports these onroad emissions estimates in an appendix of each area's SIP submittal by pollutant and by highway source category.

    Nonroad sources are mobile, internal combustion sources other than highway motor vehicles, including, but not limited to, lawn and garden equipment, recreational vehicles, construction and agricultural equipment, and industrial equipment. However, emissions from locomotives, commercial marine vessels, and aircraft are included with the point and area source sectors. Nonroad mobile source emissions from different source categories are calculated using various methodologies, primarily by use of EPA's MOVES NONROAD emissions model or from EPA's National Mobile Inventory Model (NMIM). PADEP reports its nonroad emissions in an appendix to each area's base year SIP submittal.

    EPA reviewed Pennsylvania's 2011 base year emission inventory submissions including results, procedures, and methodologies for the Delaware County and Lebanon County nonattainment areas and found them to be acceptable and approvable under sections 110 and 172(c)(3) of the CAA. EPA prepared a Technical Support Document (TSD) for each of the Delaware County and Lebanon County nonattainment areas in support of this rulemaking. These TSDs are available online at http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2017-0423.

    III. Proposed Action

    EPA is proposing to approve Pennsylvania's SIP revision dated May 5, 2017 for the base year emission inventory for the Delaware County 2012 annual PM2.5 NAAQS nonattainment area and Pennsylvania's SIP revision dated September 25, 2017 for the base year emission inventory for the Lebanon County 2012 annual PM2.5 NAAQS nonattainment area. EPA is proposing to approve the base year emission inventories for these areas because the inventories for PM2.5 and its precursors were prepared in accordance with the applicable requirements of sections 110 and 172(c)(3) of the CAA and its implementing regulations including 40 CFR 51.1008. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. EPA is taking a single rulemaking action proposing to approve both of these SIP submittals, which were submitted separately, as they address the same emission inventory requirement for two different moderate 2012 annual PM2.5 nonattainment areas in the same state. However, if EPA receives adverse comment on the proposed approval affecting only one of these SIP revisions, EPA reserves the right to take separate final action on the remaining SIP revision if relevant comments are not received on that SIP revision.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 proposed action:

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

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

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

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

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

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

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

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

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

    • Does not provide 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, this proposed rule to approve the base year emission inventory SIP revisions for the Delaware County and Lebanon County nonattainment areas under the 2012 annual PM2.5 NAAQS does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 19, 2018. Cosmo Servidio, Regional Administrator, Region III.
    [FR Doc. 2018-09201 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2018-0211; FRL 9977-27-Region 7] Air Plan Approval; Missouri; Regional Haze Plan and Prong 4 (Visibility) for the 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to take three actions regarding the Missouri State Implementation Plan (SIP). The three SIP actions relate to how Missouri addresses transport as related to visibility and the 2012 Fine Particulate Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), 2010 Sulfur Dioxide (SO2), and 2008 Ozone National Ambient Air Quality Standards (NAAQS). EPA is proposing approval of the portion of Missouri's September 5, 2014, Five-year Progress Report for the State of Missouri Regional Haze Plan and a subsequently submitted letter dated July 31, 2017, which clarifies that the state was changing from reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross State Air Pollution Rule (CSAPR) for certain regional haze requirements; convert EPA's limited approval/limited disapproval of Missouri's regional haze plan to a full approval; and approve the states' submissions addressing the Clean Air Act (CAA or the Act) provisions that prohibit emissions activity in one state from interfering with measures to protect visibility in another state (prong 4) of Missouri's infrastructure SIP submittals for the 2012 Fine Particulate Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), and 2010 Sulfur Dioxide (SO2) NAAQS.

    DATES:

    Comments must be received on or before June 4, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No EPA-R07-OAR-2018-0211 to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Tracey Casburn, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7016, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

    I. Background Information A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR B. Infrastructure SIPs II. What are the prong 4 requirements? III. What is EPA's analysis of how Missouri addressed prong 4 and regional haze? IV. Proposed Action V. Statutory and Executive Order Reviews I. Background Information A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR

    Section 169A(b)(2)(A) of the CAA requires states to submit regional haze SIPs that contain such measures as may be necessary to make reasonable progress towards the natural visibility goal at Class 1 areas, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. Under the Regional Haze Rule (RHR), adopted in 1999, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to visibility impairment in a Class I area.1 Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.2 EPA provided states with this flexibility in the 1999 RHR, and further refined the criteria for assessing whether an alternative program provides for greater reasonable progress in two subsequent rulemakings.3

    1See 64 FR 35714 (July 1, 1999).

    2See 40 CFR 51.308(e)(2).

    3 See 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

    EPA demonstrated that CAIR would achieve greater reasonable progress than BART in revisions to the RHR made in 2005.4 In those revisions, EPA amended its regulations to provide that states participating in the CAIR cap-and-trade programs pursuant to an EPA-approved CAIR SIP or states that remain subject to a CAIR Federal Implementation Plan (FIP) need not require affected BART-eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO2 and nitrogen oxides (NOX). As a result of EPA's determination that CAIR was “better-than-BART,” a number of states in the CAIR region, including Missouri, relied on the CAIR cap-and-trade programs as an alternative to BART for EGU emissions of SO2 and NOX in designing their regional haze SIPs. These states also relied on CAIR as an element of a long-term strategy (LTS) for achieving reasonable progress. However, in 2008, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded CAIR to EPA, which it did without vacatur to preserve the environmental benefits provided by CAIR.5 On August 8, 2011, acting on the DC Circuit's remand, EPA promulgated CSAPR to replace CAIR and issued FIPs to implement the rule in CSAPR-subject states.6 Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program.

    4 CAIR created regional cap-and-trade programs to reduce SO2 and NOX emissions in 27 eastern states (and the District of Columbia), including Alabama, that contributed to downwind nonattainment or interfered with maintenance of the 1997 8-hour ozone NAAQS or the 1997 PM2.5 NAAQS. See 70 FR 39104.

    5North Carolina v. EPA, 550 F.3d 1176, 1178 (DC Cir. 2008).

    6 CSAPR requires 28 eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: The 1997 ozone NAAQS, the 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO2, annual NOX, and/or ozone-season NOX by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 budgets applying to emissions in 2017 and later years. See 76 FR 48208.

    Due to the DC Circuit's 2008 ruling that CAIR was “fatally flawed” and its resulting status as a temporary measure following that ruling, EPA could not fully approve regional haze SIPs to the extent that they relied on CAIR to satisfy the EGU BART requirement. On these grounds, EPA finalized a limited disapproval of Missouri's regional haze SIP on June 7, 2012, triggering the requirement for EPA to promulgate a FIP unless Missouri submitted, and EPA approved, a SIP revision that corrected the deficiency.7 EPA finalized a limited approval of Missouri's regional haze SIP on June 26, 2012, as meeting the remaining applicable regional haze requirements set forth in the CAA and the RHR.8

    7See 77 FR 33642. EPA finalized limited disapprovals of fourteen states' regional haze SIP submissions that relied on CAIR in this action, including Missouri's.

    8See 77 FR 38007.

    In the June 7, 2012 limited disapproval action, EPA also amended the RHR to provide that participation by a state's EGUs in a CSAPR trading program for a given pollutant—either a CSAPR federal trading program implemented through a CSAPR FIP or an integrated CSAPR state trading program implemented through an approved CSAPR SIP revision—qualifies as a BART alternative for those EGUs for that pollutant.910 Since EPA promulgated this amendment, numerous states covered by CSAPR have come to rely on the provision through either SIPs or FIPs.11

    9See 40 CFR 51.308(e)(4).

    10 Legal challenges to the CSAPR-Better-than-BART rule from state, industry, and other petitioners are pending. Utility Air Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).

    11 EPA has promulgated FIPs relying on CSAPR participation for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 (July 6, 2012). EPA has approved Minnesota's and Wisconsin's SIPs relying on CSAPR participation for BART purposes. See 77 FR 34801, 34806 (June 12, 2012) for Minnesota and 77 FR 46952, 46959 (August 7, 2012) for Wisconsin.

    Numerous parties filed petitions for review of CSAPR in the DC Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR.12 The DC Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the DC Circuit to resolve remaining issues in accordance with the high court's ruling.13 On remand, the DC Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states.14 The remanded budgets include the Phase 2 SO2 emissions budgets for Alabama, Georgia, South Carolina, and Texas and the Phase 2 ozone-season NOX budgets for eleven states. This litigation ultimately delayed implementation of CSAPR for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. Thus, the rule's Phase 2 budgets that were originally promulgated to begin on January 1, 2014, began on January 1, 2017.

    12EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (DC Cir. 2012).

    13EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).

    14EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (DC Cir. 2015).

    On November 10, 2016, EPA published a notice of proposed rulemaking (NPRM) explaining the Agency's belief that the potentially material changes to the scope of CSAPR coverage resulting from the DC Circuit's remand will be limited to the withdrawal of the FIP provisions providing SO2 and annual NOX budgets for Texas and ozone-season NOX budgets for Florida. This is due, in part, to EPA's approval of the portion of Alabama's October 26, 2015, SIP submittal adopting Phase 2 annual NOX and SO2 budgets equivalent to the Federally-developed budgets and to commitments from Georgia and South Carolina to submit SIP revisions adopting Phase 2 annual NOX and SO2 budgets equal to or more stringent than the Federally-developed budgets.15 Since publication of the NPRM, Georgia and South Carolina have submitted these SIP revisions to EPA.16 In the NPRM, EPA also proposed to determine that the limited changes to the scope of CSAPR coverage do not alter EPA's conclusion that CSAPR remains “better-than-BART”; that is, that participation in CSAPR remains available as an alternative to BART for EGUs covered by the trading programs on a pollutant-specific basis. On September 21, 2017, Administrator Pruitt signed the final action, “Interstate Transport of Fine Particulate Matter: Revision of Federal Implementation Plan Requirements for Texas.” In this action, the agency removed Texas from CSAPR and affirmed the continued validity of the Agency's 2012 determination that participation in CSAPR meets the Regional Haze Rule's criteria for an alternative to the application of source-specific BART.

    15See 81 FR 78954.

    16 Georgia's rulemaking to adopt the Phase 2 annual NOX and SO2 budgets became state effective on July 20, 2017, and the State will submit a SIP revision to EPA in the near future. South Carolina submitted a SIP revision to EPA for parallel processing on May 26, 2017, to adopt the Phase 2 annual NOX and SO2 budgets and that action was finalized by EPA in October 2017. See 82 FR 47936.

    On July 31, 2017, the State of Missouri submitted a letter to EPA clarifying that the state had intended its Five-year Progress Report to revise its regional haze SIP to rely on its participation in the CSAPR trading programs for NOX and SO2 to satisfy the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOX and SO2 from electric generating units, pursuant to the option provided in 40 CFR 51.308(e)(4) (the “CSAPR-better-than-BART” provision). This letter has been added to the docket for this action and to the docket for the original action approving the Five-year progress report (EPA-R07-OAR-2015-0581).

    EPA was not aware, at the time it approved Missouri's Five-year Progress Report, that the state intended that submission to also serve as a SIP revision substituting reliance on CAIR with reliance on CSAPR pursuant to 40 CFR 51.308(e)(4). With this understanding, we are now proposing to take an additional action on Missouri's Five-year Progress Report and to approve that submission, in conjunction with the clarification letter, as satisfying the SO2 and NOX requirements in 40 CFR 51.308(d)(3) and (e) for EGUs formerly subject to CAIR. If EPA finalizes this proposal, we would also convert the limited approval/limited disapproval of Missouri's regional haze plan to a full approval.

    B. Infrastructure SIPs

    By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years (or less, if the Administrator so prescribes) after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions, which are made for satisfying the requirements of sections 110(a)(1) and 110(a)(2), as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time at which the state develops and submits the submission for a new or revised NAAQS.

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

    Through this action, EPA is proposing to approve the prong 4 portion of Missouri's infrastructure SIP submissions for the 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS. All other applicable infrastructure SIP requirements for these SIP submissions have been or will be addressed in separate rulemakings. A brief background regarding the NAAQS relevant to this proposal is provided below. For comprehensive information on these NAAQS, please refer to the Federal Register notices cited in the following subsections.

    1. 2010 1-Hour SO2 NAAQS

    On June 2, 2010, EPA revised the 1-hour primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations.17 States were required to submit infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013. Missouri submitted an infrastructure SIP submission for the 2010 1-hour SO2 NAAQS on July 08, 2013. This proposed action only addresses the prong 4 element of that submission.18

    17See 75 FR 35520 (June 22, 2010).

    18 The other portions of Missouri's July 08, 2013, SO2 infrastructure submission are being addressed in a separate EPA action. See the docket for EPA-R07-OAR-2017-0515.

    2. 2010 1-Hour NO2 NAAQS

    On January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 ppb, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations.19 States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013. Missouri submitted infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS on April 30, 2013. This proposed action only addresses the prong 4 element of those submissions.20

    19See 75 FR 6474 (February 9, 2010).

    20 The other portions for Missouri's April 30, 2013, NO2 infrastructure submissions are being addressed in a separate EPA action. See the docket for EPA-R07-OAR-2017-0268.

    3. 2012 PM2.5 NAAQS

    On December 14, 2012, EPA revised the annual primary PM2.5 NAAQS to 12 micrograms per cubic meter (μg/m3).21 States were required to submit infrastructure SIP submissions for the 2012 PM2.5 NAAQS to EPA no later than December 14, 2015. Missouri submitted an infrastructure SIP submission for the 2012 PM2.5 NAAQS on October 14, 2015. This proposed action only addresses the prong 4 element of that submission.22

    21See 78 FR 3086 (January 15, 2013).

    22 The other portions of Missouri's December 9, 2015, PM2.5 infrastructure submission are being addressed in separate EPA actions. See the docket for EPA-R07-OAR-2017-0513.

    4. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075 parts per million.23 States were required to submit infrastructure SIP submissions for the 2008 8-hour Ozone NAAQS to EPA no later than March 12, 2011. Missouri submitted an infrastructure SIP for the 2008 8-hour Ozone NAAQS on July 8, 2013. This proposed action only addresses the prong 4 element of that submission.24

    23See 73 FR 16436 (March 27, 2008).

    24 The other portions of Missouri's July 8, 2013, ozone infrastructure SIP submission are being addressed in a separate EPA action. See the docket for EPA-R07-OAR-2015-0356.

    II. What are the prong 4 requirements?

    The prong 4 requirement of CAA section 110(a)(2)(D)(i)(II) requires a state's implementation plan to contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of the CAA (which includes sections 169A and 169B). On September 13, 2013, the EPA issued Guidance on the Infrastructure State Implementation Plan (SIP) Elements Under Clean Air Act Sections 110(a)(1) and 110(a)(2) (“2013 Guidance”).25 EPA developed this document to provide states with guidance for infrastructure SIPs for any new or revised NAAQS. The 2013 Guidance states that the prong 4 requirements are satisfied by an approved SIP provision that EPA has found to adequately address any contribution of that state's sources that impacts the visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

    25 “Guidance on the Infrastructure State Implementation Plan (SIP) Elements Under Clean Air Act Sections 110(a)(1) and 110(a)(2); Memorandum from Stephen D. Page, September 13, 2013.

    The 2013 Guidance lays out how a state's infrastructure SIP may satisfy prong 4. One way that a state can meet the requirements is via confirmation in its infrastructure SIP submission that the state has an approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

    Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze RPGs for mandatory Class I areas in other states.

    III. What is EPA's analysis of how Missouri addressed prong 4 and regional haze?

    Each of Missouri's infrastructure SIP submittals (2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5) relied on the State having a fully approved regional haze SIP to satisfy its prong 4 requirements. However, at the time of those submittals, EPA had not fully approved Missouri's regional haze SIP, as the Agency issued a limited disapproval of the State's original regional haze plan on June 7, 2012. As detailed earlier in this notice, EPA is proposing to convert EPA's limited approval/limited disapproval of Missouri's regional haze plan to a full approval because final approval of Missouri's intended SIP revision relying on CSAPR pursuant to 40 CFR 51.308(e)(4) would correct the deficiencies that led to EPA's limited approval/limited disapproval of the State's regional haze SIP. Because a state may satisfy prong 4 requirements through a fully approved regional haze SIP, EPA is therefore also proposing to approve the prong 4 portion of Missouri's 2010 1-hour NO2, 2010 1-hour SO2, 2012 annual PM2.5, and 2008 8-hour Ozone infrastructure SIP submissions.

    IV. Proposed Action

    As described above, EPA is proposing to take the following actions: (1) Approve the portion of Missouri's September 5, 2014 Five-year Progress Report for the State of Missouri Regional Haze Plan which, as clarified by the July 31, 2017 letter, identified the state's change from reliance on CAIR to a reliance on the CSAPR FIP for certain regional haze requirements; (2) convert EPA's limited approval/limited disapproval of Missouri's regional haze plan to a full approval; and (3) approve the state's infrastructure SIP submissions addressing the CAA prong 4 requirements for the 2008 Ozone, 2012 PM2.5, 2010 NO2, and 2010 SO2 NAAQS.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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).

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: April 17, 2018. Karen A. Flournoy, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:

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

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 2. In § 52.1320 the table in paragraph (e) is amended by revising entry (70), and adding entry (74) in numerical order.

    The revision and addition reads as follows:

    § 52.1320 Identification of plan.

    (e)* * *

    EPA-Approved Missouri Nonregulatory SIP Provisions Name of nonregulatory SIP revision Applicable geographic or nonattainment area State submittal date EPA approval date Explanation *         *         *         *         *         *         * (70) State Implementation Plan (SIP) Revision for Regional Haze (2014 Five-Year Progress Report) Statewide 9/5/2014 [date of final publication in the Federal Register] [Final rule Federal Register citation] Missouri submitted a clarification letter to its Five-year Progress Report on July 31, 2017 that is part of this action. [EPA-R07-OAR-2015-0581; FRL-9949-68-Region 7]; [EPA-R07-OAR-2018-0211; FRL-9977-27-Region 7.] *         *         *         *         *         *         * (74) Sections 110(a)(2) Infrastructure Prong 4 Requirements for the 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide, and the 2012 Fine Particulate Matter NAAQS Statewide 7/8/2013; 8/30/2013; 7/8/2013; 10/14/2015 [date of final publication in the Federal Register] [Final rule Federal Register citation] This action approves the following CAA elements: 110(a)(2)(D)(i)(II)—prong 4.
  • [EPA-R07-OAR-2018-0211; FRL-9977-27-Region 7.]
  • 3. Amend § 52.1339 by revising Paragraph (a) and removing paragraphs (c) through (e) to read as follows:
    § 52.1339 Visibility protection

    (a) The requirements of section 169A of the Clean Air Act are met because the regional haze plan submitted by Missouri on August 5, 2009, and supplemented on January 30, 2012, in addition to the 5-year progress report submitted on September 5, 2014, and supplemented by state letter on July 31, 2017, includes fully approvable measures for meeting the requirements of the Regional Haze Rule including the requirements of 40 CFR 51.308(d)(3) and 51.308(e) with respect to emissions of NOX and SO2 from electric generating units.

    [FR Doc. 2018-09211 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2016-0476; FRL-9977-01-Region 6] Approval and Promulgation of Implementation Plans; Texas; Attainment Demonstration for the Dallas/Fort Worth 2008 Ozone Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve the ozone attainment demonstration State Implementation Plan (SIP) revisions for the Dallas/Fort Worth (DFW) moderate ozone nonattainment area under the 2008 ozone National Ambient Air Quality Standard (NAAQS) submitted by the State of Texas (the State). Specifically, EPA is proposing approval of the attainment demonstration, a reasonably available control measures (RACM) analysis, the contingency measures plan in the event of failure to attain the NAAQS by the applicable attainment date, and the associated Motor Vehicle Emissions Budgets (MVEBs) for 2017, which is the attainment year for the area.

    DATES:

    Written comments must be received on or before June 4, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2016-0476, at http://www.regulations.gov or via email to [email protected]. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Robert M. Todd, 214-665-2156, [email protected]. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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

    FOR FURTHER INFORMATION CONTACT:

    Robert M. Todd, 214-665-2156, [email protected]. To inspect the hard copy materials, please schedule an appointment with Mr. Todd or Mr. Bill Deese at 214-665-7253.

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Background II. The EPA's Evaluation A. Review of Eight-Hour Attainment Demonstration Modeling and Weight of Evidence 1. What is a photochemical grid model? 2. Model Selection 3. What episode did Texas choose to model? 4. How well did the model perform? 5. Once the base case is determined to be acceptable, how is the modeling used for the attainment demonstration? 6. What did the results of TCEQ's 2017 future year attainment demonstration modeling show? 7. What are EPA's conclusions of the modeling demonstration? 8. Weight of Evidence (WOE) a. Background b. What additional modeling-based evidence did texas provide? c. Other Non-Modeling WOE d. Other WOE Items From Texas Not Currently Quantified With Modeling: Additional Programs/Reductions, etc. 9. Is the 8-hour attainment demonstration approvable? B. Review of Other Plan Requirements 1. Emissions Inventory (EI) 2. Nonattainment new source review (NNSR) 3. Motor vehicle inspection and maintenance (I/M) 4. Reasonable further progress (RFP) 5. Reasonably available control technology (RACT) 6. Reasonably available control measures (RACM) 7. Attainment motor vehicle emission budgets (MVEBs) 8. Contingency measures plan C. CAA Section 110(l) Analysis III. Proposed Action IV. Statutory and Executive Order Reviews I. Background

    In 2008 we revised the 8-hour ozone primary and secondary NAAQS to a level of 0.075 parts per million (ppm) or 75 parts per billion (ppb) to provide increased protection of public health and the environment (73 FR 16436, March 27, 2008). The 2008 ozone NAAQS revised the 1997 8-hour ozone NAAQS of 0.08 ppm. The DFW area was classified as a “Moderate” ozone nonattainment area (NAA) for the 2008 ozone NAAQS and initially given an attainment date of no later than December 31, 2018 (77 FR 30088 and 77 FR 30160, May 21, 2012). The DFW Moderate ozone NAA for the 2008 ozone standard consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant and Wise counties (DFW NAA).

    On December 23, 2014, the DC Circuit Court of Appeals issued a decision rejecting, among other things, our attainment deadlines for the 2008 ozone nonattainment areas, finding that we did not have statutory authority under the CAA to extend those deadlines to the end of the calendar year. NRDC v. EPA, 777 F.3d 456, 464-69 (DC Cir. 2014). Consistent with the Court's decision to vacate that portion of the rule, we modified the attainment deadlines for all nonattainment areas for the 2008 ozone NAAQS, and set the attainment deadline for all 2008 Moderate ozone nonattainment areas, including the DFW NAA as July 20, 2018 (80 FR 12264, March 6, 2015).

    On July 10, 2015, Texas submitted a SIP revision for the DFW NAA based on an attainment date of December 31, 2018. Because that date was vacated by the Court, Texas had to further revise its SIP to address an attainment date of July 20, 2018 which it submitted on August 5, 2016.1 The portion of the July 10, 2015 SIP submittal that was not impacted by the Court's decision was the contingency measures plan portion as Texas was able to address the July 20, 2018 attainment deadline for this portion of the plan. Because the State revised and replaced the other portions of the 2015 SIP that were impacted by the Court's decision, with the August 5, 2016 submittal, the remainder of the 2015 submittal is superseded by the August 5, 2016 submittal. See the docket for copies of these submittals.

    1 In the DFW AD SIP revision for the 2008 eight-hour ozone NAAQS submitted to the EPA on July 10, 2015, a commitment was made to address the D.C. Circuit's decision that changed the attainment deadlines for the 2008 eight-hour ozone NAAQS to a July 20, 2018 attainment date and a 2017 attainment year. The 2016 SIP revision includes a new photochemical modeling analysis, a weight of evidence analysis, and a reasonably available control measures analysis that reflect the 2017 attainment year.

    The August 5, 2016 submittal is designed to demonstrate attainment of the 2008 ozone NAAQS by the attainment date of July 20, 2018 and relies, in part, on a variety of controls on minor and major stationary sources and controls on mobile source emissions, achieved through a combination of Federal, State and Local measures. These measures are projected to reduce emissions of NOX and VOC in the DFW NAA.2 The measures that have been relied on in this demonstration have been approved in prior Federal Register (FR) actions, as noted below. The Texas Commission on Environmental Quality (TCEQ or the State) used photochemical modeling and other corroborative evidence to predict the improvement in ozone levels that will occur due to these controls while accounting for growth in the DFW NAA.

    2 NOX and VOC are precursors to ozone formation. Additional information on ozone formation and the NAAQS is provided on the EPA website: https://www.epa.gov/ozone-pollution. Additional information on the history of the Texas and DFW SIPs is provided on the TCEQ website: https://www.tceq.texas.gov/airquality/sip and in the proposed rule to address the DFW attainment demonstration under the 1997 ozone NAAQS, provided in docket ID EPA-R06-OAR-2007-0524.

    Per the requirements in our final rule titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements; Final Rule,” 80 FR 12264 (March 6, 2015), SIP Requirements Rule (SRR), an area classified as Moderate under 40 CFR 51.1103(a)—in this case is the DFW NAA—shall be subject to the requirements applicable for that classification under CAA section 182(b).3 For each nonattainment area, under 40 CFR 51.1108, the state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. Consistent with CAA section 182(b), each state in which a Moderate Area is located shall, with respect to the Moderate Area, submit plan provisions for RFP, RACM, RACT, an emissions inventory, an emissions statement, motor vehicle I/M, a NNSR program with the classification's general offset requirements, and control measures needed to provide for attainment by the applicable attainment deadline.4

    3 On February 16, 2018 the DC Circuit issued a decision on the 2008 ozone NAAQS SRR. The adverse holdings of the case do not affect our proposal action.

    4 We approved the motor vehicle I/M, NNSR, and offsets for the DFW Moderate NAA under the 2008 ozone NAAQS at 82 FR 27122 (June 14, 2017). We approved the NOX rules on April 13, 2016 at 81 FR 21747 and NOX RACT for all affected sources but for one cement manufacturing company at 82 FR 44320 (September 22, 2017); and the VOC rules and VOC RACT were approved December 21, 2017 at 82 FR 60546. We approved the RFP requirements at 81 FR 88124 (December 7, 2016). We approved the emissions inventory at 80 FR 9204 (February 20, 2015). We previously approved provisions for an emissions statement program for the 1997 1-hour ozone NAAQS at 59 FR 44036 (August 26, 1994). In a separate action, we expect to propose to convert the conditional approval of the cement company to a full approval as RACT and propose that the emissions statement program for the DFW Moderate NAA meets the 2008 ozone NAAQS requirements. These two SIP elements are separate from a review of an attainment demonstration SIP.

    The attainment demonstration requirements for the 2008 ozone standard can be found in 40 CFR 51.1108 (Modeling and attainment demonstration requirements) and 40 CFR 51.112 (Demonstration of adequacy); these requirements are described fully in the Technical Support Documents (TSD), provided in the docket for this proposed action.

    In general, an ozone attainment demonstration includes a photochemical modeling analysis and other evidence (referred to as “Weight of Evidence”) (WOE) showing how an area will achieve the standard as expeditiously as practicable, but no later than the attainment date specified for its classification.

    Below we discuss the statutory and regulatory requirements that prescribe our review of the State's attainment demonstration, the elements in the State's submittal, and our evaluation of those elements comprising the attainment demonstration SIP. As stated above, we previously approved several of the State's nonattainment area plan requirements. We are evaluating the attainment demonstration and its associated MVEBs, RACM, and contingency measures plan in the event of failure to attain the NAAQS by the applicable attainment date in this action.

    II. The EPA's Evaluation A. Review of Eight-Hour Attainment Demonstration Modeling and Weight of Evidence

    EPA's regulations at 40 CFR 51.1108(c) specifically require that areas classified as moderate and above submit a modeled attainment demonstration based on a photochemical grid modeling evaluation or any other analytical method determined by the Administrator to be at least as effective as photochemical modeling. Section 51.1108(c) also requires each attainment demonstration to be consistent with the provisions of 40 CFR 51.112, including Appendix W to 40 CFR part 51 (i.e., “EPA's Guideline on Air Quality Models,” 70 FR 68218, November 9, 2005 and 82 FR 5182, January 17, 2017). See also EPA's “Guidance on the Use of Models and Other Analyses for Air Quality Goals in Attainment Demonstrations for Ozone, PM2.5, and Regional Haze,” April 2007 and “Draft Modeling Guidance for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze,” December 2014 (hereafter referred to as “EPA's 2007 A.D. guidance” and “EPA's 2014 Draft A.D. guidance”), which describe criteria that an air quality model and its application should meet to qualify for use in an 8-hour ozone attainment demonstration. For the detailed review of modeling and the WOE analyses and EPA's analysis of the DFW 8-hour Ozone attainment demonstration see the “Modeling and Other Analyses Attainment Demonstration” (MOAAD) Technical Support Document (TSD). The MOAAD TSD also includes a complete list of applicable modeling guidance documents. These guidance documents provide the overall framework for the components of an attainment demonstration, how the modeling and other analyses should be conducted, and overall guidance on the technical analyses for attainment demonstrations.

    As with any predictive tool, there are inherent uncertainties associated with photochemical modeling. EPA's guidance recognizes these uncertainties and provides approaches for considering other analytical evidence to help assess whether attainment of the NAAQS is demonstrated. This process is called a WOE determination. EPA's modeling guidance (updated in 1996, 1999, and 2002) discusses various WOE approaches. EPA's modeling guidance has been further updated in 2005, 2007 and a Draft in 2014 for the 1997 and 2008 8-hour ozone attainment demonstration procedures to include a WOE analysis as a part of any attainment demonstration. This guidance recommends that all attainment demonstrations include supplemental analyses beyond the recommended modeling. These supplemental analyses would provide additional information such as data analyses, and emissions and air quality trends, which would help strengthen the overall conclusion drawn from the photochemical modeling. EPA's Guidance for 1997 8-hour ozone SIPs recommended that a WOE analysis be included as part of any attainment demonstration SIP where the modeling results predict Future Design Values (FDVs) ranging from 82 to less than 88 ppb (EPA's 2005 and 2007 A.D. Guidance documents).5 EPA's recent 2014 Draft A.D. Guidance removed the specific range and indicated that WOE should be analyzed when the results of the modeling attainment test are close to the standard. EPA's interpretation of the Act to allow a WOE analysis has been upheld. See 1000 Friends of Maryland v. Browner, 265 F. 3d 216 (4th Cir. 2001) and BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003).

    5 A.D. is Attainment Demonstration.

    TCEQ submitted the DFW attainment demonstration SIP with photochemical modeling and a WOE analyses on August 5, 2016. The results of the photochemical modeling and WOE analyses are discussed below.

    1. What is a photochemical grid model?

    Photochemical grid modeling is the state-of-the-art method for predicting the effectiveness of control strategies in reducing ozone levels. The models use a three-dimensional grid to represent conditions in the area of interest. TCEQ chose to use the Comprehensive Air Model with Extensions (CAMx), Version 6.20 photochemical model for this attainment demonstration SIP. The model is based on well-established treatments of advection, diffusion, deposition, and chemistry. TCEQ has used the CAMx model in other SIPs and EPA has approved many SIPs using CAMx based modeling analyses. 40 CFR part 51 Appendix W indicates that photochemical grid models should be used for ozone SIPs and lists a number of factors to be considered in selecting a photochemical grid model to utilize. EPA has reviewed the TCEQ's reasons for selecting CAMx and EPA agrees with the choice by TCEQ to utilize CAMx for this SIP.

    In this case, TCEQ has developed a modeling grid system that consists of three nested grids. The outer grid stretches from west of California to east of Maine and parts of the Atlantic Ocean to the east, and from parts of southern Canada in the north to and much of Mexico to the south extending to near the Yucatan Peninsula on the southern edge. The model uses nested grid cells of 36 km on the outer portions, 12 km for most of the Region 6 states (most of New Mexico and all of Oklahoma, Arkansas, Louisiana, and Texas) and 4-kilometer grid cells for much of Texas (not including West Texas and the Panhandle) and portions of nearby States. The 4-kilometer grid cells include the DFW Nonattainment Area. For more information on the modeling domain, see the MOAAD TSD. The model simulates the movement of air and emissions into and out of the three-dimensional grid cells (advection and dispersion); mixes pollutants upward and downward among layers; injects new emissions from sources such as point, area, mobile (both on-road and nonroad), and biogenic into each cell; and uses chemical reaction equations to calculate ozone concentrations based on the concentration of ozone precursors and incoming solar radiation within each cell. Air quality planners choose historical time period(s) (episode(s)) of high ozone levels to apply the model. Running the model requires large amounts of data inputs regarding the emissions and meteorological conditions during an episode.

    Modeling to duplicate conditions during an historical time period is referred to as the base case modeling and is used to verify that the model system can predict historical ozone levels with an acceptable degree of accuracy. It requires the development of a base case inventory, which represents the emissions during the time period for the meteorology that is being modeled. These emissions are used for model performance evaluations. Texas modeled much of the 2006 ozone season (May 31-July 2 and August 13-September 15), so the base case emissions and meteorology are for 2006. If the model can adequately replicate the measured ozone levels in the base case and responds adequately to diagnostic tests, it can then be used to project the response of future ozone levels to proposed emission control strategies.

    2. Model Selection

    TCEQ chose to use recent versions of Weather Research and Forecasting Model (WRF) version 3.2 for the meteorological modeling, Emission Processing System (EPS) version 3 for the emission processing, and CAMx version 6.20 for the photochemical grid modeling. WRF is considered a state of the science meteorological model and its use is acceptable in accordance with 40 CFR part 51 Appendix W Section 5. The combination of EPS for emissions processing and CAMx for photochemical modeling constitutes one of the two predominant modeling platforms used for SIP level modeling. These models and versions that TCEQ used are acceptable and in accordance with 40 CFR part 51 Appendix W Section 5.

    3. What episode did Texas choose to model?

    Texas chose to model much of the 2006 ozone season which included a number of historical episodes with monitored exceedances. The 2006 ozone season was a period when multiple exceedance days occurred with a good representation of the variety of meteorological conditions that lead to ozone exceedances in the DFW NAA. Texas chose to model May 31-July 2, 2006 and August 13-September 15, 2006. In addition, Texas conducted the TexAQS II air quality field study in Houston, Dallas, and throughout the eastern half of Texas during 2006 providing additional data that was helpful in modeling and accessing model performance for these periods for the DFW A.D.

    We evaluated Texas' 2006 episode selection for consistency with our modeling guidance (2007, and Draft 2014 versions). Among the items that we considered were the ozone levels during the selected period compared to the design value 6 (DV) at the time; how the meteorological conditions during the proposed episode match with the conceptual model of ozone exceedances that drive the area's DV; were enough days modeled; and was the time period selected robust enough to represent the area's problem for evaluating future control strategies. EPA's guidance indicates that all of these items should be considered when evaluating available episodes and selecting episodes to be modeled. EPA believes that the two 2006 periods (May 31-July 2 and August 13-September 15) are acceptable time periods for use in TCEQ's development of the 8-hour ozone attainment plan. We note that this is an older episode but it is one of the few years with a significant number of exceedances compared to most other years in the 2006-2012 period that were available when Texas started the modeling effort for this SIP in the 2012/2013 timeframe. The only other potential period we had previously identified with Texas was the 2012 ozone season, which TCEQ did investigate but they were not able to get acceptable base case model performance in time for use in this SIP revision in the meteorological and ozone modeling for this 2012 episode in the DFW area at the time this SIP was being developed. The 2006 period also had the unique benefit of additional field data collected as part of TexAQS II. EPA guidance suggests that having the extra field data is advantageous. In light of all this information, EPA concurs with this episode being adequate. See the MOAAD TSD for further discussion and analysis.

    6 The design value is the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration (40 CFR 50, Appendix I).

    4. How well did the model perform?

    Model performance is a term used to describe how well the model predicts the meteorological and ozone levels in an historical episode. EPA has developed various diagnostic, statistical and graphical analyses that TCEQ has performed to evaluate the model's performance to determine if the model is working adequately to test control strategies. TCEQ performed many analyses of both interim model runs and the final base case model run and deemed the model's performance adequate for control strategy development. As described below, we agree that the TCEQ's model performance is adequate.

    From 2012 to 2016, several iterations of the modeling were performed by TCEQ incorporating various improvements to the meteorological modeling, the 2006 base case emissions inventory, and other model parameters. TCEQ shared model performance analyses with EPA and EPA provided input. This data included analysis of meteorological outputs compared to benchmark statistical parameters that TCEQ previously developed as target values that are being used in many areas of the country. TCEQ also shared graphical analyses of the meteorology with EPA. In addition, TCEQ shared extensive analyses of the photochemical modeling for several base case modeling runs with EPA.

    EPA has reviewed the above information and is satisfied that the meteorological modeling was meeting most of the statistical benchmarks, and was transporting air masses in the appropriate locations for most of the days.7 EPA also conducted a review of the model's performance in predicting ozone and ozone precursors and found that performance was within the recommended 1-hour ozone statistics for most days. We evaluate 1-hour time series and metrics as this information has less averaging/smoothing than the 8-hour analyses and results in a higher resolution for evaluating if the modeling is getting the rise and fall of ozone in a similar manner as the monitoring data. We also evaluated the 8-hour statistics, results of diagnostic and sensitivity tests, and multiple graphical analyses and determined that overall the ozone performance was acceptable for Texas to move forward with future year modeling and development of an attainment demonstration.

    7 There are a number of time series and statistical analyses that EPA evaluates in determining if meteorological modeling and ozone modeling is acceptable and EPA compares these analyses in context with other SIPs and modeling conducted for EPA rulemaking to see if the modeling meets most of the benchmarks and is acceptable. EPA's modeling guidance for both meteorological modeling and ozone modeling indicates general goals for model performance statistics based on what EPA has found to be acceptable model performance goals from evaluations of a number of modeling analyses conducted for SIPs and Regulatory development. EPA's guidance also indicates that none of the individual statistics goals is a “pass/fail” decision but that the overall suite of statistics, time series, model diagnostics, and sensitivities should be evaluated together in a holistic approach to determine if the modeling is acceptable. Modeling is rarely perfect, so EPA's basis of acceptability is if the model is working reasonably well most of the time and is doing as well as modeling for other SIPs and EPA rulemaking efforts. For more details on model performance analyses and acceptability see the MOAAD TSD. (EPA 2007 A.D. Guidance, EPA 2014 Draft A.D. Guidance, Emery, C., and E. Tai, (2001), “Enhanced Meteorological Modeling and Performance Evaluation for Two Texas Ozone Episodes “, prepared for the Texas Near Non-Attainment Areas through the Alamo Area Council of Governments”, by ENVIRON International Corp, Novato, CA)

    EPA does not expect any modeling to necessarily be able to meet all the EPA model performance goals, but relies on a holistic approach to determine if the modeling is meeting enough of the goals, the time series are close enough and diagnostic/sensitivity modeling indicates the modeling is performing well enough to be used for assessing changes in emissions for the model attainment test.8 EPA agrees that the overall base case model performance is acceptable, but notes that even with the refinements, the modeling still tends to have some bias performance concerns on the higher ozone days with some of the days being over predicted and some under predicted. The modeling also tended to have a slight overprediction bias for the Kaufman monitor which is usually upwind of the DFW area and more representative of background ozone entering the DFW area. See the MOAAD TSD for further analysis.

    8Id.

    5. Once the base case is determined to be acceptable, how is the modeling used for the attainment demonstration?

    Before using the modeling for attainment test and potential control strategy evaluation, TCEQ reviewed the base case emission inventory, and made minor adjustments to the inventory to account for things that would not be expected to occur again or that were not normal (examples: Inclusion of EGUs that were not operating due to temporary shutdown during the base case period but were expected to be operating in 2017, adjusting the hour specific EGUs CEM based NOX emissions to a typical Ozone season day emission rate). This adjusted emission inventory is called the 2006 baseline emission inventory. The photochemical model was then executed again to obtain a 2006 baseline model projection.

    Since DFW is classified as a moderate NAA, the attainment deadline is as expeditiously as practicable but no later than July 20, 2018. To meet this date, it is necessary for emission reductions to be in place by no later than what is termed the attainment year, which in this case is 2017. Future case modeling using the base case meteorology and estimated 2017 emissions is conducted to estimate future ozone levels factoring in the impact of economic growth in the region and State and Federal emission controls.

    EPA guidance recommends that the attainment test use the modeling analysis in a relative sense instead of an absolute sense. To predict future ozone levels, we estimate a value that we refer to as the Future Design Value (FDV). First, we need to calculate a Base Design Value (BDV) from the available monitoring data. The BDV is calculated for each monitor that was operating in the base period by averaging the three DVs that include the base year (2006). The DVs for 2004-2006, 2005-2007, and 2006-2008 are averaged to result in a center-weighted BDV for each monitor.

    To estimate the FDV, a value is also calculated for each monitor that is called the Relative Response Factor (RRF) using a ratio of baseline and future modeling results around each monitor. This calculation yields the RRF for that monitor. The RRF is then multiplied by the Base Design Value (BDV) for each monitor to yield the FDV for that monitor. The modeled values for each monitor may be calculated to hundredths of a ppb, then truncated to an integer (in ppb) as the final step in the calculation as recommended by EPA's guidance. The truncated values are included in the tables in this action. TCEQ employed EPA's recommended approach for calculating FDV's. For information on how the FDV is calculated refer to the MOAAD TSD.

    The 2014 Draft A.D. Guidance indicates that instead of using all days above the standard (75 ppb) in the baseline, that the subset of 10 highest baseline days at each monitor should be used for calculating an RRF.9 The 10 highest days are the 10 highest 8-hour maximum daily values at each specific monitor. TCEQ provided the 2017 FDV values for each of the monitors using both procedures (2007 A.D Guidance and 2014 Draft A.D. Guidance).

    9 The 10 highest baseline days at a monitor are summed and become the denominator and the future year values for the same 10 days are summed and become the numerator in the RRF calculation.

    EPA has reviewed the components of TCEQ's photochemical modeling demonstration and finds the analysis meets 40 CFR part 51, including 40 CFR part 51 Appendix W—Guideline on Air Quality Models. For a more complete description of the details of the base case modeling inputs, set-up, settings, the meteorology and photochemical model performance analysis (and EPA's evaluation of these procedures and conclusions), see the MOAAD TSD in the Docket for this action (EPA-RO6-OAR-2016-0476).

    6. What did the results of TCEQ's 2017 future year attainment demonstration modeling show?

    The results of modeling the 2017 future baseline modeling run are shown in Table 1. In Table 1, the model FDV calculations using both EPA's 2007 A.D. Guidance method calculation and the more recent 2014 Draft A.D. Guidance calculation method are shown. We have calculated the FDVs in the following tables using the final truncated numbers in accordance with EPA guidance. EPA's more recent 2014 Draft A.D. Guidance to use just the top 10 (highest) 8-hour days from the 2006 baseline modeling instead of all days is a result of previous ozone analyses that EPA reviewed and determined that the older 2007 A.D. Guidance method can include too many days when modeling an area that can have many exceedances and can result in underestimating actual FDVs. Using the top 10 days shifts the focus of the attainment test to the highest and typically hardest days at each monitor. EPA's 2014 Draft A.D. Guidance has not been finalized as the guidance also covers PM2.5 and Regional Haze and EPA has delayed finalization while changes in the Regional Haze Rules and guidance have been under review. We have evaluated both approaches in the DFW modeling and are focusing on the 2014 Draft A.D. modeling results because we find it represents a more appropriate analysis of the attainment test. For example, the 2007 A.D. Guidance method results in 34 modeled days being used in the attainment test for the Denton monitor which includes a number of days where overall ozone was predicted to exceed in the 2006 baseline but was not predicted to exceed in the 2017 modeling analysis. As a result, this older guidance appears to include a number of days that are not predicted to be high ozone or exceedance days in 2017 but are still included in calculating an RRF and a FDV for the monitor. EPA's full analysis for this DFW modeling, of the two FDV calculations, and our results/conclusions for all the monitors is included in the MOAAD TSD. Table 1 includes the modeling projections prior to evaluating any other modeling sensitivity runs.

    Table 1—SIP Modeling Projections for 2017 2006 DFW area monitor and CAMS code 2006 DVB
  • (ppb)
  • 2017 DVF
  • (ppb)
  • 2017 Truncated DVF
  • (ppb)
  • Top 10 2006 baseline days >75
  • (ppb)
  • 2017 DVF
  • (ppb)
  • 2017
  • Truncated DVF
  • (ppb)
  • Denton Airport South—C56 93.33 77.86 77 76.26 76 Eagle Mountain Lake—C75 93.33 77.52 77 76.55 76 Grapevine Fairway—C70 90.67 77.2 77 75.65 75 Keller—C17 91 76.77 76 75.35 75 Fort Worth Northwest—C13 89.33 75.94 75 74.78 74 Frisco—C31 87.67 74.4 74 73.85 73 Dallas North #2—C63 85 73.35 73 72.23 72 Dallas Executive Airport—C402 85 72.21 72 72.05 72 Parker County—C76 87.67 72.17 72 72.4 72 Cleburne Airport—C77 85 71.1 71 69.86 69 Dallas Hinton Street—C401 81.67 70.96 71 69.31 69 Arlington Municipal Airport—C61 83.33 70.57 70 69.86 69 Granbury—C73 83 68.73 68 68.41 68 Midlothian Tower—C94 80.5 67.77 67 67.44 67 Pilot Point—C1032 81 67.4 67 66.6 66 Rockwall Heath—C69 77.67 65.65 65 65.81 65 Midlothian OFW—C52 75 63.17 63 62.57 62 Kaufman—C71 74.67 62.04 62 62.11 62 Greenville—C1006 75 61.78 61 62.09 62

    The second column is the Base DV for the 2006 period. Using the 2007 A.D. guidance 15 of the 19 DFW area monitors are in attainment, one has a FDV of 76 ppb and 3 monitors have a FDV of 77 ppb. Using the 2014 Draft A.D. Guidance all but two of the monitors are attainment. Two are projected to be near attainment with a FDV of 76 ppb. The two monitors over 76 ppb have modeled values of 76.55 and 76.26 at Eagle Mountain Lake and Denton Monitors and are 0.56 and 0.27 ppb from attainment values.10

    10 A model value of 75.99 would be truncated to 75 ppb.

    The standard attainment test is applied only at monitor locations. The 2007 A.D. Guidance and the 2014 Draft A.D. Guidance both recommend that areas within or near nonattainment counties but not adjacent to monitoring locations be evaluated in an unmonitored areas (UMA) analysis to demonstrate that these UMAs are expected to reach attainment by the required future year. The UMA analysis is intended to identify any areas not near a monitoring location that are at risk of not meeting the NAAQS by the attainment date. EPA provided the Modeled Attainment Test Software (MATS) to conduct UMA analyses, but has not specifically recommended in EPA's guidance documents that the only way of performing the UMA analysis is by using the MATS software. EPA has allowed states to develop alternative techniques that may be appropriate for their areas or situations.

    TCEQ used their own UMA analysis (called the TCEQ Attainment Test for Unmonitored areas or TATU). EPA previously reviewed TATU during our review of the modeling protocol for the HGB area (2010 Attainment Demonstration SIP) and we are proposing approval of the use of TATU's tool and its Unmonitored Area analysis as acceptable for meeting the recommended evaluation of ozone levels in the Unmonitored Area analysis for this SIP approval action (See MOAAD TSD for review and evaluation details). The TATU is integrated into the TCEQ's model post-processing stream and MATS requires that modeled concentrations be exported to a personal computer-based platform, thus it would be more time consuming for TCEQ to use MATS for the UMA. Based on past analysis, results between TATU and MATS are similar and EPA's guidance (2007 and Draft 2014) provides states the flexibility to use other tools for the UMA.

    The TATU analysis included in the SIP indicates the maximum in the unmonitored areas is not significantly different than the 2017 FDVs calculated using all days above 75 ppb in the baseline (2007 A.D. Guidance). TCEQ has not adjusted the TATU tool to use the FDVs from the 10-Day FDV calculation procedure in the 2014 Draft A.D. Guidance. TCEQ's TATU analysis indicates the highest values are in the same area as the five monitors that typically record the highest ozone levels in the DFW area, located north and west of Fort Worth: Denton Airport South, Eagle Mountain Lake, Fort Worth Northwest, Grapevine, and Keller. We agree with TCEQ's analysis that there are not areas outside of the monitored areas that are of concern and the highest area in the unmonitored analysis is in the heavily monitored area in the northwest quadrant of the DFW area, consistent with the 5 monitors listed above. Therefore, the 2017 FDVs are properly capturing the geographic locations of the monitored peaks and no significant hotspots were identified that need to be further addressed.

    For a more complete description of the modeling attainment test procedures and conclusions and EPA's evaluation of these procedures and conclusions, see the MOAAD TSD in the Docket for this action.

    7. What are EPA's conclusions of the modeling demonstration?

    EPA has reviewed the modeling and modeling results and finds they meet 40 CFR part 51 requirements. The modeling using the 2014 Draft A.D. Guidance indicates that 17 out of 19 of the monitors are projected to be in attainment in 2017 while two monitors have 2017 FDVs just above the 2008 8-hour Ozone NAAQS (75 ppb). EPA concludes that the modeling results are within the range 11 where EPA recommends Weight of Evidence (WOE) be considered to determine if the attainment demonstration is approvable.

    11 2007 A.D. Guidance indicated within 2-3 ppb for the 1997 8-hour 85 ppb standard and the 2014 Draft A. D. Guidance indicated the model results should be close to the standard without giving an exact range. The two values over with the 2014 Draft A.D. Guidance are just 1 ppb over the standard and EPA considers this be within the range of `close' as indicated by the guidance (2014 Draft A.D. Guidance page 190 “In conclusion, the basic criteria required for an attainment demonstration based on weight of evidence are as follows: (1) A fully-evaluated, high-quality modeling analysis that projects future values that are close to the NAAQS.”

    8. Weight of Evidence (WOE) a. Background

    Both EPA's 2007 A.D. and 2014 Draft A.D. guidance documents recommend that in addition to a modeling demonstration, the states include WOE when the modeling results in FDVs are close to the standard. EPA's 2007 A.D. and 2014 Draft A.D. guidance documents both discuss additional relevant information that may be considered as WOE. The 2007 A.D. Guidance that was developed for the 1997 8-hour ozone standard of 85 ppb standard had a range of 82-87 ppb where a WOE analysis was recommended to support the attainment test. Applying that guidance's general principle to the 2008 8-hour ozone standard of 75 ppb, the DFW FDVs fall within the 2-3 ppb range of that guidance where WOE should also be considered. The 2014 Draft A.D. Guidance does not set a range but indicates that the FDVs should be close to the standard to use WOE, and EPA considers these 2017 FDVs to be very close to the standard (less than 1 ppb in both guidance cases).

    A WOE analysis provides additional scientific analyses as to whether the proposed control strategy, although not modeling attainment, demonstrates attainment by the attainment date. The intent of EPA's guidance is to utilize the WOE analysis to consider potential uncertainty in the modeling system and future year projections. Thus, in the DFW case, even though the modeling predicts two out of 19 monitors have FDVs that are 1 ppb above the NAAQS, additional information (WOE) can provide a basis to conclude attainment is demonstrated. EPA's guidance indicates that several items should be included in a WOE analyses, including the following: Additional modeling, additional reductions not modeled, recent emissions and monitoring trends, known uncertainties in the modeling and/or emission projections, and other pertinent scientific evaluations. Pursuant to EPA's guidance, TCEQ supplemented the control strategy modeling with WOE analyses.

    We briefly discuss the more significant components of the WOE that impacted EPA's evaluation of the attainment demonstration in this action. Many other elements are discussed in the MOAAD TSD. For EPA's complete evaluation of the WOE considered for this action, see the MOAAD TSD.

    b. What additional modeling-based evidence did Texas provide?

    Texas submitted a significant body of information as WOE in the August 5, 2016 submittal. The Texas attainment demonstration modeling discussed above included a model sensitivity run with different Texas EGU emission levels to indicate how slight changes in Texas EGU NOX emission budgets would impact projected 2017 FDVs in the DFW area. Texas increased the SIP modeling TX EGU emissions that are based on Cross State Air Pollution Rule (CSAPR) 12 13 by 2.75% using the older Texas EGU ozone season NOX budget and source allocations from the Clean Air Interstate Rule (CAIR).14 This slight increase in EGU NOX emissions resulted in a small increase of the FDV of 0.08 ppb at the Denton monitor. TCEQ conducted this sensitivity analysis in 2015, prior to EPA finalizing the CSAPR Update Budget for the 2008 ozone standard.15 EPA has evaluated the new CSAPR Update Texas EGU ozone season NOX budget which results in a 20% decrease in emissions compared to the previous CSAPR budget that was included in the attainment modeling. The CSAPR Update required compliance with the new budget starting in May 1, 2017 which is the start of the core period of DFW ozone season. While these reductions were not modeled by TCEQ and occur after the start of the DFW ozone season, based on TCEQ's sensitivity modeling we would expect these EGU NOX reductions to result in lower ozone levels at DFW monitors during the core DFW ozone season of May through September and provide positive WOE.

    12 Cross State Air Pollution Rule (CSAPR) Federal Register, 76 FR 48208 (July 6, 2011) and Federal Register, Federal Register, 76 FR 80760 (December 15, 2011).

    13 See Sections Section 3.5.4; 3.7.4 Future Case Modeling Sensitivities; 3.7.4.1 2017 Clean Air Interstate Rule (CAIR) Phase II Sensitivity; 5.4.1.3 of the State's August 5, 2016 SIP submittal.

    14 Clean Air Interstate Rule (CAIR) Federal Register, 70 FR 25162 (May 21, 2005).

    15 Cross State Air Pollution Rule Update for the 2008 Ozone NAAQS Federal Register, 81 FR 74504 (October 26, 2016).

    TCEQ also used a modeling concept that tracks the ozone generated in the modeling from ozone precursors by location and category of type of emission source that is referred to as using source apportionment.16 For 2017 and 2018, TCEQ performed source apportionment modeling using the Anthropogenic Precursor Culpability Assessment (APCA) tool.17 On the 10 highest days at each monitor, the APCA indicated that DFW sources contribute more on the 10 highest days. For these 10 highest days at the downwind monitors of Denton and Eagle Mountain Lake, the amount of ozone at the monitor due to emissions from local DFW sources was often in the 25-35 ppb range and combination of all Texas sources (DFW and rest of Texas) was often 33-43 ppb. This source apportionment indicates that on the worst days in the DFW area, local emission reductions and reductions within Texas are more beneficial than on other baseline exceedance days. This adds a positive WOE that DFW area reductions in mobile on-road and non-road categories as well as other categories aid in demonstrating attainment. When we say positive WOE, EPA is indicating that the WOE element factors more into supporting the demonstration of attainment. For EPA's complete evaluation of the modeled WOE elements considered for this action, see the MOAAD TSD.

    16 Source apportionment allows the tracking of ozone generation from regions (such as upwind states or the DFW NA, etc.) and also by source category (such as on-road, nonroad, EGU, point sources, etc.).

    17 See 3.7.3 of the State's August 5, 2016 SIP submittal.

    c. Other Non-Modeling WOE

    TCEQ showed that 8-hour and 1-Hour ozone DVs have decreased over the past 18 years, based on monitoring data in the DFW Area (1997 through 2014). TCEQ indicated that the 2015 8-hour ozone DV for the DFW nonattainment area is 83 ppb at Denton Airport South, which is in attainment of the former 8-hour standard (85 ppb) and demonstrates progress toward the current 75 ppb standard.

    TCEQ's trend line for the 1-Hour ozone DV shows a decrease of about 2.1 ppb per year, and the trend line for the 8-hour ozone DV shows a decrease of about 1.1 ppb per year. The 1-Hour ozone DVs decreased about 27% from 1997 through 2014 and the 8-hour ozone DVs decreased about 21% over that same time. This is positive WOE that supports the demonstration of attainment.

    EPA has also supplemented TCEQ's monitoring data analysis with more recent 2014-2016 and preliminary 2017 monitoring data 18 (See Tables 3 and 4). The Denton monitor is located to the north-northwest of the DFW nonattainment area, which is downwind of the urban core and has been the highest DV monitor in DFW and has been setting the DFW NAA DV for the 2014 to 2016 years (and preliminarily in 2017) as the monitor with the highest measured DV. The 2016 DV (2014-2016 data) data indicates that only two monitors had a DV above the standard (Denton—80 ppb and Pilot Point 76 ppb). Current preliminary 2015-2017 DV data indicates that only one of the nineteen monitors in the DFW area may be above the standard with a preliminary 2017 DV of 79 at Denton.19

    18 The 2017 monitoring data is preliminary and still has to undergo Quality Assurance/Quality Control analysis and be certified by the State of Texas, submitted to EPA, and reviewed and concurred on by EPA.

    19 Any determination of whether the DFW ozone nonattainment area has attained by the applicable attainment date is a separate analysis that will be part of a separate EPA rulemaking. This rulemaking is focused on whether the State's submitted attainment demonstration is approvable under CAA standards. EPA is not in a position at this time to determine whether the DFW area has attained by the applicable attainment date, given that that the attainment date has not yet passed and the 2017 monitoring data is still preliminary.

    The monitored DV is calculated by averaging the 4th High values from three consecutive years and truncating to integer (whole number) level in ppb. For example, the 2016 DV is the average of 4th Highs from 2014-2016. The DV calculations can be driven by one high year (2015 in this case) so, for WOE purposes, we can also look at the 4th High 8-hour values for each recent year.

    Overall as seen in Table 3 and 4 below, 2015 stands out with high ozone monitored data compared to other recent years (2014, 2016 and preliminary 2017). These 4th High 8-hour values support that the area with recent emission levels has been close to attaining the standard for several years. The high 2015 4th High 8-hour data is driving all the DVs for 2015, 2016, and preliminary 2017. Despite the high 2015 4th High 8-hour data that contributed to higher 2015, 2016, and preliminary 2017 DV values, examination of the 4th High 8-hour values for 2014, 2016 and preliminary 2017, support the finding that the general long-term trend identified by TCEQ of a steady reduction in DV should continue.

    To assess what might have occurred if 2015 had not been such a high year we have calculated the average of the last two years (2016 and preliminary 2017) 4th Highs, and all monitors have values that are 1 ppb or more below the standard (values are 74.5 ppb or less).20 Both the individual 4th High monitoring data from 2014, 2016, and 2017 and the average of the 2016 and preliminary 2017 data are some of the strongest, positive WOE. The ozone data indicates that emission levels in DFW NAA and the meteorology that occurred in 2014, 2016, and 2017 have led to ozone levels that are consistent with attainment of the NAAQS. Overall, with the exception of the high 2015 data, the recent monitoring data provides a strong positive WOE that supports the demonstration of attainment.

    20 When calculating a DV, the three consecutive years 4th highs are averaged and then truncated. For this discussion consider a hypothetical example of a monitor with 4th High values of 75 ppb, 76 ppb, and 76 ppb that would average to 75.67 and then be truncated to 75 ppb and be in attainment of the 75 ppb NAAQS. Therefore, the non-truncated value of the 2-year avg.74.5 ppb at the Denton monitor is over 1 ppb lower than 75.67 ppb.

    Table 3—DFW Area Monitors DVs [2014-2017] 1 2014
  • (ppb)
  • 2015
  • (ppb)
  • 2016
  • (ppb)
  • 2017 1
  • (ppb)
  • 2016-2017 1
  • (2 year avg.)
  • Denton Co. Airport 81 83 80 79 74.5 Pilot Point 79 79 76 74 71.5 Nuestra (North Dallas) 77 75 72 74 72 Hinton 78 75 71 74 72 Executive 74 68 64 64 62.5 Keller 77 76 73 73 72.5 Meacham 80 80 74 72 69.5 Arlington 75 67 65 67 66 Eagle Mt. Lake 79 76 72 71 68.5 Grapevine 80 78 75 75 74 Frisco 78 76 74 74 72.5 Italy 67 66 62 64 63 Midlothian Downwind 71 68 63 65 63.5 Granbury 76 73 69 67 64.5 Cleburne 76 73 72 73 73.5 Kaufman 70 67 61 61 59.5 Parker Co 74 75 73 70 66.5 Rockwall 73 70 66 66 64 Greenville 69 64 60 62 62 1 2017 DV and 4th High 8-hour values are preliminary data.
    Table 4—DFW Area Monitors 4th High 8-Hour Values [2014-2017] 1 2014
  • (ppb)
  • 2015
  • (ppb)
  • 2016
  • (ppb)
  • 2017 1
  • (ppb)
  • Denton Co. Airport 77 88 76 73 Pilot Point 75 79 75 68 Nuestra (North Dallas) 70 79 67 77 Hinton 66 80 69 75 Executive 63 68 62 63 Keller 74 76 70 75 Meacham 79 79 66 73 Arlington 65 69 61 71 Eagle Mt. Lake 73 78 67 70 Grapevine 73 79 75 73 Frisco 74 77 73 72 Italy 60 66 60 66 Midlothian Downwind 62 68 60 67 Granbury 73 73 63 66 Cleburne 71 73 72 75 Kaufman 62 64 57 62 Parker Co 72 79 68 65 Rockwall 66 71 61 67 Greenville 62 62 58 66 1 2017 4th High 8-hour values are preliminary data.

    TCEQ also submitted WOE components that are further discussed in the MOAAD TSD including the following: Conceptual model and selection of the 2006 period to fit the range of days and synoptic cycles that yield high ozone in DFW, additional ozone design value trends, ozone variability analysis and trends, NOX and VOC monitoring trends, emission trends, NOX and VOC chemistry limitation analysis, and local contribution analyses. Details of these WOE components that also provide positive WOE are included in Chapter 5 of the August 5, 2016 SIP submittal and discussed in the MOAAD TSD.

    d. Other WOE Items From Texas Not Currently Quantified With Modeling: Additional Programs/Reductions, etc.

    CEMENT KILNS—TCEQ also noted that the modeling for the Cement Kilns in Ellis County was based on a NOX cap of 17.64 tons per day when actual NOX emissions have been less than 10 tons per day. The modeling of the kiln emissions in the 2017 future year modeling is high compared to actuals and even new permitted limits and provides positive WOE. EPA's guidance in this case recommends the cap limits be modeled. The fact that the three kilns have not operated at their cap, two of the kilns have shut down and the shut downs are permeant and enforceable, and the third kiln through reconstruction has lower emissions, and the NOX reductions at Ash Grove (NOX permitted reduction of 2.45 tons per day) provide positive WOE.

    DFW AREA EMISSION REDUCTION CREDITS (ERC) AND DISCRETE EMISSION REDUCTION CREDITS (DERC)—TCEQ indicated that they modeled the DFW area ERCs and DERCs in the 2017 future year modeling and this is conservative as it is unlikely that all these credits would be used in one year. EPA agrees it might be conservative, but including the ERCs and DERCs in the future year 2017 modeling is consistent with EPA's guidance.21 EPA guidance calls for emission credits that are being carried in the emissions bank to be included in modeled projections because these emissions will come back in the air when and if the credits are used and without any clear limit on annual usage it cannot be clearly demonstrated that all the ERC/DERCs will not be used in the 2017 future year. It does provide positive WOE.

    21 See sections 12 and 16 of “Improving Air Quality with Economic Incentive Programs” (EPA-452/R-01-001, January 2001).

    TEXAS EMISSION REDUCTION PLAN (TERP)—The TERP program provides financial incentives to eligible individuals, businesses, or local governments to reduce emissions from polluting vehicles and equipment. In 2015, the Texas Legislature increased funding for TERP to $118.1 million per year for FY 2016 and 2017, which was an increase of $40.5 million per year which resulted in more grant projects in eligible TERP areas, including the DFW area. Texas also noted that since the inception of TERP in 2001 through August 2015, over $968 million dollars have been spent within the state through TERP and the Diesel Emission Reduction Incentive Program (DERI) that has resulted in 168,289 tons of NOX reductions in Texas by 2015. TCEQ also noted that over $327 million in DERI grants have been awarded to projects in the DFW area through 2015 resulting with a projected NOX reduction of 58,062 tons that is also estimated as 18.7 tons per day of NOX. These DERI and TERP benefits were not modeled but the reductions and future reductions do provide positive WOE.

    LOW-INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM (LIRAP)—TCEQ established a financial assistance program for qualified owners of vehicles that fail the emissions test. The purpose of this voluntary program is to repair or remove older, higher emitting vehicles from use in certain counties with high ozone. The counties currently participating in the LIRAP include, but are not limited to Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant. In DFW NAA between December 12, 2007 and February 29, 2016, the program repaired 39,379 vehicles at a cost of $20.894 million and retired and replaced 55,807 vehicles at a cost of $167.629 million. Participating DFW area counties were allocated approximately $21.6 million per year for the LIRAP for FYs 2016 and 2017. This is an increase of approximately $18.8 million per year over the previous biennium. These LIRAP benefits were not modeled but the reductions and future reductions do provide positive WOE.

    LOCAL INITIATIVE PROJECTS (LIP)—Funds are provided to counties participating in the LIP for implementation of air quality improvement strategies through local projects and initiatives (Examples: Studies on emissions inspection fraud and targeting high emission vehicles). The 2016 and 2017 state budgets included increases of approximately $2.1 million per year over previous biennium. These LIP benefits were not modeled but the reductions and future reductions do provide positive WOE.

    LOCAL INITIATIVES—The North Central Texas Council of Governments (NCTCOG) submitted an assortment of locally implemented strategies in the DFW nonattainment area including pilot programs, new programs, or programs with pending methodologies. These Local Initiatives benefits were not modeled but the reductions and future reductions do provide positive WOE.

    ENERGY EFFICIENCY/RENEWABLE ENERGY (EE/RE) MEASURES—Additional quantified and unquantified WOE emissions reductions (without NOX reductions calculated) include a number of energy efficiency measures (Residential and Commercial Building Codes, municipality purchase of renewable energies, political subdivision projects, electric utility sponsored programs, Federal facilities EE/RE Projects, etc.). These efforts are not easily quantifiable for an equivalent amount of NOX reductions that may occur, but they do provide positive WOE that growth in electrical demand is reduced and this results in reduced NOX emissions from EGUs.

    VOLUNTARY MEASURES—While the oil and natural gas industry is required to install controls either due to State or Federal requirements, the oil and natural gas industry has in some instances voluntarily implemented additional controls and practices to reduce VOC emissions from oil and natural gas operations in the DFW nonattainment area as well as other areas of the state. Since these are voluntary measures and reporting/verification is not a requirement these efforts are not easily quantifiable from an equivalent amount of NOX and VOC reductions that may occur, but they do provide positive WOE that emissions from oil and gas development which is beneficial to lowering ozone formation from this sector.

    9. Is the 8-hour attainment demonstration approvable?

    Consistent with EPA's regulations at 40 CFR 51.1108(c), Texas submitted a modeled attainment demonstration based on a photochemical grid modeling evaluation. EPA has reviewed the components of TCEQ's photochemical modeling demonstration and finds the analysis is consistent with EPA's guidance and meets 40 CFR part 51, including 40 CFR part 51 Appendix W—Guideline on Air Quality Models. The photochemical modeling was conducted to project 2017 ozone levels in order to demonstrate attainment of the standard by the attainment date. Although the modeled attainment test is not fully met and two of the 19 DFW monitors were projected to be slightly above the standard (less than 1 ppb), consistent with our A.D. guidance, TCEQ submitted a WOE analysis. This WOE analysis provides additional scientific analyses based on identification of emission reductions not captured in the modeling, monitoring trends and recent monitoring data (EPA included more recent monitoring data since the SIP submission) and other modeling analyses. The combination of the modeling and the WOE demonstrate attainment by the attainment date. We are therefore proposing to approve the attainment demonstration submitted August 5, 2016.

    B. Review of Other Plan Requirements 1. Emissions Inventory (EI)

    An emissions inventory is a comprehensive, accurate, and current inventory of actual emissions from all relevant sources of pollutants in the NAA. It is required by sections 172(c)(3) and 182(a)(1) of the CAA that nonattainment plan provisions include an inventory of NOX and VOC emissions from all sources in the nonattainment area. EPA previously approved SIP revisions to the emissions inventory for the DFW moderate nonattainment area for the 2008 ozone NAAQS. See 81 FR 88124 (December 7, 2016).

    2. Nonattainment New Source Review (NNSR)

    The EPA approved the NNSR permitting program for the DFW NAA under the 2008 ozone NAAQS at 82 FR 27122 (June 14, 2017). All NNSR programs have to require (1) the installation of the lowest achievable emission rate, (2) emission offsets, and (3) opportunity for public involvement.

    3. Motor Vehicle Inspection and Maintenance (I/M)

    The EPA approved a State SIP revision for the 2008 8-hour ozone NAAQS requirements for vehicle I/M. See 82 FR 27122 (June 14, 2017).

    4. Reasonable Further Progress (RFP)

    On July 10, 2015, the TCEQ submitted a RFP SIP revision (supplemented on April 22, 2016) to the EPA. For the 2008 ozone NAAQS, the EPA fully approved the DFW moderate nonattainment area RFP SIP revision, the associated contingency measures, and the 2017 RFP Attainment Motor Vehicle Emission Budgets (MVEBs) on December 7, 2016 (81 FR 88124).

    5. Reasonably Available Control Technology (RACT)

    Section 182(b)(2) of the Act requires states to submit a SIP revision and implement RACT for major stationary sources in moderate and above ozone nonattainment areas. Based on the moderate classification of the DFW NAA for the 2008 ozone standard, a major stationary source is one that emits, or has the potential to emit, 100 tpy or more of NOX or VOC. The EPA approved revisions to the State's SIP that revised rules for control of VOC to assist the DFW NAA in attaining the 2008 8-hour ozone NAAQS and that demonstrates that the VOC RACT requirements are met for the DFW NAA. The approval includes Wise County, a county previously added in the 2008 ozone designations, as part of the DFW moderate NAA. We approved the submitted NOX rules (that included Wise County) to assist the DFW NAA in attaining the 2008 8-hour ozone NAAQS and then we approved the NOX RACT demonstration as part of the DFW moderate NAA SIPs but for one affected source.22 Our actions on the RACT for NOX and VOC for the DFW NAA are found at 82 FR 44320 and 82 FR 60546.

    22 As a separate requirement of the Act, the State must demonstrate that the revised VOC and NOX control strategies meet RACT. Again, we previously approved VOC RACT for the DFW NAA under the 2008 ozone NAAQS: NOX RACT was approved for all but one affected source which was conditionally approved September 22, 2017 at 82 FR 44320 and the VOC RACT was approved at 82 FR 60546.

    6. Reasonably Available Control Measures (RACM)

    The RACM requirement applies to all nonattainment areas that are required to submit an attainment demonstration. Section 172(c)(1) of the Act requires SIPs to provide for the implementation of all RACM as expeditiously as practicable and for attainment of the standard. EPA interpreted the RACM requirements of 172(c)(1) in the General Preamble to the Act's 1990 Amendments (April 16, 1992, 57 FR 13498) as imposing a duty on states to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the particular nonattainment area. EPA also issued a memorandum reaffirming its position on this topic, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas,” John S. Seitz, Director, Office of Air Quality Planning and Standards, dated November 30, 1999. In addition, measures available for implementation in the nonattainment area that could not be implemented on a schedule that would advance the attainment date in the area would not be considered by EPA as reasonable to require for implementation. EPA indicated that a State could reject certain measures as not reasonably available for various reasons related to local conditions. A state could include area-specific reasons for rejecting a measure as RACM, such as the measure would not advance the attainment date, or was not technologically or economically feasible. Although EPA encourages areas to implement available RACM measures as potentially cost-effective methods to achieve emissions reductions in the short term, EPA does not believe that section 172(c)(1) requires implementation of potential RACM measures that either require costly implementation efforts or produce relatively small emissions reductions that will not be sufficient to allow the area to achieve attainment in advance of full implementation of all other required measures.

    The TCEQ provided the DFW RACM analysis in Appendix G of the SIP submittal. Texas evaluated control strategies for NOX and VOC emissions, from area, point and mobile (on-road and non-road) sources. The candidate strategies were identified by reviewing existing control strategies, existing sources of NOX and VOC in the DFW NAA, and input from stakeholders (full list of measures is provided in Appendix G of the SIP submittal). As discussed in Chapter 5 of the SIP submittal and in Appendix D (Conceptual Model for the DFW Attainment Demonstration SIP Revision for the 2008 Eight-Hour Ozone Standard), sensitivity analyses and the photochemical modeling indicate that in the DFW NAA ozone is more responsive to NOX reductions than VOC reductions. Many measures to reduce VOCs are already in place, through state and Federal mobile source programs, including recently approved VOC rules in Wise County (82 FR 60546). Based on previous modeling by TCEQ and the EPA, only large reductions of VOC emissions, on the order of 100 tons per day of typical VOCs, would advance the attainment date in DFW. We were unable to identify any additional available evaluated measures that cumulatively would provide 100 tons per day in VOC emissions reductions and thus, advance the attainment date for the DFW area. For more detail, see the Moderate Nonattainment Area TSD (MNA TSD).

    The majority of NOX emissions in the DFW NAA come from mobile sources and industrial processes; emissions of NOX have been reduced to a large extent with controls on stationary sources and improved mobile source programs. In addition, the State extended its NOX RACT rules that were already in place to include Wise County (81 FR 21747). For more detail, see the MNA TSD.

    We also reviewed whether there were additional available strategies to reduce NOX emissions from mobile sources. Our analysis showed that the State SIP already has in place Transportation Control Measures (TCMs), Voluntary Mobile Emissions Program (VMEP), Texas Emissions Reductions Plan (TERP), and a motor vehicle I/M program that EPA has previously approved. Several of the measures in Appendix G are already covered under the TCMs, VMEP, TERP programs and several other local measures are being implemented at the airports and by various cities and others within the DFW NAA.

    In order to advance attainment by a year (i.e., by July 20, 2017), the State would have to implement any additional control measures needed for attainment by the beginning of the 2016 ozone season, i.e., by March 1, 2016.23 While the State was able to revise the SIP with the new attainment date, its review and analysis of additional RACM measures did not result in a finding that any additional measures could be adopted and implemented by March 1, 2016 in order to advance the attainment date. Based on the RACM analysis, the TCEQ determined that no potential control measures met the criteria to be considered RACM. All potential control measures evaluated for stationary sources were determined not to be RACM due to technological or economic feasibility, enforceability, adverse impacts, or ability of the measure to advance attainment of the NAAQS. In general, the State cited to the inability to advance attainment as the primary determining factor in the RACM analyses. Because there are no measures that could have been adopted and implemented by a date that has now passed, we believe the State properly concluded that additional measures are not RACM.

    23 EPA signed a final rule on February 13, 2015 that finalized the revised 2008 ozone attainment dates. (See 80 FR 12264 (March 6, 2015).

    EPA interprets the Act's RACM requirement to mean that a measure is not RACM if it would not advance the attainment date (57 FR 13498, 13560). This interpretation has been upheld. See Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002) and Sierra Club v. United States EPA, 314 F.3d 735 (5th Cir. 2002). A state must consider all potentially available measures to determine whether they are reasonably available for implementation in the area, and whether they would advance the area's attainment date. The state may reject measures as not meeting RACM, however, if they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, or would be economically or technologically infeasible. Additionally, potential measures requiring intensive and costly implementation efforts are not RACM. Sierra Club v. EPA at 162-163 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735 (5th Cir. 2002); BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003). To demonstrate measures that advance attainment of the ozone standard, the emission reductions from the measures must occur no later than the start of the 2016 ozone season—i.e., by March 1, 2016, in order to advance attainment. Because there are no measures that could have been adopted and implemented by a date that has now passed, we believe it is appropriate to conclude that additional measures are not RACM. EPA expects States to prepare a reasoned justification for rejection of any available control measure. The resulting available control measures should then be evaluated for reasonableness considering their technical and economic feasibility, and whether they will advance attainment. In the case of the DFW SIP, TCEQ performed an analysis to determine whether all RACM were included in the SIP. The Fifth Circuit in Sierra Club v. EPA, 314 F.3d 735, 745 (5th Cir. 2002) impressed upon EPA the duty to (1) demonstrate that it has examined relevant data, and (2) provide a satisfactory explanation for its rejection of a proposed RACM and why the proposed RACM, individually and in combination, would not advance the area's attainment date. See Ober, 243 F.3d at 1195 (quoting American Lung Ass'n v. EPA, 134 F.3d 388, 392-93 (D.C. Cir. 1998)). EPA reviewed the State's RACM analysis and believes that the State has included sufficient documentation concerning the rejection of the available measures as RACM for the DFW NAA. Further information is found in the MNA TSD on why we agree with the State that no additional measures are RACM for the DFW area and therefore the RACM requirement of the Act is met.

    We propose that any other available evaluated measures are not reasonably available for the DFW NAA, because they are either economically or technically infeasible, or would not produce emissions reductions sufficient to advance the attainment date in the DFW NAA and therefore, should not be considered RACM.

    7. Attainment Motor Vehicle Emission Budgets (MVEBs)

    The ozone attainment demonstration SIP must include MVEBs for transportation conformity purposes. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. It is a process required by section 176(c) of the Act for ensuring that the effects of emissions from all on-road sources are consistent with attainment of the standard. EPA's transportation conformity rules at 40 CFR 93 require that transportation plans and related projects result in emissions that do not exceed the MVEB established in the SIP. The attainment year established in the DFW ozone attainment demonstration SIP is the calendar year of the final ozone season for determining attainment, which is 2017. See 40 CFR 93.118(b).

    The attainment MVEB is the level of total allowable on-road emissions established by the control strategy implementation plan. Ozone attainment demonstrations must include the estimates of motor vehicle VOC and NOX emissions that are consistent with attainment, which then act as a ceiling for the purposes of determining whether transportation plans, programs, and projects conform to the attainment demonstration SIP. In this case, the attainment MVEBs set the maximum level of on-road emissions that can be produced in 2017, when considered with emissions from all other sources, which demonstrate attainment of the 2008 ozone NAAQS.

    The 2017 attainment MVEBs established by this plan and that the EPA is proposing to incorporate into the DFW SIP are listed in Table 12:

    Table 12—2017 DFW Attainment Motor Vehicle Emissions Budgets (tons per day) Pollutant 2017 NOX 130.77 VOC 64.91

    We found the 2017 attainment MVEBs (also termed transportation conformity budgets) “adequate” and on September 7, 2016, the availability of these budgets was posted on EPA's website for the purpose of soliciting public comments. The comment period closed on October 6, 2016, and we received no comments. On November 8, 2016, we published the Notice of Adequacy Determination for these attainment MVEBs (81 FR 78591). Once determined adequate, these attainment MVEBs must be used in future DFW transportation conformity determinations.

    The attainment budget represents the on-road mobile source emissions that have been modeled for the attainment demonstration. The budget reflects all of the on-road control measures in that demonstration. We believe that the MVEBs are consistent with all applicable SIP requirements and thus are proposing to approve the 2017 attainment MVEBs into the DFW ozone attainment demonstration SIP. All future transportation improvement programs, projects and plans for the DFW NAA will need to show conformity to the budgets in this plan.

    8. Contingency Measures Plan

    The general requirements for ozone nonattainment plans under CAA section 172(c)(9) specify that each nonattainment plan must contain additional measures that will take effect without further action by the State or EPA if an area fails to attain the standard by the applicable date.24 The Act does not specify the type of measures, quantity of emissions reductions required, or how many contingency measures are needed and thus, EPA has interpreted sections 172 and 182 of the Act in the General Preamble (57 FR 13498, 13510) to require states with moderate or above ozone NAAs to include sufficient contingency measures so that, upon implementation of such measures, additional emissions reductions of up to 3 percent of the emissions in the adjusted base year inventory would be achieved in the year following the year in which the failure has been identified. These could include federal measures and local measures already scheduled for implementation, since the CAA does not preclude a state from implementing such measures before they are triggered. EPA based the 3% recommendation in the General Preamble on the fact that moderate and above areas are generally required through the Rate of Progress (ROP)/RFP requirements to achieve an average of 3% reduction per year until they attain the NAAQS. The state must specify the type of contingency measures and the quantity of emissions reductions and show that the measures can be implemented with no further rulemaking and minimal further action by the State. See the MNA TSD for a list of applicable guidance documents.

    24 These provisions do not apply to Marginal NAAs (see section 182(a) of the CAA).

    The State submittal includes a contingency measures plan consisting of the emission reductions from the additional fleet turnover due to the Federal Motor Vehicle Control Program and Federal non-road mobile new vehicle certification standards. These measures provide NOX emission reductions that are in excess of 3 percent of the NOX emissions in the adjusted base year inventory.25 See our MNA TSD for more detail. The fleet turnover measure is a Federal rule and as such is enforceable by the EPA, the State and the public. This proposed approval action would make the specified measures' projected SIP credits enforceable by the EPA and the public.

    25 The CAA does not preclude a state from implementing such measures before they are triggered. In Louisiana Envtl. Action Network v. EPA, 382 F.3d 575 (5th Cir. 2004), the Fifth Circuit held that Clean Air Act § 7502(c)(9) was ambiguous because it “neither affirms nor prohibits continuing emissions reductions—measures which originate prior to the SIP failing, but whose effects continue to manifest an effect after the plan fails—from being utilized as a contingency measure.” The Court agreed with EPA's interpretation that “contingency measures” could include measures that had already been implemented by a state.

    All specified measures are surplus to the reductions in the attainment demonstration. Finally, the measures are considered permanent because they continue for as long as the period in which they are used in the failure-to-attain contingency measures plan. See the MNA TSD for additional detail.

    C. CAA Section 110(l) Analysis

    Section 110(l) of the CAA precludes EPA from approving a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and RFP (as defined in section 171 of the Act), or any other applicable requirement of the CAA. This action proposes approval of a plan that demonstrates that already adopted measures both Federal or State will provide levels of emissions consistent with attaining the ozone NAAQS. Since it is a demonstration, it will not interfere with any other requirement of the Act. Also in this action, we are proposing to approve the attainment MVEBs, which are lower than the previously approved MVEBs for RFP (81 FR 88124), and the contingency measures plan. The lower attainment demonstration MVEBs and on-going emission reductions through the contingency measures plan both provide progress toward attainment and as such do not interfere with any applicable requirement of the Act.

    III. Proposed Action

    We are proposing to approve the August 5, 2016 2008 8-hour ozone modeling and WOE submitted by the State of Texas because it demonstrates attainment by the attainment date. We also are proposing to approve the RACM analysis, the contingency measures plan in the event of failure to attain the NAAQS by the applicable attainment date, and the associated Motor Vehicle Emissions Budgets (MVEBs) for 2017. Finally, we are proposing approval of the use of TATU's tool and its Unmonitored Area analysis as acceptable for meeting the recommended evaluation of ozone levels in the Unmonitored Area analysis for this SIP proposed approval action.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 25, 2018. Anne Idsal, Regional Administrator, Region 6.
    [FR Doc. 2018-09313 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0104; FRL-9977-33-Region 9] Approval of California Air Plan Revisions, Yolo-Solano Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a revision to the Yolo-Solano Air Quality Management District (YSAQMD or “District”) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) from architectural coatings. We are proposing to approve a local rule to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by June 4, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0104 at http://www.regulations.gov, or via email to Arnold Lazarus, at [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Arnold Lazarus, EPA Region IX, (415) 972 3024, [email protected].

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Submittal A. What rule did the State submit? B. Are there other versions of this rule? C. What is the purpose of the submitted rule revision? II. The EPA's Evaluation and Action A. How is the EPA evaluating the rule? B. Does the rule meet the evaluation criteria? C. EPA Recommendations To Further Improve the Rule D. Public Comment and Proposed Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the date that the revision was adopted by the YSAQMD and the date that it was submitted by the California Air Resources Board (CARB) to the EPA.

    Table 1—Submitted Rule Local agency Rule No. Rule title Revised Submitted YSAQMD 2.14 Architectural Coatings 10/12/2016 01/24/2017

    On April 17, 2017, the EPA determined that the submittal for YSAQMD Rule 2.14 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

    B. Are there other versions of this rule?

    On January 2, 2004 (69 FR 34), the EPA finalized a limited approval and limited disapproval of a previous submission of Rule 2.14 with no sanctions because the part of the rule that was disapproved, “Appendix A,” expired by its own terms on January 1, 2005. For additional information, please see the technical support document (TSD) for today's rulemaking.

    C. What is the purpose of the submitted rule revisions?

    VOCs contribute to the production of ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Architectural coatings are coatings that are applied to stationary structures and their accessories. They include house paints, stains, industrial maintenance coatings, traffic coatings, and many other products. VOCs are emitted from the coatings during application and curing, and from the associated solvents used for thinning and clean-up.

    YSAQMD Rule 2.14 controls VOC emissions from architectural coatings by establishing VOC limits on architectural coatings supplied, sold, offered for sale, manufactured, blended, or repackaged for use within the YSAQMD, as well as architectural coatings applied or solicited for application within the District. The revisions to Rule 2.14 include the elimination of the averaging provision, which was the basis for the EPA's 2004 limited disapproval of a prior version of this rule, and the tightening of many of the Rule's VOC limits. The TSD has more information about this rule.

    II. The EPA's Evaluation and Action A. How is the EPA evaluating the rule?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

    Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document, and each major source of VOCs in ozone nonattainment areas classified as moderate or above (see CAA section 182(b)(2)). The YSAQMD regulates an ozone nonattainment area classified as severe nonattainment for the 2008 and the 1997 8-hour ozone National Ambient Air Quality Standards (40 CFR 81.305).

    Because there is no relevant EPA CTG document and because there are no major architectural coating sources within the District, architectural coatings are not subject to RACT requirements. However, architectural coatings are subject to other VOC content limits and control measures described in the TSD.

    Guidance and policy documents that we used to evaluate the enforceability, revision/relaxation, and stringency requirements for this rule include the following:

    1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992 and 57 FR 18070, April 28, 1992).

    2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations” (“the Bluebook,” U.S. EPA, May 25, 1988; revised January 11, 1990).

    3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies” (“the Little Bluebook,” EPA Region 9, August 21, 2001).

    4. National Volatile Organic Compound Emission Standards for Architectural Coatings, 40 CFR 59, Subpart D.

    5. CARB “Suggested Control Measure for Architectural Coatings,” Approved 2007.

    6. YSAQMD Rule 2.14, “Architectural Coatings,” EPA Limited Approval and Limited Disapproval on January 2, 2004 (69 FR 34).

    B. Does the rule meet the evaluation criteria?

    This rule is consistent with CAA requirements and relevant guidance regarding enforceability, stringency, and SIP revisions. The TSD has more information on our evaluation.

    C. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.

    D. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until June 4, 2018. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.

    III. Incorporation by Reference

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

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 18, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.
    [FR Doc. 2018-09213 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2017-0100; FRL-9977-53-Region 5] Air Plan Approval; Michigan; Revisions to Part 9 Miscellaneous Rules AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a request submitted by the Michigan Department of Environmental Quality (MDEQ) on February 2, 2017, and supplemented on November 8, 2017, to revise the Michigan state implementation plan (SIP) for carbon monoxide (CO). The revision incorporates changes to Michigan's Air Pollution Control Rules entitled “Emissions Limitations and Prohibitions—Miscellaneous.” The revision updates existing source-specific rule requirements for ferrous cupola operations by removing obsolete rule language and makes a minor change to correct the citation to a Federal test method. The revision continues to result in attainment of the CO national ambient air quality standard (NAAQS).

    DATES:

    Comments must be received on or before June 4, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0100 at http://www.regulations.gov or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Charles Hatten, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3031, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What are the State rule revisions? II. Did the State hold public hearings for the submittal? III. What is EPA's analysis of the State's submittal? IV. What action is EPA taking? V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. What are the State rule revisions?

    On February 2, 2017, MDEQ submitted a request to incorporate revisions to Michigan's Air Pollution Control Rules in Chapter 336, Part 9—Emissions Limitations and Prohibitions—Miscellaneous (Part 9) in the Michigan SIP. Michigan's submittal included revisions to three separate rules in Part 9: R 336.1902—“Adoption of standards by reference” (rule 902); R 336.1916—“Affirmative defense for excess emissions during start-up or shutdown” (rule 916); and R 336.1930—“Emission of carbon monoxide from ferrous cupola operations” (rule 930). This rule will only take action on rule 930, while the revisions to rule 902 and 916 will be addressed separately.

    Michigan's rule 930 specifies CO emission limits for large ferrous cupola operations with a melting capacity of 20 tons or more per hour. The version of rule 930 currently approved into the Michigan SIP only applies to ferrous cupola operations in Saginaw, Macomb, Oakland, and Wayne Counties in Michigan.1 The rule is designed to require installation of afterburner control system, or equivalent, which reduces the CO emissions from the ferrous cupola by 90 percent.

    1 EPA approved rule 930 on May 6, 1980 (45 FR 29790).

    MDEQ revised rule 930 to clarify rule requirements and applicability. MDEQ removed the compliance date of December 31, 1982, and replaced it with a general compliance requirement because the compliance date has passed. MDEQ also removed language outlining the details of a compliance plan, instead requiring immediate compliance. MDEQ removed the applicability of rule 930 in Saginaw, Macomb and Oakland Counties where ferrous cupola operations no longer exist. Wayne County is the only remaining area subject to rule 930.

    Finally, MDEQ corrected the citation to the Federal test method used to determine CO emission rates for rule compliance. The change to rule 930 clarifies that 40 CFR part 60, appendix A, reference test method 10 must be used to determine CO emission rates for rule compliance, and clarifies that this test method is adopted by reference in rule 902.

    II. Did the State hold public hearings for the submittal?

    A public hearing on the Part 9 (specifically rule 930) rule revisions was held on May 2, 2016, and no comments were received.

    III. What is EPA's analysis of the State's Submittal?

    The removal of the compliance plan requirement from rule 930 and the replacement of the December 21, 1982, compliance date with a general compliance requirement is acceptable because the revised language requires immediate compliance.

    The removal of Saginaw, Macomb, and Oakland Counties from the list of areas subject to rule 930 is also acceptable because there are no ferrous cupola sources located in these counties. As part of MDEQ's reassessment of rule 930 in 2013, MDEQ conducted a search of the Michigan Air Emissions Reporting System and found that there are no ferrous cupola sources in the Saginaw, Macomb, Oakland, or Wayne Counties. Thus, MDEQ chose to revise the areas subject to rule 930 listed in table 91 by removing Saginaw, Macomb, and Oakland Counties.

    Last, the administrative changes to rule 930 that correct the citation to the Federal test method is acceptable because the revised language clarifies that 40 CFR part 60, appendix A, reference test method 10 must be used to determine CO emission rates for rule compliance and its adoption by reference in rule 902. EPA is taking action to approve the revisions to rule 902 in a separate rulemaking.

    Section 110(l) Analysis of the State's Submittal

    EPA is proposing to approve the revisions to rule 930 discussed above because the revisions meet all applicable requirements under the Clean Air Act (CAA), consistent with section 110(k)(3) of the CAA. Furthermore, MDEQ has shown that the revisions to Part 9 do not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirement, consistent with section 110(l) of the CAA.

    Under Section 110(l) of the CAA, EPA shall not approve a SIP revision if it would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171 of the CAA) or any other applicable requirement of the CAA. The proposed SIP revision would not interfere with any applicable CAA requirements based on technical analysis submitted by MDEQ. MDEQ has shown that the impact of revising rule 930 continues to result in attainment of the CO NAAQS. Replacing the obsolete compliance date and compliance plan with a general compliance requirement results in requiring immediate compliance, which is not a relaxation to the SIP. Removing the applicability to areas of the state that no longer contain ferrous cupola sources will have no effect on any emissions and will not interfere with the attainment or maintenance of the CO NAAQS, or any other applicable requirements of the CAA, including the attainment or maintenance of the nitrogen dioxide, lead, particulate matter, or sulfur dioxide NAAQS.

    In addition, any new ferrous cupola operations subject to rule 930 that may be sited in Michigan would have to meet the EPA- approved New Source Review permitting requirements (R 336.1201 to R 336.1209), which would ensure that the CO NAAQS would not be exceeded in Saginaw, Macomb, or Oakland Counties, regardless of their exclusion from rule 930.

    IV. What action is EPA taking?

    EPA is proposing to approve the revision to Michigan's Part 9 Rule submitted by MDEQ on February 2, 2017, and supplemented on November 8, 2017, as a revision to the Michigan SIP. Specifically, we are proposing to approve the revision that updates the applicability of rule 930 to: (1) Remove an obsolete compliance date and requires immediate compliance, (2) remove the areas of the state that no longer contain ferrous cupola sources subject to the rule, and (3) correct the citation to a Federal test method to determine CO emission rates for rule compliance. The revision to this rule will not increase emissions of CO to the atmosphere because no CO emission limits are revised.

    Michigan's Part 9 rule also included revisions to rule 902 and rule 916. EPA is taking action to approve the revisions to rule 902 in a separate rulemaking. EPA will also address the revisions to rule 916 separately.

    V. Incorporation by Reference.

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA proposes to incorporate by reference Michigan Administrative Code R 336.1930 Emission of carbon monoxide from ferrous cupola operations, effective December 20, 2016. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

    VI. Statutory and Executive Order Reviews.

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Volatile organic compounds and Ozone.

    Dated: April 25, 2018. Edward H. Chu, Acting Regional Administrator, Region 5.
    [FR Doc. 2018-09414 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2017-0358; FRL-9977-29-OAR] RIN 2060-AT66 National Emission Standards for Hazardous Air Pollutants for Friction Materials Manufacturing Facilities; Residual Risk and Technology Review AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Friction Materials Manufacturing Facilities source category. The proposed amendments address the results of the residual risk and technology reviews (RTRs) conducted as required under the Clean Air Act (CAA). The proposed amendments also address the startup, shutdown, and malfunction (SSM) provisions of the rule and update the reporting and recordkeeping requirements.

    DATES:

    Comments. Comments must be received on or before June 18, 2018. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before June 4, 2018.

    Public Hearing. If a public hearing is requested by May 8, 2018, then we will hold a public hearing on May 18, 2018 at the location described in the ADDRESSES section. The last day to pre-register in advance to speak at the public hearing will be May 16, 2018.

    ADDRESSES:

    Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2017-0358, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. Regulations.gov is our preferred method of receiving comments. However, other submission methods are accepted. To ship or send mail via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2017-0358, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. Use the following Docket Center address if you are using express mail, commercial delivery, hand delivery, or courier: EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. Delivery verification signatures will be available only during regular business hours.

    Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. See section I.C of this preamble for instructions on submitting CBI.

    For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    Public Hearing. If a public hearing is requested, it will be held at EPA's Headquarters, EPA WJC East Building, 1201 Constitution Avenue NW, Washington, DC 20004. If a public hearing is requested, then we will provide details about the public hearing on our website at: https://www.epa.gov/stationary-sources-air-pollution/friction-materials-manufacturing-facilities-national-emission. The EPA does not intend to publish another document in the Federal Register announcing any updates on the request for a public hearing. Please contact Aimee St. Clair at (919) 541-1063 or by email at [email protected] to request a public hearing, to register to speak at the public hearing, or to inquire as to whether a public hearing will be held.

    The EPA will make every effort to accommodate all speakers who arrive and register. If a hearing is held at a U.S. government facility, individuals planning to attend should be prepared to show a current, valid state- or federal-approved picture identification to the security staff in order to gain access to the meeting room. An expired form of identification will not be permitted. Please note that the Real ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. If your driver's license is issued by a noncompliant state, you must present an additional form of identification to enter a federal facility. Acceptable alternative forms of identification include: Federal employee badge, passports, enhanced driver's licenses, and military identification cards. Additional information on the Real ID Act is available at https://www.dhs.gov/real-id-frequently-asked-questions. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this proposed action, contact Korbin Smith, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-2416; fax number: (919) 541-4991; and email address: [email protected]. For specific information regarding the risk modeling methodology, contact James Hirtz, Health and Environmental Impacts Division (C539-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0881; fax number: (919) 541-0840; and email address: [email protected]. For information about the applicability of the NESHAP to a particular entity, contact Sara Ayres, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, EPA WJC South Building (Mail Code 2227A), 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (312) 353-6266; and email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2017-0358. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in Regulations.gov or in hard copy at the EPA Docket Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2017-0358. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. This type of information should be submitted by mail as discussed in section I.C of this preamble. The http://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets.

    Preamble Acronyms and Abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

    AEGL acute exposure guideline level AERMOD air dispersion model used by the HEM-3 model CAA Clean Air Act CalEPA California EPA CBI Confidential Business Information CFR Code of Federal Regulations CIIT Chemical Industry Institute of Toxicology EPA Environmental Protection Agency ERPG Emergency Response Planning Guideline FMM friction materials manufacturing HAP hazardous air pollutant(s) HCl hydrochloric acid HEM-3 Human Exposure Model, Version 1.1.0 HF hydrogen fluoride HI hazard index HQ hazard quotient IRIS Integrated Risk Information System km kilometer MACT maximum achievable control technology mg/m3 milligrams per cubic meter MIR maximum individual risk NAICS North American Industry Classification System NAS National Academy of Sciences NESHAP national emission standards for hazardous air pollutants NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards OMB Office of Management and Budget PB-HAP hazardous air pollutants known to be persistent and bio-accumulative in the environment ppm parts per million REL reference exposure level RFA Regulatory Flexibility Act RfC reference concentration RfD reference dose RTR residual risk and technology review SAB Science Advisory Board SSM startup, shutdown, and malfunction TOSHI target organ-specific hazard index tpy tons per year TTN Technology Transfer Network UF uncertainty factor UMRA Unfunded Mandates Reform Act URE unit risk estimate VCS voluntary consensus standards

    Organization of This Document. The information in this preamble is organized as follows:

    I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. What should I consider as I prepare my comments for the EPA? II. Background A. What is the statutory authority for this action? B. What is this source category and how does the current NESHAP regulate its HAP emissions? C. What data collection activities were conducted to support this action? D. What other relevant background information and data are available? III. Analytical Procedures A. How do we consider risk in our decision-making? B. How do we perform the technology review? C. How did we estimate post-MACT risks posed by the source category? IV. Analytical Results and Proposed Decisions A. What are the results of the risk assessment and analyses? B. What are our proposed decisions regarding risk acceptability, ample margin of safety, and adverse environmental effects? C. What are the results and proposed decisions based on our technology review? D. What other actions are we proposing? E. What compliance dates are we proposing? V. Summary of Cost, Environmental, and Economic Impacts A. What are the affected sources? B. What are the air quality impacts? C. What are the cost impacts? D. What are the economic impacts? E. What are the benefits? VI. Request for Comments VII. Submitting Data Corrections VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. Does this action apply to me?

    Table 1 of this preamble lists the NESHAP and associated regulated industrial source categories that are the subject of this proposal. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to the affected sources. Federal, state, local, and tribal government entities would not be affected by this proposed action. As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (see 57 FR 31576, July 16, 1992), the Friction Materials Manufacturing Facilities source category, which for the remainder of this document will be referred to as Friction Materials Manufacturing or FMM, was initially defined as any facility engaged in the manufacture or remanufacture of friction products, including automobile brake linings and disc pads. Hazardous air pollutants (HAP) are emitted from solvents added during the proportioning and mixing of raw materials and the solvents contained in the adhesives used to bond the linings to the brake shoes. Most HAP emissions occur during heated processes such as curing, bonding and debonding processes. The 1992 initial list of identified HAP from friction products facilities were phenol, toluene, methyl chloroform, and methyl ethyl (which is no longer listed as a HAP (see 70 FR 75059, December 19, 2005)). In 2002, the source category definition was amended (see 67 FR 64497, October 18, 2002) to define a FMM facility as a facility that manufactures friction materials using a solvent-based process. Friction materials are used in the manufacture of products used to accelerate or decelerate objects. Products that use friction materials include, but are not limited to, disc brake pucks, disc brake pads, brake linings, brake shoes, brake segments, brake blocks, brake discs, clutch facings, and clutches.

    Table 1—NESHAP and Industrial Source Categories Affected by This Proposed Action Source
  • category
  • NESHAP NAICS code 1
    Industry Friction Materials Manufacturing 33634, 327999, 333613. 1 North American Industry Classification System.
    B. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at http://www.epa.gov/stationary-sources-air-pollution/friction-materials-manufacturing-facilities-national-emission. Following publication in the Federal Register, the EPA will post the Federal Register version of the proposal and key technical documents at this same website. Information on the overall RTR program is available at http://www3.epa.gov/ttn/atw/rrisk/rtrpg.html.

    A redline version of the regulatory language that incorporates the proposed changes in this action is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0358).

    C. What should I consider as I prepare my comments for the EPA?

    Submitting CBI. Do not submit information containing CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2017-0358.

    II. Background A. What is the statutory authority for this action?

    The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401 et seq.). Section 112 of the CAA establishes a two-stage regulatory process to develop standards for emissions of HAP from stationary sources. Generally, the first stage involves establishing technology-based standards and the second stage involves evaluating these standards that are based on maximum achievable control technology (MACT) to determine whether additional standards are needed to further address any remaining risk associated with HAP emissions. This second stage is commonly referred to as the “residual risk review.” In addition to the residual risk review, the CAA also requires the EPA to review standards set under CAA section 112 every 8 years to determine if there are “developments in practices, processes, or control technologies” that may be appropriate to incorporate into the standards. This review is commonly referred to as the “technology review.” When the two reviews are combined into a single rulemaking, it is commonly referred to as the “risk and technology review.” The discussion that follows identifies the most relevant statutory sections and briefly explains the contours of the methodology used to implement these statutory requirements. A more comprehensive discussion appears in the document, CAA Section 112 Risk and Technology Reviews: Statutory Authority and Methodology, which is in the docket for this rulemaking.

    In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as beyond-the-floor standards. In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards where it is not feasible to prescribe or enforce a numerical emission standard. For area sources, CAA section 112(d)(5) gives the EPA discretion to set standards based on generally available control technologies or management practices (GACT standards) in lieu of MACT standards.

    The second stage in standard-setting focuses on identifying and addressing any remaining (i.e., “residual”) risk according to CAA section 112(f). Section 112(f)(2) of the CAA requires the EPA to determine for source categories subject to MACT standards whether promulgation of additional standards is needed to provide an ample margin of safety to protect public health or to prevent an adverse environmental effect. Section 112(d)(5) of the CAA provides that this residual risk review is not required for categories of area sources subject to GACT standards. Section 112(f)(2)(B) of the CAA further expressly preserves the EPA's use of the two-step process for developing standards to address any residual risk and the Agency's interpretation of “ample margin of safety” developed in the “National Emissions Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery Plants” (Benzene NESHAP) (54 FR 38044, September 14, 1989). The EPA notified Congress in the Risk Report that the Agency intended to use the Benzene NESHAP approach in making CAA section 112(f) residual risk determinations (EPA-453/R-99-001, p. ES-11). The EPA subsequently adopted this approach in its residual risk determinations and the United States Court of Appeals for the District of Columbia Circuit (the Court) upheld the EPA's interpretation that CAA section 112(f)(2) incorporates the approach established in the Benzene NESHAP. See NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. Cir. 2008).

    The approach incorporated into the CAA and used by the EPA to evaluate residual risk and to develop standards under CAA section 112(f)(2) is a two-step approach. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR) 1 of approximately [1-in-10 thousand] [i.e., 100-in-1 million].” 54 FR 38045, September 14, 1989. If risks are unacceptable, the EPA must determine the emissions standards necessary to bring risks to an acceptable level without considering costs. In the second step of the approach, the EPA considers whether the emissions standards provide an ample margin of safety “in consideration of all health information, including the number of persons at risk levels higher than approximately [1-in-1 million], as well as other relevant factors, including costs and economic impacts, technological feasibility, and other factors relevant to each particular decision.” Id. The EPA must promulgate emission standards necessary to provide an ample margin of safety to protect public health. After conducting the ample margin of safety analysis, we consider whether a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.

    1 Although defined as “maximum individual risk,” MIR refers only to cancer risk. MIR, one metric for assessing cancer risk, is the estimated risk if an individual were exposed to the maximum level of a pollutant for a lifetime.

    CAA section 112(d)(6) separately requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years. In conducting this so-called “technology review,” the EPA is not required to recalculate the MACT floor. Natural Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (DC Cir. 2008). Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (DC Cir. 2013). The EPA may consider cost in deciding whether to revise the standards pursuant to CAA 112(d)(6).

    B. What is this source category and how does the current NESHAP regulate its HAP emissions?

    Only facilities that are major sources of HAP emissions are subject to the FMM NESHAP; area sources of HAP are not subject to the rule. The NESHAP for this source category is codified in 40 CFR part 63, subpart QQQQQ. The HAP emitted by FMM include formaldehyde, methanol, hexane, and phenol. Formaldehyde has the potential to cause chronic cancer and noncancer health effects. The other three HAP are noncarcinogenic and have the potential for chronic and acute noncancer health effects. In 2017, there were two FMM facilities that were subject to the NESHAP.

    The affected sources at FMM facilities are the solvent mixing operations as defined in 40 CFR 63.9565. Solvent Mixing Operations are subject to 40 CFR part 63, subpart QQQQQ, emission limits. Current emission limits address large and small solvent mixers. New, reconstructed, and existing large solvent mixers must limit HAP solvent emissions to the atmosphere to no more than 30 percent of that which would otherwise be emitted in the absence of solvent recovery and/or solvent substitution, based on a 7-day block average (see 40 CFR 63.9500(a)). New, reconstructed, and existing small solvent mixers must limit HAP solvent emissions to the atmosphere to no more than 15 percent of that which would otherwise be emitted in the absence of solvent recovery and/or solvent substitution, based on a 7-day block average (see 40 CFR 63.9500(b)).

    C. What data collection activities were conducted to support this action?

    There are two FMM facilities subject to 40 CFR part 63, subpart QQQQQ. The EPA visited both facilities during the development of the NESHAP. We visited Railroad Friction Products Corporation (RFPC) in Maxton, NC, in August 2016, and Knowlton Technologies, LLC, in Watertown, NY, in November 2016. During the visits, we discussed quantity and size of solvent mixers at each site and associated emission points, process controls, monitors, unregulated emissions, and other aspects of facility operations. We attached a questionnaire to the site visit letter and discussed the questionnaire during both site visits. We used the information provided by the facilities to help create the modeling file, as well as profile the sector. The site visit reports are documented in the following memoranda, which are available in the docket for this action: “Site Visit Report-Railroad Friction Products” and “Site Visit Report-Knowlton Technologies, LLC.”

    D. What other relevant background information and data are available?

    The EPA used information from the Reasonably Available Control Technology (RACT), Best Available Control Technology (BACT), and Lowest Achievable Emission Rate (LAER) Clearinghouse (RBLC) database, reviewed title V permits for each FMM facility, and reviewed regulatory actions related to emissions controls at similar sources that could be applicable to FMM. The EPA reviewed the RBLC to identify potential additional control technologies. No additional control technologies applicable to FMM were found using the RBLC; see sections III.C and IV.C of this preamble and the memorandum, “Technology Review for the Friction Materials Manufacturing Facilities Source Category,” which is available in the docket for this action, for further details on this source of information.

    III. Analytical Procedures

    In this section, we describe the analyses performed to support the proposed decisions for the RTR and other issues addressed in this proposal.

    A. How do we consider risk in our decision-making?

    As discussed in section II.A of this preamble and in the Benzene NESHAP, in evaluating and developing standards under CAA section 112(f)(2), we apply a two-step process to determine whether or not risks are acceptable and to determine if the standards provide an ample margin of safety to protect public health. As explained in the Benzene NESHAP, “the first step judgment on acceptability cannot be reduced to any single factor” and, thus, “[t]he Administrator believes that the acceptability of risk under section 112 is best judged on the basis of a broad set of health risk measures and information.” 54 FR 38046, September 14, 1989. Similarly, with regard to the ample margin of safety determination, “the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including cost and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors.” Id.

    The Benzene NESHAP approach provides flexibility regarding factors the EPA may consider in making determinations and how the EPA may weigh those factors for each source category. The EPA conducts a risk assessment that provides estimates of the MIR posed by the HAP emissions from each source in the source category, the hazard index (HI for chronic exposures to HAP with the potential to cause noncancer health effects, and the hazard quotient (HQ) for acute exposures to HAP with the potential to cause noncancer health effects.2 The assessment also provides estimates of the distribution of cancer risks within the exposed populations, cancer incidence, and an evaluation of the potential for adverse environmental effects. The scope of the EPA's risk analysis is consistent with the EPA's response to comment on our policy under the Benzene NESHAP where the EPA explained that:

    2 The MIR is defined as the cancer risk associated with a lifetime of exposure at the highest concentration of HAP where people are likely to live. The HQ is the ratio of the potential exposure to the HAP to the level at or below which no adverse chronic noncancer effects are expected; the HI is the sum of HQs for HAP that affect the same target organ or organ system.

    [t]he policy chosen by the Administrator permits consideration of multiple measures of health risk. Not only can the MIR figure be considered, but also incidence, the presence of noncancer health effects, and the uncertainties of the risk estimates. In this way, the effect on the most exposed individuals can be reviewed as well as the impact on the general public. These factors can then be weighed in each individual case. This approach complies with the Vinyl Chloride mandate that the Administrator ascertain an acceptable level of risk to the public by employing [her] expertise to assess available data. It also complies with the Congressional intent behind the CAA, which did not exclude the use of any particular measure of public health risk from the EPA's consideration with respect to CAA section 112 regulations, and thereby implicitly permits consideration of any and all measures of health risk which the Administrator, in [her] judgment, believes are appropriate to determining what will `protect the public health'. See 54 FR 38057, September 14, 1989. Thus, the level of the MIR is only one factor to be weighed in determining acceptability of risks. The Benzene NESHAP explained that “an MIR of approximately one in 10 thousand should ordinarily be the upper end of the range of acceptability. As risks increase above this benchmark, they become presumptively less acceptable under CAA section 112, and would be weighed with the other health risk measures and information in making an overall judgment on acceptability. Or, the Agency may find, in a particular case, that a risk that includes MIR less than the presumptively acceptable level is unacceptable in the light of other health risk factors.” Id. at 38045. Similarly, with regard to the ample margin of safety analysis, the EPA stated in the Benzene NESHAP that: “EPA believes the relative weight of the many factors that can be considered in selecting an ample margin of safety can only be determined for each specific source category. This occurs mainly because technological and economic factors (along with the health-related factors) vary from source category to source category.” Id. at 38061. We also consider the uncertainties associated with the various risk analyses, as discussed earlier in this preamble, in our determinations of acceptability, and ample margin of safety.

    The EPA notes that it has not considered certain health information to date in making residual risk determinations. At this time, we do not attempt to quantify those HAP risks that may be associated with emissions from other facilities that do not include the source category under review, mobile source emissions, natural source emissions, persistent environmental pollution, or atmospheric transformation in the vicinity of the sources in the category.

    The EPA understands the potential importance of considering an individual's total exposure to HAP in addition to considering exposure to HAP emissions from the source category and facility. We recognize that such consideration may be particularly important when assessing noncancer risks, where pollutant-specific exposure health reference levels (e.g., reference concentrations (RfCs)) are based on the assumption that thresholds exist for adverse health effects. For example, the EPA recognizes that, although exposures attributable to emissions from a source category or facility alone may not indicate the potential for increased risk of adverse noncancer health effects in a population, the exposures resulting from emissions from the facility in combination with emissions from all of the other sources (e.g., other facilities) to which an individual is exposed may be sufficient to result in increased risk of adverse noncancer health effects. In May 2010, the Science Advisory Board (SAB) advised the EPA “that RTR assessments will be most useful to decision makers and communities if results are presented in the broader context of aggregate and cumulative risks, including background concentrations and contributions from other sources in the area.” 3

    3 The EPA's responses to this and all other key recommendations of the SAB's advisory on RTR risk assessment methodologies (which is available at: http://yosemite.epa.gov/sab/sabproduct.nsf/4AB3966E263D943A8525771F00668381/$File/EPA-SAB-10-007-unsigned.pdf) are outlined in a memorandum to this rulemaking docket from David Guinnup titled EPA's Actions in Response to the Key Recommendations of the SAB Review of RTR Risk Assessment Methodologies.

    In response to the SAB recommendations, the EPA is incorporating cumulative risk analyses into its RTR risk assessments, including those reflected in this proposal. The Agency is (1) conducting facility-wide assessments, which include source category emission points, as well as other emission points within the facilities; (2) combining exposures from multiple sources in the same category that could affect the same individuals; and (3) for some persistent and bioaccumulative pollutants, analyzing the ingestion route of exposure. In addition, the RTR risk assessments have always considered aggregate cancer risk from all carcinogens and aggregate noncancer HI from all non-carcinogens affecting the same target organ system.

    Although we are interested in placing source category and facility-wide HAP risks in the context of total HAP risks from all sources combined in the vicinity of each source, we are concerned about the uncertainties of doing so. Because of the contribution to total HAP risk from emission sources other than those that we have studied in depth during this RTR review, such estimates of total HAP risks would have significantly greater associated uncertainties than the source category or facility-wide estimates. Such aggregate or cumulative assessments would compound those uncertainties, making the assessments too unreliable.

    B. How do we perform the technology review?

    Our technology review focuses on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the MACT standards were promulgated. Where we identify such developments, in order to inform our decision of whether it is “necessary” to revise the emissions standards, we analyze the technical feasibility of applying these developments and the estimated costs, energy implications, and non-air environmental impacts, and we also consider the emission reductions. In addition, we considered the appropriateness of applying controls to new sources versus retrofitting existing sources. For this exercise, we consider any of the following to be a “development”:

    • Any add-on control technology or other equipment that was not identified and considered during development of the original MACT standards;

    • Any improvements in add-on control technology or other equipment (that were identified and considered during development of the original MACT standards) that could result in additional emissions reduction;

    • Any work practice or operational procedure that was not identified or considered during development of the original MACT standards;

    • Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original MACT standards; and

    • Any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT standards).

    In addition to reviewing the practices, processes, and control technologies that were considered at the time we originally developed (or last updated) the NESHAP, we reviewed a variety of data sources in our investigation of potential practices, processes, or controls to consider. Among the sources we reviewed were the NESHAP for various industries that were promulgated since the MACT standards being reviewed in this action. We reviewed the regulatory requirements and/or technical analyses associated with these regulatory actions to identify any practices, processes, and control technologies considered in these efforts that could be applied to emission sources in the FMM source category, as well as the costs, non-air impacts, and energy implications associated with the use of these technologies. Additionally, we requested information from facilities regarding developments in practices, processes, or control technology. Finally, we reviewed information from other sources, such as state and/or local permitting agency databases and industry-supported databases.

    C. How did we estimate post-MACT risks posed by the source category?

    The EPA conducted a risk assessment that provides estimates of the MIR for cancer posed by the HAP emissions from each source in the source category, the HI for chronic exposures to HAP with the potential to cause noncancer health effects, and the HQ for acute exposures to HAP with the potential to cause noncancer health effects. The assessment also provides estimates of the distribution of cancer risks within the exposed populations, cancer incidence, and an evaluation of the potential for adverse environmental effects. The seven sections that follow this paragraph describe how we estimated emissions and conducted the risk assessment. The docket for this action contains the following document which provides more information on the risk assessment inputs and models: Residual Risk Assessment for the Friction Materials Manufacturing Source Category in Support of the February 2018 Risk and Technology Review Proposed Rule. The methods used to assess risks (as described in the seven primary steps below) are consistent with those peer-reviewed by a panel of the EPA's SAB in 2009 and described in their peer review report issued in 2010; 4 they are also consistent with the key recommendations contained in that report.

    4 U.S. EPA SAB. Risk and Technology Review (RTR) Risk Assessment Methodologies: For Review by the EPA's Science Advisory Board with Case Studies—MACT I Petroleum Refining Sources and Portland Cement Manufacturing, May 2010.

    1. How did we estimate actual emissions and identify the emissions release characteristics?

    Solvent mixers are the primary emission source at FMM facilities. Actual emissions for RFPC, which utilizes a solvent recovery system, are estimated using mass balance calculations from the solvent storage tanks. All solvent not recovered is assumed to be emitted.

    Potential HAP emissions at Knowlton Technologies, LLC, are captured by a permanent total enclosure and ducted to a boiler for destruction. The potential HAP emissions at Knowlton come from resins/solvents used in the saturator process line, including the resin kitchen. Annual potential emissions of formaldehyde, methanol, and phenol were calculated by using the annual purchasing total of resins/solvents that contain HAP, multiplied by the maximum percent of HAP contained in the resin/solvent to provide a conservative estimate of potential emissions. The potential emissions are controlled by a permanent total enclosure with a capture efficiency of 100 percent, which routes the potential emissions to a boiler. Data from emissions testing conducted in January 2003 were used to determine the boiler destruction efficiencies for a select group of organic compounds, including formaldehyde, methanol, and phenol. Pollutant-specific boiler control efficiencies were used to calculate post control device emissions to the atmosphere. Additional details on the data and methods used to develop actual emissions estimates for the risk modeling are provided in the memorandum, “Development of the Risk Modeling Dataset,” which is available in the docket for this action.

    2. How did we estimate MACT-allowable emissions?

    The available emissions data in the RTR emissions dataset include estimates of the mass of HAP emitted during a specified annual time period. These “actual” emission levels are often lower than the emission levels allowed under the requirements of the current MACT standards. The emissions level allowed to be emitted by the MACT standards is referred to as the “MACT-allowable” emissions level. We discussed the use of both MACT-allowable and actual emissions in the final Coke Oven Batteries RTR (70 FR 19998-19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP RTRs (71 FR 34428, June 14, 2006, and 71 FR 76609, December 21, 2006, respectively). In those actions, we noted that assessing the risks at the MACT-allowable level is inherently reasonable since these risks reflect the maximum level facilities could emit and still comply with national emission standards. We also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analysis, in accordance with the Benzene NESHAP approach. (54 FR 38044, September 14, 1989.)

    For FMM, we calculated allowable emissions differently for each facility. For RFPC, we determined that allowable emissions are equal to actual emissions because the facility uses both solvent recovery and solvent substitution to comply with the MACT standard. Solvent substitution credits the facility for 100-percent recovery on every batch that doesn't require the use of a HAP solvent. Batch operations using solvent substitution, thus credited for 100-percent recovery, are then averaged with the batches using solvent recovery, to calculate the facility-wide average recovery percentage. That is to say, if the facility ran 10 batches using solvent substitution, credited as 100-percent recovery, and 10 batches using solvent recovery, which achieved 50-percent recovery of the HAP solvent used, the facility would have an average of 75-percent recovery. These calculations show why using the method of calculating allowable emissions by setting them equal to the minimum requirements to comply with the rule (70- percent recovery) does not accurately quantify this source category. The resulting emissions if each facility calculated each batch to emit at 70-percent would result in actual emissions exceeding allowable emissions due to the credited solvent substitution. As a result, we have decided to set actual emissions equal to allowable emissions to better quantify facility emissions. Allowable emissions for Knowlton Technologies, LLC, were calculated by setting the destruction efficiency at 70-percent to comply with the MACT standard instead of the >99-percent currently estimated by the facility. By setting the destruction efficiency to 70-percent, we can estimate the amount of HAP released if the facility were to meet the minimum requirements for compliance with the MACT standard. Additional details on the data and methods used to develop MACT-allowable emissions for the risk modeling are provided in the memorandum, “Development of the Risk Modeling Dataset,” which is available in the docket for this action.

    3. How did we conduct dispersion modeling, determine inhalation exposures, and estimate individual and population inhalation risks?

    Both long-term and short-term inhalation exposure concentrations and health risks from the source category addressed in this proposal were estimated using the Human Exposure Model (HEM-3). The HEM-3 performs three primary risk assessment activities: (1) Conducting dispersion modeling to estimate the concentrations of HAP in ambient air, (2) estimating long-term and short-term inhalation exposures to individuals residing within 50 kilometers (km) of the modeled sources, and (3) estimating individual and population-level inhalation risks using the exposure estimates and quantitative dose-response information.

    a. Dispersion Modeling

    The air dispersion model AERMOD, used by the HEM-3 model, is one of the EPA's preferred models for assessing air pollutant concentrations from industrial facilities.5 To perform the dispersion modeling and to develop the preliminary risk estimates, HEM-3 draws on three data libraries. The first is a library of meteorological data, which is used for dispersion calculations. This library includes 1 year (2016) of hourly surface and upper air observations from 824 meteorological stations, selected to provide coverage of the United States and Puerto Rico. A second library of United States Census Bureau census block 6 internal point locations and populations provides the basis of human exposure calculations (U.S. Census, 2010). In addition, for each census block, the census library includes the elevation and controlling hill height, which are also used in dispersion calculations. A third library of pollutant-specific dose-response values is used to estimate health risks. These dose-response values are the latest values recommended by the EPA for HAP. They are available at https://www.epa.gov/fera/dose-response-assessment-assessing-health-risks-associated-exposure-hazardous-air-pollutants and are discussed in more detail later in this section.

    5 U.S. EPA. Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose (Flat and Complex Terrain) Dispersion Model and Other Revisions (70 FR 68218, November 9, 2005).

    6 A census block is the smallest geographic area for which census statistics are tabulated.

    b. Risk From Chronic Exposure to HAP That May Cause Cancer

    In developing the risk assessment for chronic exposures, we used the estimated annual average ambient air concentrations of each HAP emitted by each source for which we have emissions data in the source category. The air concentrations at each nearby census block centroid were used as a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. We calculated the MIR for each facility as the cancer risk associated with a continuous lifetime (24 hours per day, 7 days per week, 52 weeks per year, for a 70-year period) exposure to the maximum concentration at the centroid of inhabited census blocks. Individual cancer risks were calculated by multiplying the estimated lifetime exposure to the ambient concentration of each HAP (in micrograms per cubic meter) by its unit risk estimate (URE). The URE is an upper bound estimate of an individual's probability of contracting cancer over a lifetime of exposure to a concentration of 1 microgram of the pollutant per cubic meter of air. For residual risk assessments, we generally use UREs from the EPA's Integrated Risk Information System (IRIS). For carcinogenic pollutants without IRIS values, we look to other reputable sources of cancer dose-response values, often using California EPA (CalEPA) UREs, where available. In cases where new, scientifically credible dose-response values have been developed in a manner consistent with the EPA guidelines and have undergone a peer review process similar to that used by the EPA, we may use such dose-response values in place of, or in addition to, other values, if appropriate.

    In 2004, the EPA determined that the Chemical Industry Institute of Toxicology (CIIT) cancer dose-response value for formaldehyde (5.5 × 10−9 milligrams per cubic meter (mg/m3)) was based on better science than the 1991 IRIS dose-response value (1.3 × 10−5 per mg/m3) and, we switched from using the IRIS value to the CIIT value in risk assessments supporting regulatory actions. Based on subsequent published research, however, the EPA changed its determination regarding the CIIT model, and, in 2010, the EPA returned to using the 1991 IRIS value. The National Academy of Sciences (NAS) completed its review of the EPA's draft assessment in April of 2011 (http://www.nap.edu/catalog.php?record id=13142), and the EPA has been working on revising the formaldehyde assessment. The EPA will follow the NAS Report recommendations and will present results obtained by implementing the biologically based dose response (BBDR) model for formaldehyde. The EPA will compare these estimates with those currently presented in the External Review draft of the assessment and will discuss their strengths and weaknesses. As recommended by the NAS committee, appropriate sensitivity and uncertainty analyses will be an integral component of implementing the BBDR model. The draft IRIS assessment will be revised in response to the NAS peer review and public comments and the final assessment will be posted on the IRIS database. In the interim, we will present findings using the 1991 IRIS value as a primary estimate and may also consider other information as the science evolves.

    To estimate incremental individual lifetime cancer risks associated with emissions from the facilities in the source category, the EPA summed the risks for each of the carcinogenic HAP 7 emitted by the modeled sources. Cancer incidence and the distribution of individual cancer risks for the population within 50 km of the sources were also estimated for the source category by summing individual risks. A distance of 50 km is consistent with both the analysis supporting the 1989 Benzene NESHAP (54 FR 38044, September 14, 1989) and the limitations of Gaussian dispersion models, including AERMOD.

    7 The EPA classifies carcinogens as: Carcinogenic to humans, likely to be carcinogenic to humans, and suggestive evidence of carcinogenic potential. These classifications also coincide with the terms “known carcinogen, probable carcinogen, and possible carcinogen,” respectively, which are the terms advocated in the EPA's Guidelines for Carcinogen Risk Assessment, published in 1986 (51 FR 33992, September 24, 1986). In August 2000, the document, Supplemental Guidance for Conducting Health Risk Assessment of Chemical Mixtures (EPA/630/R-00/002), was published as a supplement to the 1986 document. Copies of both documents can be obtained from https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=20533&CFID=70315376&CFTOKEN=71597944. Summing the risks of these individual compounds to obtain the cumulative cancer risks is an approach that was recommended by the EPA's SAB in their 2002 peer review of the EPA's National Air Toxics Assessment (NATA) titled NATA—Evaluating the National-scale Air Toxics Assessment 1996 Data—an SAB Advisory, available at http://yosemite.epa.gov/sab/sabproduct.nsf/214C6E915BB04E14852570CA007A682C/$File/ecadv02001.pdf.

    c. Risk From Chronic Exposure to HAP That May Cause Health Effects Other Than Cancer

    To assess the risk of noncancer health effects from chronic exposure to HAP, we calculate either an HQ or a target organ-specific hazard index (TOSHI). We calculate an HQ when a single noncancer HAP is emitted. Where more than one noncancer HAP is emitted, we sum the HQ for each of the HAP that affects a common target organ system to obtain a TOSHI. The HQ is the estimated exposure divided by the chronic noncancer dose-response value, which is a value selected from one of several sources. The preferred chronic noncancer dose-response value is the EPA RfC (https://iaspub.epa.gov/sor_internet/registry/termreg/searchandretrieve/glossariesandkeywordlists/search.do?details=&vocabName=IRIS%20Glossary), defined as “an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime.” In cases where an RfC from the EPA's IRIS database is not available or where the EPA determines that using a value other than the RfC is appropriate, the chronic noncancer dose-response value can be obtained from the following prioritized sources, which define their dose-response values similarly to the EPA: (1) The Agency for Toxic Substances and Disease Registry (ATSDR) Minimum Risk Level (http://www.atsdr.cdc.gov/mrls/index.asp); (2) the CalEPA Chronic Reference Exposure Level (REL) (http://oehha.ca.gov/air/crnr/notice-adoption-air-toxics-hot-spots-program-guidance-manual-preparation-health-risk-0); or (3), as noted above, a scientifically credible dose-response value that has been developed in a manner consistent with the EPA guidelines and has undergone a peer review process similar to that used by the EPA.

    d. Risk From Acute Exposure to HAP That May Cause Health Effects Other Than Cancer

    For each HAP for which appropriate acute inhalation dose-response values are available, the EPA also assesses the potential health risks due to acute exposure. For these assessments, the EPA makes conservative assumptions about emission rates, meteorology, and exposure location. We use the peak hourly emission rate,8 worst-case dispersion conditions, and, in accordance with our mandate under section 112 of the CAA, the point of highest off-site exposure to assess the potential risk to the maximally exposed individual.

    8 In the absence of hourly emission data, we develop estimates of maximum hourly emission rates by multiplying the average actual annual emissions rates by a default factor (usually 10) to account for variability. This is documented in Residual Risk Assessment for the Friction Materials Manufacturing Facilities Source Category in Support of the March 2018 Risk and Technology Review Proposed Rule and in Appendix 5 of the report: Analysis of Data on Short-term Emission Rates Relative to Long-term Emission Rates. Both are available in the docket for this rulemaking.

    To characterize the potential health risks associated with estimated acute inhalation exposures to a HAP, we generally use multiple acute dose-response values, including acute RELs, acute exposure guideline levels (AEGLs), and emergency response planning guidelines (ERPG) for 1-hour exposure durations), if available, to calculate acute HQs. The acute HQ is calculated by dividing the estimated acute exposure by the acute dose-response value. For each HAP for which acute dose-response values are available, the EPA calculates acute HQs.

    An acute REL is defined as “the concentration level at or below which no adverse health effects are anticipated for a specified exposure duration. ”  9 Acute RELs are based on the most sensitive, relevant, adverse health effect reported in the peer-reviewed medical and toxicological literature. They are designed to protect the most sensitive individuals in the population through the inclusion of margins of safety. Because margins of safety are incorporated to address data gaps and uncertainties, exceeding the REL does not automatically indicate an adverse health impact. AEGLs represent threshold exposure limits for the general public and are applicable to emergency exposures ranging from 10 minutes to 8 hours.10 They are guideline levels for “once-in-a-lifetime, short-term exposures to airborne concentrations of acutely toxic, high-priority chemicals.” Id. at 21. The AEGL-1 is specifically defined as “the airborne concentration (expressed as ppm (parts per million) or mg/m3 (milligrams per cubic meter)) of a substance above which it is predicted that the general population, including susceptible individuals, could experience notable discomfort, irritation, or certain asymptomatic non-sensory effects. However, the effects are not disabling and are transient and reversible upon cessation of exposure.” Airborne concentrations below AEGL-1 represent exposure levels that can produce mild and progressively increasing, but transient and non-disabling odor, taste, and sensory irritation or certain asymptomatic, non-sensory effects.” Id. AEGL-2 are defined as “the airborne concentration (expressed as parts per million or milligrams per cubic meter) of a substance above which it is predicted that the general population, including susceptible individuals, could experience irreversible or other serious, long-lasting adverse health effects or an impaired ability to escape.” Id.

    9 CalEPA issues acute RELs as part of its Air Toxics Hot Spots Program, and the 1-hour and 8-hour values are documented in Air Toxics Hot Spots Program Risk Assessment Guidelines, Part I, The Determination of Acute Reference Exposure Levels for Airborne Toxicants, which is available at http://oehha.ca.gov/air/general-info/oehha-acute-8-hour-and-chronic-reference-exposure-level-rel-summary.

    10 NAS, 2001. Standing Operating Procedures for Developing Acute Exposure Levels for Hazardous Chemicals, page 2. Available at https://www.epa.gov/sites/production/files/2015-09/documents/sop_final_standing_operating_procedures_2001.pdf. Note that the National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances ended in October 2011, but the AEGL program continues to operate at the EPA and works with the National Academies to publish final AEGLs, (https://www.epa.gov/aegl).

    ERPGs are developed for emergency planning and are intended as health-based guideline concentrations for single exposures to chemicals.” 11 Id. at 1. The ERPG-1 is defined as “the maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to 1 hour without experiencing other than mild transient adverse health effects or without perceiving a clearly defined, objectionable odor.” Id. at 2. Similarly, the ERPG-2 is defined as “the maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to one hour without experiencing or developing irreversible or other serious health effects or symptoms which could impair an individual's ability to take protective action.” Id. at 1.

    11ERPGS Procedures and Responsibilities. March 2014. American Industrial Hygiene Association. Available at: https://www.aiha.org/get-involved/AIHAGuidelineFoundation/EmergencyResponsePlanningGuidelines/Documents/ERPG%20Committee%20Standard%20Operating%20Procedures%20%20-%20March%202014%20Revision%20%28Updated%2010-2-2014%29.pdf.

    An acute REL for 1-hour exposure durations is typically lower than its corresponding AEGL-1 and ERPG-1. Even though their definitions are slightly different, AEGL-1s are often the same as the corresponding ERPG-1s, and AEGL-2s are often equal to ERPG-2s. The maximum HQs from our acute inhalation screening risk assessment typically result when we use the acute REL for a HAP. In cases where the maximum acute HQ exceeds 1, we also report the HQ based on the next highest acute dose-response value (usually the AEGL-1 and/or the ERPG-1).

    For this source category, we used the default multiplication factor of 10. While we don't anticipate large variations in hourly emissions, we took a conservative approach to determine if the default multiplication factor would result in high risk. Upon modeling the emissions using the multiplication factor of 10, we determined that risk was still below 1-in-1 million. Due to the low risk results, further research to justify a lower multiplication factor was not necessary.

    In our acute inhalation screening risk assessment, acute impacts are deemed negligible for HAP where acute HQs are less than or equal to 1 (even under the conservative assumptions of the screening assessment), and no further analysis is performed for these HAP. In cases where an acute HQ from the screening step is greater than 1, we consider additional site-specific data to develop a more refined estimate of the potential for acute impacts of concern. For this source category, we did not have to perform any refined acute assessments.

    4. How did we conduct the multipathway exposure and risk screening assessment?

    The EPA conducted a tiered screening assessment examining the potential for significant human health risks due to exposures via routes other than inhalation (i.e., ingestion). We first determined whether any sources in the source category emitted any HAP known to be persistent and bioaccumulative in the environment (PB-HAP), as identified in the EPA's Air Toxics Risk Assessment Library (available at http://www2.epa.gov/fera/risk-assessment-and-modeling-air-toxics-risk-assessment-reference-library).

    For the FMM source category, we did not identify emissions of any PB-HAP. Because we did not identify PB-HAP emissions, no further evaluation of multipathway risk was conducted for this source category.

    5. How did we conduct the environmental risk screening assessment? a. Adverse Environmental Effects, Environmental HAP, and Ecological Benchmarks

    The EPA conducts a screening assessment to examine the potential for adverse environmental effects as required under section 112(f)(2)(A) of the CAA. Section 112(a)(7) of the CAA defines “adverse environmental effect” as “any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”

    The EPA focuses on eight HAP, which are referred to as “environmental HAP,” in its screening assessment: Six PB-HAP and two acid gases. The PB-HAP included in the screening assessment are arsenic compounds, cadmium compounds, dioxins/furans, polcyclic organic matter, mercury (both inorganic mercury and methyl mercury), and lead compounds. The acid gases included in the screening assessment are hydrochloric acid (HCl) and hydrogen fluoride (HF).

    HAP that persist and bioaccumulate are of particular environmental concern because they accumulate in the soil, sediment, and water. The acid gases, HCl and HF, were included due to their well-documented potential to cause direct damage to terrestrial plants. In the environmental risk screening assessment, we evaluate the following four exposure media: Terrestrial soils, surface water bodies (includes water-column and benthic sediments), fish consumed by wildlife, and air. Within these four exposure media, we evaluate nine ecological assessment endpoints, which are defined by the ecological entity and its attributes. For PB-HAP (other than lead), both community-level and population-level endpoints are included. For acid gases, the ecological assessment evaluated is terrestrial plant communities.

    An ecological benchmark represents a concentration of HAP that has been linked to a particular environmental effect level. For each environmental HAP, we identified the available ecological benchmarks for each assessment endpoint. We identified, where possible, ecological benchmarks at the following effect levels: Probable effect levels, lowest-observed-adverse-effect level, and no-observed-adverse-effect level. In cases where multiple effect levels were available for a particular PB-HAP and assessment endpoint, we use all of the available effect levels to help us to determine whether ecological risks exist and, if so, whether the risks could be considered significant and widespread.

    For further information on how the environmental risk screening assessment was conducted, including a discussion of the risk metrics used, how the environmental HAP were identified, and how the ecological benchmarks were selected, see Appendix 9 of the Residual Risk Assessment for the Friction Materials Manufacturing Source Category in Support of the Risk and Technology Review February 2018 Proposed Rule, which is available in the docket for this action.

    b. Environmental Risk Screening Methodology

    For the environmental risk screening assessment, the EPA first determined whether any of the FMM facilities emitted any of the environmental HAP. For the FMM source category, we did not identify emissions of any of the seven environmental HAP included in the screen. Because we did not identify environmental HAP emissions, no further evaluation of environmental risk was conducted.

    6. How did we conduct facility-wide assessments?

    To put the source category risks in context, we typically examine the risks from the entire “facility,” where the facility includes all HAP-emitting operations within a contiguous area and under common control. In other words, we examine the HAP emissions not only from the source category emission points of interest, but also emissions of HAP from all other emission sources at the facility for which we have data.

    For this source category, we conducted the facility-wide assessment using a dataset that the EPA compiled from the 2014 National Emissions Inventory (NEI). We used the NEI data for the facility and did not adjust any category or “non-category” data. Therefore, there could be differences in the dataset from that used for the source category assessments described in this preamble. We analyzed risks due to the inhalation of HAP that are emitted “facility-wide” for the populations residing within 50 km of each facility, consistent with the methods used for the source category analysis described above. For these facility-wide risk analyses, we made a reasonable attempt to identify the source category risks, and these risks were compared to the facility-wide risks to determine the portion of facility-wide risks that could be attributed to the source category addressed in this proposal. We also specifically examined the facility that was associated with the highest estimate of risk and determined the percentage of that risk attributable to the source category of interest. The Residual Risk Assessment for the Friction Materials Manufacturing Source Category in Support of the Risk and Technology Review February 2018 Proposed Rule, available through the docket for this action, provides the methodology and results of the facility-wide analyses, including all facility-wide risks and the percentage of source category contribution to facility-wide risks.

    7. How did we consider uncertainties in risk assessment?

    Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for this proposal. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are protective of health and the environment. A brief discussion of the uncertainties in the RTR emissions dataset, dispersion modeling, inhalation exposure estimates, and dose-response relationships follows below. Also included are those uncertainties specific to our acute screening assessments, multipathway screening assessments, and our environmental risk screening assessments. A more thorough discussion of these uncertainties is included in the Residual Risk Assessment for the FMM Source Category in Support of the Risk and Technology Review February 2018 Proposed Rule, which is available in the docket for this action.

    a. Uncertainties in the RTR Emissions Dataset

    Although the development of the RTR emissions dataset involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data, the degree to which data are incomplete or missing, the degree to which assumptions made to complete the datasets are accurate, errors in emission estimates, and other factors. The emission estimates considered in this analysis generally are annual totals for certain years, and they do not reflect short-term fluctuations during the course of a year or variations from year to year. The estimates of peak hourly emission rates for the acute effects screening assessment were based on an emission adjustment factor applied to the average annual hourly emission rates, which are intended to account for emission fluctuations due to normal facility operations.

    b. Uncertainties in Dispersion Modeling

    We recognize there is uncertainty in ambient concentration estimates associated with any model, including the EPA's recommended regulatory dispersion model, AERMOD. In using a model to estimate ambient pollutant concentrations, the user chooses certain options to apply. For RTR assessments, we select some model options that have the potential to overestimate ambient air concentrations (e.g., not including plume depletion or pollutant transformation). We select other model options that have the potential to underestimate ambient impacts (e.g., not including building downwash). Other options that we select have the potential to either under- or overestimate ambient levels (e.g., meteorology and receptor locations). On balance, considering the directional nature of the uncertainties commonly present in ambient concentrations estimated by dispersion models, the approach we apply in the RTR assessments should yield unbiased estimates of ambient HAP concentrations. We also note that the selection of meteorology dataset location could have an impact on the risk estimates. As we continue to update and expand our library of meteorological station data used in our risk assessments, we expect to reduce this variability.

    c. Uncertainties in Inhalation Exposure Assessment

    Although every effort is made to identify all of the relevant facilities and emission points, as well as to develop accurate estimates of the annual emission rates for all relevant HAP, the uncertainties in our emission inventory likely dominate the uncertainties in the exposure assessment. Some uncertainties in our exposure assessment include human mobility, using the centroid of each census block, assuming lifetime exposure, and assuming only outdoor exposures. For most of these factors, there is neither an under nor overestimate when looking at the maximum individual risks or the incidence, but the shape of the distribution of risks may be affected. With respect to outdoor exposures, actual exposures may not be as high if people spend time indoors, especially for very reactive pollutants or larger particles. For all factors, we reduce uncertainty when possible. For example, with respect to census-block centroids, we analyze large blocks using aerial imagery and adjust locations of the block centroids to better represent the population in the blocks. We also add additional receptor locations where the population of a block is not well represented by a single location.

    d. Uncertainties in Dose-Response Relationships

    There are uncertainties inherent in the development of the dose-response values used in our risk assessments for cancer effects from chronic exposures and noncancer effects from both chronic and acute exposures. Some uncertainties are generally expressed quantitatively, and others are generally expressed in qualitative terms. We note, as a preface to this discussion, a point on dose-response uncertainty that is stated in the EPA's 2005 Cancer Guidelines; namely, that “the primary goal of EPA actions is protection of human health; accordingly, as an Agency policy, risk assessment procedures, including default options that are used in the absence of scientific data to the contrary, should be health protective” (EPA's 2005 Cancer Guidelines, pages 1-7). This is the approach followed here as summarized in the next paragraphs.

    Cancer UREs used in our risk assessments are those that have been developed to generally provide an upper bound estimate of risk. That is, they represent a “plausible upper limit to the true value of a quantity” (although this is usually not a true statistical confidence limit).12 In some circumstances, the true risk could be as low as zero; however, in other circumstances the risk could be greater.13 Chronic noncancer RfC and reference dose (RfD) values represent chronic exposure levels that are intended to be health-protective levels. To derive dose-response values that are intended to be “without appreciable risk,” the methodology relies upon an uncertainty factor (UF) approach (U.S. EPA, 1993 and 1994) which considers uncertainty, variability, and gaps in the available data. The UFs are applied to derive dose-response values that are intended to protect against appreciable risk of deleterious effects.

    12 IRIS glossary (https://ofmpub.epa.gov/sor_internet/registry/termreg/searchandretrieve/glossariesandkeywordlists/search.do?details=&glossaryName=IRIS%20Glossary).

    13 An exception to this is the URE for benzene, which is considered to cover a range of values, each end of which is considered to be equally plausible, and which is based on maximum likelihood estimates.

    Many of the UFs used to account for variability and uncertainty in the development of acute dose-response values are quite similar to those developed for chronic durations. Additional adjustments are often applied to account for uncertainty in extrapolation from observations at one exposure duration (e.g., 4 hours) to derive an acute dose-response value at another exposure duration (e.g., 1 hour). Not all acute dose-response values are developed for the same purpose, and care must be taken when interpreting the results of an acute assessment of human health effects relative to the dose-response value or values being exceeded. Where relevant to the estimated exposures, the lack of acute dose-response values at different levels of severity should be factored into the risk characterization as potential uncertainties.

    Uncertainty also exists in the selection of ecological benchmarks for the environmental risk screening assessment. We established a hierarchy of preferred benchmark sources to allow selection of benchmarks for each environmental HAP at each ecological assessment endpoint. We searched for benchmarks for three effect levels (i.e., no-effects level, threshold-effect level, and probable effect level), but not all combinations of ecological assessment/environmental HAP had benchmarks for all three effect levels. Where multiple effect levels were available for a particular HAP and assessment endpoint, we used all of the available effect levels to help us determine whether risk exists and whether the risk could be considered significant and widespread.

    Although every effort is made to identify appropriate human health effect dose-response values for all pollutants emitted by the sources in this risk assessment, some HAP emitted by this source category are lacking dose-response assessments. Accordingly, these pollutants cannot be included in the quantitative risk assessment, which could result in quantitative estimates understating HAP risk. To help to alleviate this potential underestimate, where we conclude similarity with a HAP for which a dose-response value is available, we use that value as a surrogate for the assessment of the HAP for which no value is available. To the extent use of surrogates indicates appreciable risk, we may identify a need to increase priority for an IRIS assessment for that substance. We additionally note that, generally speaking, HAP of greatest concern due to environmental exposures and hazard are those for which dose-response assessments have been performed, reducing the likelihood of understating risk. Further, HAP not included in the quantitative assessment are assessed qualitatively and considered in the risk characterization that informs the risk management decisions, including consideration of HAP reductions achieved by various control options.

    For a group of compounds that are unspeciated (e.g., glycol ethers), we conservatively use the most protective dose-response value of an individual compound in that group to estimate risk. Similarly, for an individual compound in a group (e.g., ethylene glycol diethyl ether) that does not have a specified dose-response value, we also apply the most protective dose-response value from the other compounds in the group to estimate risk.

    e. Uncertainties in Acute Inhalation Screening Assessments

    In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that the EPA conducts as part of the risk review under section 112 of the CAA. The accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology, and the presence of humans at the location of the maximum concentration. In the acute screening assessment that we conduct under the RTR program, we assume that peak emissions from the source category and worst-case meteorological conditions co-occur, thus, resulting in maximum ambient concentrations. These two events are unlikely to occur at the same time, making these assumptions conservative. We then include the additional assumption that a person is located at this point during this same time period. For this source category, these assumptions would tend to be worst-case actual exposures as it is unlikely that a person would be located at the point of maximum exposure during the time when peak emissions and worst-case meteorological conditions occur simultaneously.

    IV. Analytical Results and Proposed Decisions A. What are the results of the risk assessment and analyses? 1. Inhalation Risk Assessment Results

    The inhalation risk modeling performed to estimate risks based on actual and allowable emissions relied primarily on emissions data gathered through questionnaires provided during two recent site visits conducted by the EPA. The EPA discussed specific FMM processes with authorized representatives of both facilities, including quantity and size of solvent mixers at each site and associated emission points, process controls, monitors, unregulated emissions, and other aspects of facility operations.

    The results of the chronic baseline inhalation cancer risk assessment indicate that, based on estimates of current actual and allowable emissions under 40 CFR part 63, subpart QQQQQ, the MIR posed by the source category is less than 1-in-1 million. The total estimated cancer incidence based on actual emission levels is 0.000005 excess cancer cases per year, or 1 case every 200,000 years. The total estimated cancer incidence based on allowable emission levels is 0.00004 excess cancer cases per year, or 1 case every 25,000 years. Air emissions of formaldehyde contributed 100 percent to this cancer incidence. The population exposed to cancer risks greater than or equal to 1-in-1 million considering actual and allowable emissions is 0 (see Table 2 of this preamble).

    Table 2—Inhalation Risk Assessment Summary for Friction Materials Manufacturing Source Category [40 CFR part 63, subpart QQQQQ] Cancer
  • MIR
  • (in 1 million)
  • Based on
  • actual
  • emissions
  • Based on allowable
  • emissions
  • Cancer
  • incidence
  • (cases per year)
  • Population
  • with risk
  • of 1-in-1
  • million
  • or more
  • Population with risk
  • of 10-in-1
  • million
  • or more
  • Max
  • chronic
  • noncancer
  • HI
  • (actuals and
  • allowables)
  • Source Category < 1 (formaldehyde) < 1 (formaldehyde) 0.000005 0 0 HI < 1 Whole Facility 5 (hexavalent chromium) 0.0005 2,300 0 HI < 1

    The maximum modeled chronic noncancer HI (TOSHI) values for the source category based on actual and allowable emissions are estimated to be 0.01 and 0.02, respectively, with n-hexane emissions from large solvent mixers accounting for 100 percent of the HI.

    1. Acute Risk Results

    Our screening analysis for worst-case acute impacts based on actual emissions indicates no pollutants exceeding an HQ value of 1 based upon the REL. The acute hourly multiplier utilized a default factor of 10 for all emission processes.

    2. Multipathway Risk Screening Results

    We did not identify any PB-HAP emissions from this source category. Therefore, we estimate that there is no multipathway risk from HAP emissions from this source category.

    3. Environmental Risk Screening Results

    We did not identify any PB-HAP or acid gas emissions from this source category. We are unaware of any adverse environmental effect caused by emissions of HAP that are emitted by the FMM source category. Therefore, we do not expect an adverse environmental effect as a result of HAP emissions from this source category.

    4. Facility-Wide Risk Results

    Considering facility-wide emissions at the two plants, the MIR is estimated to be 5-in-1 million driven by hexavalent chromium emissions, and the chronic noncancer TOSHI value is calculated to be <1 driven by emissions of nickel and hexavalent chromium (see Table 2 of this preamble). The above cancer and noncancer risks are driven by emissions from a miscellaneous industrial process that was not able to be classified.

    Approximately 2,300 people are estimated to have cancer risks greater than or equal to 1-in-1 million considering whole facility emissions from the two facilities in the source category (see Table 2 of this preamble).

    6. What demographic groups might benefit from this regulation?

    To examine the potential for any environmental justice issues that might be associated with the source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups of the populations living within 5 km and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risks from the FMM source category across different demographic groups within the populations living near the two facilities.14

    14 Demographic groups included in the analysis are: White, African American, Native American, other races and multiracial, Hispanic or Latino, children 17 years of age and under, adults 18 to 64 years of age, adults 65 years of age and over, adults without a high school diploma, people living below the poverty level, people living two times the poverty level, and linguistically isolated people.

    Results of the demographic analysis indicate that, for 3 of the 11 demographic groups, Native American, ages 0-17, and below the poverty level, the percentage of the population living within 5 km of facilities in the source category is greater than the corresponding national percentage for the same demographic groups. When examining the risk levels of those exposed to emissions from FMM facilities, we find that no one is exposed to a cancer risk at or above 1-in-1 million or to a chronic noncancer TOSHI greater than 1.

    The methodology and the results of the demographic analysis are presented in a technical report, “Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Friction Materials Manufacturing Facilities,” available in the docket for this action.

    B. What are our proposed decisions regarding risk acceptability, ample margin of safety, and adverse environmental effects? 1. Risk Acceptability

    As noted in section II.A of this preamble, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard-setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty, and includes a presumptive limit on MIR of approximately 1-in-10 thousand.” (54 FR 38045, September 14, 1989).

    In this proposal, the EPA estimated risks based on actual and allowable emissions from the FMM source category. As discussed above, we consider our analysis of risk from allowable emissions to be conservative in the sense of possibly over-estimating HAP emissions and their associated risks.

    The inhalation cancer risk to the individual most exposed to emissions from sources in the FMM source category is less than 1-in-1 million, based on actual emissions. The estimated incidence of cancer due to inhalation exposure is 0.000005 excess cancer cases per year, or 1 case in 200,000 years, based on actual emissions. For allowable emissions, we also estimate that the inhalation cancer risk to the individual most exposed to emissions from sources in this source category is less than 1-in-1 million. The estimated incidence of cancer due to inhalation exposure is 0.00004 excess cancer cases per year, or one case in every 25,000 years, based on allowable emissions.

    The Agency estimates that the maximum chronic noncancer TOSHI from inhalation exposure is 0.01 due to actual emissions and 0.02 due to allowable emissions. The screening assessment of worst-case acute inhalation impacts from worst-case 1-hour emissions indicates that no HAP exceed an acute HQ of 1.

    Since no PB-HAP are emitted by this source category, a multipathway risk assessment was not warranted. We did not identify emissions of any of the seven environmental HAP included in our environmental risk screening assessment, and we are unaware of any adverse environmental effects caused by HAP emitted by this source category. Therefore, we do not expect an adverse environmental effect as a result of HAP emissions from this source category.

    In determining whether risk is acceptable, the EPA considered all available health information and risk estimation uncertainty, as described above. The results indicate that both the actual and allowable inhalation cancer risks to the individual most exposed are less than 1-in-1 million, well below the presumptive limit of acceptability of 100-in-1 million. The maximum chronic noncancer TOSHI due to inhalation exposures is less than 1 for actual and allowable emissions. Finally, the evaluation of acute noncancer risks was conservative and showed that acute risks are below a level of concern.

    Taking into account this information, the EPA proposes that the risk remaining after implementation of the existing MACT standards for the FMM source category is acceptable.

    2. Ample Margin of Safety Analysis

    Under the ample margin of safety analysis, we evaluated the cost and feasibility of available control technologies and other measures (including the controls, measures, and costs reviewed under the technology review) that could be applied in this source category to further reduce the risks (or potential risks) due to emissions of HAP, considering all of the health risks and other health information considered in the risk acceptability determination described above. In this analysis, we considered the results of the technology review, risk assessment, and other aspects of our MACT rule review to determine whether there are any cost-effective controls or other measures that would reduce emissions further and would be necessary to provide an ample margin of safety to protect public health.

    Our risk analysis indicated the risks from the FMM source category are low for both cancer and noncancer health effects, and, therefore, any risk reductions from further available control options would result in minimal health benefits. The options identified include a permanent total enclosure and incinerator (PTEI), which is currently used at Knowlton Technologies, LLC, (Knowlton uses a boiler to function as an incinerator for HAP) and a non-solvent process/reformulation, which is used at RFPC. A combination of the two technologies is not considered to be a realistic control option because a PTEI would not add any additional HAP control if a non-solvent process is used. Therefore, we did not analyze such a combined technology option. We also note that non-solvent process/reformulation is not yet demonstrated for all products, and, therefore, cannot be broadly assumed to be feasible to require. The estimated capital cost to install a PTEI at RFPC using a solvent condenser is $1,612,105, and the estimated annual cost to operate the system is $837,745. We estimate that the PTEI option would achieve a HAP reduction of 228 tons, with a cost effectiveness of $3,700 dollars per ton. The resultant risk reduction would be minimal because the estimated risks are already below levels of concern. A detailed cost breakdown can be found in the memorandum, “Calculated Cost of PTEI,” which is located in the docket for this rulemaking.

    Cost estimates for installing and operating a non-solvent process/reformulation are based on costs received from RFPC. The mixer and downstream material processing equipment's estimated total capital investment was $2,073,430. Annual cost of operation is approximately $125,000 for electrical cost and $75,000 for maintenance. For more information, see the memorandum, “Email Correspondence for the Cost of Non-Solvent Mixer RFPC,” which is available in the docket for this rulemaking. We do not have information that this technology could be applied to other production lines with specific product formulations and performance requirements, and, therefore, we determined that this is not a broadly applicable control that is appropriate for consideration under ample margin of safety. We do note, however, that if the technology could be applied to other productions lines, the resultant risk reduction would be minimal because the estimated risks are already below levels of concern for the industry.

    Due to the low level of current risk, the minimal risk reductions that could be achieved with the various control options that we evaluated, and the substantial costs associated with each of the additional control options, as well as the natural progression of industry to move away from HAP containing solvents as acceptable non-HAP formulations are developed, we are proposing that additional emission controls are not necessary to provide an ample margin of safety.

    3. Adverse Environmental Effects

    We did not identify emissions of any of the seven environmental HAP included in our environmental risk screening, and we are unaware of any adverse environmental effects caused by HAP emitted by this source category. Therefore, we do not expect adverse environmental effects as a result of HAP emissions from this source category and we are proposing that it is not necessary to set a more stringent standard to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.

    C. What are the results and proposed decisions based on our technology review?

    In order to fulfill our obligations under CAA section 112(d)(6), we conducted a technology review to identify developments in practices, processes, and control technologies that reduce HAP emissions and to consider whether the current standards should be revised to reflect any such developments. In conducting our technology review, we utilized the RBLC database, reviewed title V permits for each FMM facility, and reviewed regulatory actions related to emissions controls at similar sources that could be applicable to FMM.

    After reviewing information from the sources above, we identified the following developments in control technologies for further evaluation: PTEI, and non-solvent process/reformulation, i.e., the same options we considered for possible ample margin of safety options, discussed above. After identifying options for reducing emissions from FMM, we then evaluated the feasibility, costs, and emissions reductions associated with each of the technologies. Additional information about this determination is documented in the memorandum, “Technology Review for the Friction Materials Manufacturing Source Category,” which is available in the docket for this action.

    We evaluated the cost of installing a PTEI at RFPC (currently operating a solvent recovery system). The total capital investment for installing a PTEI is described in the Ample Margin of Safety Analysis (section IV.B.2) above. Overall, the estimated cost effectiveness of installing and operating a PTEI is approximately $3,700 per ton of hexane reduced. Furthermore, use of an incinerator would result in increased energy usage and nitrogen oxide emissions. Considering the associated cost per ton of hexane reduction and increased nitrogen oxide emissions associated with the operation of an incinerator, we did not find potentially requiring this technology to be cost effective or necessary under CAA section 112(d)(6).

    RFPC is also in the process of removing HAP solvent from its production process. It is accomplishing this through the utilization of a non-solvent process/reformulation. This process change would eventually eliminate the need for HAP solvents and their associated emissions. The ability to use a non-solvent process/reformulation depends primarily on each facility's ability to successfully reformulate products while still meeting the required specifications. Therefore, a change that may be used successfully to reduce HAP emissions at one facility may not work for another facility or for all products at the same facility. We do not consider this process change to be a feasible regulatory alternative or necessary under CAA section 112(d)(6).

    Based on the results of the technology review, we conclude, and propose to find, that changes to the FMM emissions limits pursuant to CAA section 112(d)(6) are not necessary. We solicit comment on our proposed decision.

    D. What other actions are we proposing?

    In addition to the proposed determinations described above, we are proposing some revisions to the rule. We are proposing revisions to the SSM provisions of the MACT rule in order to ensure that they are consistent with the Court's decision in Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008), which vacated two provisions that exempted sources from the requirement to comply with otherwise applicable CAA section 112(d) emission standards during periods of SSM.

    1. Startup, Shutdown, and Malfunction Requirements

    In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the Court vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM. Specifically, the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some CAA section 112 standards apply continuously.

    We are proposing the elimination of the SSM exemption in this rule. Consistent with Sierra Club v. EPA, we are proposing standards in this rule that apply at all times. We are also proposing several revisions to Table 1 to 40 CFR part 63, subpart QQQQQ (the General Provisions Applicability Table), as explained in more detail below. For example, we are proposing to eliminate the incorporation of the General Provisions' requirement that the source develop an SSM plan. We also are proposing to eliminate and revise certain recordkeeping and reporting requirements related to the SSM exemption as further described below.

    The EPA has attempted to ensure that the provisions we are proposing to eliminate are inappropriate, unnecessary, or redundant in the absence of the SSM exemption. We are specifically seeking comment on whether we have successfully done so.

    In proposing to make the current standards in the rule applicable during SSM periods, the EPA has taken into account startup and shutdown periods and, for the reasons explained below, has not proposed alternate standards for those periods. The two FMM facilities subject to this rulemaking run their associated control technologies during all periods of operation, including startup and shutdown, allowing them to comply with the emissions standards at all times. The EPA has no reason to believe that emissions are significantly different during periods of startup and shutdown from those during normal operations.

    Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, processes, or monitoring equipment. (40 CFR 63.2) (definition of malfunction). The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards and this reading has been upheld as reasonable by the Court in U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016). Under CAA section 112, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and for existing sources generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in CAA section 112 that directs the Agency to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the Court has recognized, the phrase “average emissions limitation achieved by the best performing 12 percent of” sources “says nothing about how the performance of the best units is to be calculated.” Nat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1141 (D.C. Cir. 2013). While the EPA accounts for variability in setting emissions standards, nothing in CAA section 112 requires the Agency to consider malfunctions as part of that analysis. The EPA is not required to treat a malfunction in the same manner as the type of variation in performance that occurs during routine operation of a source. A malfunction is a failure of the source to perform in a “normal or usual manner” and no statutory language compels the EPA to consider such events in setting CAA section 112 standards.

    As the Court recognized in U.S. Sugar Corp, accounting for malfunctions in setting numerical or work practice standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in a category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur. Id. at 608 (“the EPA would have to conceive of a standard that could apply equally to the wide range of possible boiler malfunctions, ranging from an explosion to minor mechanical defects. Any possible standard is likely to be hopelessly generic to govern such a wide array of circumstances.”). As such, the performance of units that are malfunctioning is not “reasonably” foreseeable. See, e.g., Sierra Club v. EPA, 167 F.3d 658, 662 (D.C. Cir. 1999) (“The EPA typically has wide latitude in determining the extent of data-gathering necessary to solve a problem. We generally defer to an agency's decision to proceed on the basis of imperfect scientific information, rather than to `invest the resources to conduct the perfect study.' ”). See also, Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (“In the nature of things, no general limit, individual permit, or even any upset provision can anticipate all upset situations. After a certain point, the transgression of regulatory limits caused by `uncontrollable acts of third parties,' such as strikes, sabotage, operator intoxication or insanity, and a variety of other eventualities, must be a matter for the administrative exercise of case-by-case enforcement discretion, not for specification in advance by regulation.”). In addition, emissions during a malfunction event can be significantly higher than emissions at any other time of source operation. For example, if an air pollution control device with 99-percent removal goes off-line as a result of a malfunction (as might happen if, for example, the bags in a baghouse catch fire) and the emission unit is a steady state type unit that would take days to shut down, the source would go from 99-percent control to zero control until the control device was repaired. The source's emissions during the malfunction would be 100 times higher than during normal operations. As such, the emissions over a 4-day malfunction period would exceed the annual emissions of the source during normal operations. As this example illustrates, accounting for malfunctions could lead to standards that are not reflective of (and significantly less stringent than) levels that are achieved by a well-performing non-malfunctioning source. It is reasonable to interpret CAA section 112 to avoid such a result. The EPA's approach to malfunctions is consistent with CAA section 112 and is a reasonable interpretation of the statute.

    Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible. For example, in the Petroleum Refinery Sector Risk and Technology Review, the EPA established a work practice standard for unique types of malfunction that result in releases from pressure relief devices or emergency flaring events because the EPA had information to determine that such work practices reflected the level of control that applies to the best performing sources. 80 FR 75178, 75211-14 (December 1, 2015). The EPA will consider whether circumstances warrant setting work practice standards for a particular type of malfunction and, if so, whether the EPA has sufficient information to identify the relevant best performing sources and establish a standard for such malfunctions. We also encourage commenters to provide any such information.

    In the event that a source fails to comply with the applicable CAA section 112 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112 standard was, in fact, sudden, infrequent, not reasonably preventable, and was not instead caused in part by poor maintenance or careless operation. 40 CFR 63.2 (definition of malfunction).

    If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.

    In summary, the EPA interpretation of the CAA and, in particular, CAA section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations. U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016).

    2. 40 CFR 63.9505 General Compliance Requirements

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.6(e)(1)(i) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. We are proposing instead to add general duty regulatory text at 40 CFR 63.9505 that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations, startup and shutdown, and malfunction events in describing the general duty. Therefore, the language the EPA is proposing at 40 CFR 63.9505(a) and (c) does not include that language from 40 CFR 63.6(e)(1).

    We are also proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.6(e)(1)(ii) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 40 CFR 63.9505.

    3. SSM Plan

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.6(e)(3) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Generally, these paragraphs require development of an SSM plan and specify SSM recordkeeping and reporting requirements related to the SSM plan. As noted, the EPA is proposing to remove the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance, and, thus, the SSM plan requirements are no longer necessary.

    4. Compliance With Standards

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.6(f)(1) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the Court in Sierra Club vacated the exemptions contained in this provision and held that the CAA requires that some CAA section 112 standards apply continuously. Consistent with Sierra Club, the EPA is proposing to revise standards in this rule to apply at all times.

    5. Monitoring

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.8(c)(1)(i) and (iii) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” The cross-references to the general duty and SSM plan requirements in those paragraphs are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)).

    6. 40 CFR 63.9545 What records must I keep?

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(b)(2)(i) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.10(b)(2)(i) describes the recordkeeping requirements during startup and shutdown. These recording provisions are no longer necessary because the EPA is proposing that recordkeeping and reporting applicable to normal operations will apply to startup and shutdown. In the absence of special provisions applicable to startup and shutdown, such as a startup and shutdown plan, there is no reason to retain additional recordkeeping for startup and shutdown periods.

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(b)(2)(ii) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.10(b)(2)(ii) describes the recordkeeping requirements during a malfunction. The EPA is proposing to add such requirements to 40 CFR 63.9545. The regulatory text we are proposing to add differs from the General Provisions it is replacing in that the General Provisions requires the creation and retention of a record of the occurrence and duration of each malfunction of process, air pollution control, and monitoring equipment. The EPA is proposing that this requirement apply to any failure to meet an applicable standard and is requiring that the source record the date, time, and duration of the failure rather than the “occurrence.” The EPA is also proposing to add to 40 CFR 63.9545 a requirement that sources keep records that include a list of the affected source or equipment and actions taken to minimize emissions, an estimate of the quantity of each regulated pollutant emitted over the standard for which the source failed to meet the standard, and a description of the method used to estimate the emissions. Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters. The EPA is proposing to require that sources keep records of this information to ensure that there is adequate information to allow the EPA to determine the severity of any failure to meet a standard, and to provide data that may document how the source met the general duty to minimize emissions when the source has failed to meet an applicable standard.

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(b)(2)(iv) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” When applicable, the provision requires sources to record actions taken during SSM events when actions were inconsistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required. The requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to record actions to minimize emissions and record corrective actions is now applicable by reference to 40 CFR 63.9545(a)(2).

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(b)(2)(v) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” When applicable, the provision requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.

    7. 40 CFR 63.9540 What reports must I submit and when?

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(d)(5) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.10(d)(5) describes the reporting requirements for startups, shutdowns, and malfunctions. To replace the General Provisions reporting requirement, the EPA is proposing to add reporting requirements to 40 CFR 63.9540(b)(4). The replacement language differs from the General Provisions requirement in that it eliminates periodic SSM reports as a stand-alone report. We are proposing language that requires sources that fail to meet an applicable standard at any time to report the information concerning such events in the semi-annual compliance report already required under this rule. We are proposing that the report must contain the number, date, time, duration, and the cause of such events (including unknown cause, if applicable), a list of the affected source(s) or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.

    Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters. The EPA is proposing this requirement to ensure that there is adequate information to determine compliance, to allow the EPA to determine the severity of the failure to meet an applicable standard, and to provide data that may document how the source met the general duty to minimize emissions during a failure to meet an applicable standard.

    We will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because such plans will no longer be required. The proposed amendments, therefore, eliminate the cross reference to 40 CFR 63.10(d)(5)(i) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.

    We are proposing to revise the General Provisions table (Table 1 to 40 CFR part 63, subpart QQQQQ) entry for 40 CFR 63.10(d)(5)(ii) by changing the “yes” in column “Applies to subpart QQQQQ?” to a “no.” Section 63.10(d)(5)(ii) describes an immediate report for startup, shutdown, and malfunctions when a source fails to meet an applicable standard, but does not follow the SSM plan. We will no longer require owners and operators to report when actions taken during a startup, shutdown, or malfunction were not consistent with an SSM plan, because such plans will no longer be required.

    E. What compliance dates are we proposing?

    The EPA is proposing that existing affected sources and affected sources that commenced construction or reconstruction on or before May 3, 2018 must comply with all of the amendments no later than 180 days after the effective date of the final rule. (The final action is not expected to be a “major rule” as defined by 5 U.S.C. 804(2), so the effective date of the final rule will be the promulgation date as specified in CAA section 112(d)(10)). For existing sources, we are proposing a change that would impact ongoing compliance requirements for 40 CFR part 63, subpart QQQQQ. As discussed elsewhere in this preamble, we are proposing to change the requirements for SSM by removing the exemption from the requirements to meet the standard during SSM periods and by removing the requirement to develop and implement an SSM plan. Our experience with similar industries shows that this sort of regulated facility generally requires a time period of 180 days to read and understand the amended rule requirements; to evaluate their operations to ensure that they can meet the standards during periods of startup and shutdown as defined in the rule and make any necessary adjustments; and to update their operations to reflect the revised requirements. From our assessment of the timeframe needed for compliance with the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable, and, thus, is proposing that existing affected sources be in compliance with this regulation's revised requirements within 180 days of the regulation's effective date. We solicit comment on this proposed compliance period, and we specifically request submission of information from sources in this source category regarding specific actions that would need to be undertaken to comply with the proposed amended requirements and the time needed to make the adjustments for compliance with them. We note that information provided may result in changes to the proposed compliance date. Affected sources that commence construction or reconstruction after May 3, 2018 must comply with all requirements of the subpart, including the amendments being proposed, no later than the effective date of the final rule or upon startup, whichever is later. All affected facilities would have to continue to meet the current requirements of subpart QQQQQ until the applicable compliance date of the amended rule.

    V. Summary of Cost, Environmental, and Economic Impacts A. What are the affected sources?

    We anticipate that two FMM facilities currently operating in the United States will be affected by these proposed amendments. The basis of our estimate of affected facilities are provided in the memorandum, “Identification of Major Sources for the NESHAP for Friction Materials Manufacturing,” which is available in the docket for this action. We are not currently aware of any planned or potential new or reconstructed FMM facilities.

    B. What are the air quality impacts?

    We do not anticipate that the proposed amendments to this subpart will impact air quality.

    C. What are the cost impacts?

    The two existing FMM facilities that would be subject to the proposed amendments would incur a net cost savings due to revised recordkeeping and reporting requirements. Nationwide annual net cost savings associated with the proposed requirements are estimated to be $7,358 in 2016 dollars. For further information on the costs and cost savings associated with the requirements being proposed, see the memorandum, “FMM Economic Impacts Memo,” and the document, “Friction Materials Manufacturing 2018 Supporting Statement,” which are both available in the docket for this action. We solicit comment on these estimated cost impacts.

    D. What are the economic impacts?

    As noted earlier, the nationwide annual net cost savings associated with the revised recordkeeping and reporting requirements are estimated to be $7,358 per year. The equivalent annualized value (in 2016 dollars) of these net cost savings over 2019 through 2027 is $6,461 per year when costs are discounted at a 7-percent rate, and $7,381 per year when costs are discounted at a 3-percent rate. This cost savings is not expected to result in changes to business operations, or result in a significant price change of products.

    E. What are the benefits?

    As discussed above, we do not anticipate the proposed amendments to this subpart to impact air quality.

    VI. Request for Comments

    We solicit comments on all aspects of this proposed action. In addition to general comments on this proposed action, we are also interested in additional data that may improve the risk assessments and other analyses. We are specifically interested in receiving any information that improves the quality and quantity of data used in the site-specific emissions profiles used for risk modeling. Such data should include supporting documentation in sufficient detail to allow characterization of the quality and representativeness of the data or information. Section VII of this preamble provides more information on submitting data.

    VII. Submitting Data Corrections

    The site-specific emissions profiles used in the source category risk and demographic analyses and instructions are available for download on the RTR website at http://www3.epa.gov/ttn/atw/rrisk/rtrpg.html. The data files include detailed information for each HAP emissions release point for the facilities in the source category.

    If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern, and provide any available “improved” data. When you submit data, we request that you provide documentation of the basis for any revised values. To submit comments on the data downloaded from the RTR website, complete the following steps:

    1. Within this downloaded file, enter suggested revisions to the data fields appropriate for that information.

    2. Fill in the commenter information fields for each suggested revision (i.e., commenter name, commenter organization, commenter email address, commenter phone number, and revision comments).

    3. Gather documentation for any suggested emissions revisions (e.g., performance test reports, material balance calculations).

    4. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to Docket ID No. EPA-HQ-OAR-2017-0358 (through the method described in the ADDRESSES section of this preamble).

    5. Whether you are providing comments on a single facility or multiple facilities, you need only submit one file. The file should contain all suggested changes for all sources at that facility (or facilities). We request that all data revision comments be submitted in the form of updated Microsoft® Excel files that are generated by the Microsoft® Access file. These files are provided on the RTR website at http://www3.epa.gov/ttn/atw/rrisk/rtrpg.html.

    VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to OMB for review.

    B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA. The ICR document that the EPA prepared has been assigned EPA ICR number 2025.08. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

    We are proposing changes to the recordkeeping and reporting requirements associated with 40 CFR part 63, subpart QQQQQ, in the form of eliminating the SSM plan and reporting requirements, and increasing reporting requirements for the semiannual report of deviation. We also recalculated the estimated recordkeeping burden for records of SSM to more accurately represent the removal of the SSM exemption, which is discussed in more detail in the memorandum, “Email Correspondence estimating the cost of SSM reporting with Knowlton Technologies, LLC.”

    Respondents/affected entities: The respondents to the recordkeeping and reporting requirements are owners or operators of facilities that produce friction products subject to 40 CFR part 63, subpart QQQQQ.

    Respondent's obligation to respond: Mandatory (40 CFR part 63, subpart QQQQQ).

    Estimated number of respondents: Two facilities.

    Frequency of response: Initially and semiannually.

    Total estimated burden: The annual recordkeeping and reporting burden for responding facilities to comply with all of the requirements in the NESHAP, averaged over the 3 years of this ICR, is estimated to be 535 hours (per year). Of these, 115 hours (per year) is the reduced burden to comply with the proposed rule amendments. Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: The annual recordkeeping and reporting cost for responding facilities to comply with all of the requirements in the NESHAP, averaged over the 3 years of this ICR, is estimated to be $35,200 (rounded, per year), including $544 annualized capital or operation and maintenance costs. This results in a decrease of $7,400 (rounded, per year) to comply with the proposed amendments to the rule.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than June 4, 2018. The EPA will respond to any ICR-related comments in the final rule.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. There are no small entities in this regulated industry.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. No tribal facilities are known to be engaged in the friction material manufacturing industry that would be affected by this action. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III.A and IV.A and B of this preamble.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. Therefore, the EPA conducted a search to identify potentially applicable voluntary consensus standards. However, the Agency identified no such standards. Therefore, the EPA has decided to continue the use of the weighing procedures based on EPA Method 28 of 40 CFR part 60, appendix A (section 10.1) for weighing of recovered solvent. A thorough summary of the search conducted and results are included in the memorandum titled “Voluntary Consensus Standard Results for Friction Materials Manufacturing Facilities Residual Risk and Technology Review,” which is available in the docket for this action.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    The documentation for this decision is contained in section IV.A of this preamble and the technical report, “Friction Materials Manufacturing Demographic Analysis,” which is available in the docket for this action.

    List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: April 23, 2018. E. Scott Pruitt, Administrator.

    For the reasons stated in the preamble, the EPA proposes to amend title 40, chapter I, part 63 of the Code of Federal Regulations as follows:

    PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart QQQQQ—National Emission Standards for Hazardous Air Pollutants for Friction Materials Manufacturing Facilities 2. Section 63.9495 is amended by revising paragraphs (a) and (b) and adding paragraph (e) to read as follows:
    § 63.9495 When do I have to comply with this subpart?

    (a) If you have an existing solvent mixer, you must comply with each of the requirements for existing sources no later than October 18, 2005, except as otherwise specified at this section and §§ 63.9505, 63.9530, 63.9540, 63.9545, and Table 1 to this subpart.

    (b) If you have a new or reconstructed solvent mixer for which construction or reconstruction commenced after October 18, 2002, but before May 4, 2018 you must comply with the requirements for new and reconstructed sources upon initial startup, except as otherwise specified at this section and §§ 63.9505, 63.9530, 63.9540, 63.9545, and Table 1 to this subpart.

    (e) Solvent mixers constructed or reconstructed after May 3, 2018 must be in compliance with this subpart at startup or by [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], whichever is later.

    3. Revise § 63.9505 to read as follows:
    § 63.9505 What are my general requirements for complying with this subpart?

    (a) Before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], for each existing source and each new or reconstructed source for which construction or reconstruction commenced after October 18, 2002, but before May 4, 2018 you must be in compliance with the emission limitations in this subpart at all times, except during periods of startup, shutdown, or malfunction. After [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], for each such source you must be in compliance with the emission limitations in this subpart at all times. For new and reconstructed sources for which construction or reconstruction commenced after May 3, 2018, you must be in compliance with the emissions limitations in this subpart at all times.

    (b) Before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], for each existing source, and for each new or reconstructed source for which construction or reconstruction commenced after October 18, 2002, but before May 4, 2018, you must always operate and maintain your affected source, including air pollution control and monitoring equipment, according to the provisions in § 63.6(e)(1)(i). After [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for each such source, and after [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for new and reconstructed sources for which construction or reconstruction commended after May 3, 2018, at all times you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require you to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.

    (c) Before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], for each existing source, and for each new or reconstructed source for which construction commenced after October 18, 2002, but before May 14, 2018, you must develop a written startup, shutdown, and malfunction plan according to the provisions in § 63.6(e)(3). For each such source, a startup, shutdown, and malfunction plan is not required after [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER]. No startup, shutdown, and malfunction plan is required for any new or reconstructed source for which construction or reconstruction commenced after May 3, 2018.

    4. Section 63.9530 is amended by revising paragraphs (a)(1) and (e) to read as follows:
    § 63.9530 How do I demonstrate continuous compliance with the emission limitation that applies to me?

    (a) * * *

    (1) For existing sources and for new or reconstructed sources for which construction or reconstruction commenced after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], except for during malfunctions of your weight measurement device and associated repairs, you must collect and record the information required in § 63.9520(a)(1) through (8) at all times that the affected source is operating and record all information needed to document conformance with these requirements. After [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for such sources, and after [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for new or reconstructed sources that commenced construction after May 3, 2018, you must collect and record the information required in § 63.9520(a)(1) through (8) at all times that the affected source is operating and record all information needed to document conformance with these requirements.

    (e) For existing sources and for new or reconstructed sources which commenced construction or reconstruction after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with § 63.6(e)(1). The Administrator will determine whether deviations that occur during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e). After [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for such sources, and after [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for new or reconstructed sources which commence construction or reconstruction after May 3, 2018, all deviations are considered violations.

    5. Section 63.9540 is amended by revising paragraphs (b)(4), (c)(2), and (d) to read as follows:
    § 63.9540 What reports must I submit and when?

    (b) * * *

    (4) For existing sources and for new or reconstructed sources for which construction or reconstruction commenced after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], if you had a startup, shutdown, or malfunction during the reporting period and you took actions consistent with your startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i). A startup, shutdown, and malfunction plan is not required for such sources after [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER].

    (c) * * *

    (2) For existing sources and for new or reconstructed sources which commenced construction or reconstruction after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken. After [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for such sources, and after [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018, information on the number of deviations to meet an emission limitation. For each instance, include the date, time, duration, and cause of deviations (including unknown cause, if applicable), as applicable, a list of the affected source or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions, and the corrective action taken.

    (d) For existing sources and for new or reconstructed sources which commenced construction or reconstruction after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], if you had a startup, shutdown, or malfunction during the semiannual reporting period that was not consistent with your startup, shutdown, and malfunction plan, you must submit an immediate startup, shutdown, and malfunction report according to the requirements in § 63.10(d)(5)(ii). An immediate startup, shutdown, and malfunction report is not required for such sources after [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER].

    6. Section 63.9545 is amended by revising paragraph (a)(2) and adding paragraph (a)(3) to read as follows:
    § 63.9545 What records must I keep?

    (a) * * *

    (2) For existing sources and for new or reconstructed sources which commenced construction or reconstruction after October 18, 2002, but before May 4, 2018, before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], the records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, or malfunction. For such sources, it is not required to keep records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, or malfunction after [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER].

    (3) After [DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018, and after [DATE 180 DAYS AFTER PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] for all other affected sources, in the event that an affected unit fails to meet an applicable standard, record the number of deviations. For each deviation, record the date, time and duration of each deviation.

    (i) For each deviation, record and retain cause of deviations (including unknown cause, if applicable), a list of the affected source or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.

    (ii) Record actions taken to minimize emissions in accordance with § 63.9505, and any corrective actions taken to return the affected unit to its normal or usual manner of operation.

    7. Table 1 to subpart QQQQQ of part 63 is amended by: a. Removing the entry “§ 63.6(a)-(c), (e)-(f), (i)-(j)”; b. Adding the entries “§ 63.6(a)-(c), (i)-(j)”, “§ 63.6(e)(1)(i)-(ii)”, “§ 63.6(e)(1)(iii), (e)(2)”, “§ 63.6(e)(3)”, “§ 63.6(f)(1)”, and “§ 63.6(f)(2)-(3)” in numerical order; c. Removing the entry “§ 63.8(a)(1)-(2), (b), (c)(1)-(3), (f)(1)-(5)”; d. Adding the entries “§ 63.8(a)(1)-(2)”, “§ 63.8(b)”, “§ 63.8(c)(1)(i), (iii)”, “§ 63.8(c)(1)(ii), (c)(2), (c)(3)”, and “§ 63.8(f)(1)-(5)” in numerical order; e. Removing the entry “§ 63.10(a), (b), (d)(1), (d)(4)-(5), (e)(3), (f)”; and f. Adding the entries “§ 63.10(a), (b)(1), (d)(1), (d)(4), (e)(3), (f)”, “§ 63.10(b)(2)(i), (ii), (iv), (v)”, “§ 63.10(b)(2)(iii), (vi)-(xiv)”, and “§ 63.10(d)(5)” in numerical order.

    The revisions and additions read as follows:

    Table 1 to Subpart QQQQQ of Part 63—Applicability of General Provisions to Subpart QQQQQ *         *         *         *         *         *         * Citation Subject Applies to subpart QQQQQ? Explanation *         *         *         *         *         *         * § 63.6(a)-(c), (i)-(j) Compliance with Standards and Maintenance Requirements Yes *         *         *         *         *         *         * § 63.6(e)(1)(i)-(ii) SSM Operation and Maintenance Requirements No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • Subpart QQQQQ requires affected units to meet emissions standards at all times. See § 63.9505 for general duty requirement.
    § 63.6(e)(1)(iii), (e)(2) Operation and Maintenance Yes § 63.6(e)(3) SSM Plan Requirements No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • Subpart QQQQQ requires affected units to meet emissions standards at all times.
    § 63.6(f)(1) SSM Exemption No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • Subpart QQQQQ requires affected units to meet emissions standards at all times.
    § 63.6(f)(2)-(3) Compliance with Nonopacity Emission Standards Yes *         *         *         *         *         *         * § 63.8(a)(1)-(2) Applicability and Relevant Standards for CMS Yes *         *         *         *         *         *         * § 63.8(b) Conduct of Monitoring Yes § 63.8(c)(1)(i)-(iii) Continuous Monitoring System (CMS) SSM Requirements No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • § 63.8(c)(1)(ii), (c)(2), (c)(3) CMS Repairs, Operating Paramaters, and Performance Tests Yes *         *         *         *         *         *         * § 63.8(f)(1)-(5) Alternative Monitoring Procedure Yes *         *         *         *         *         *         * § 63.10(a), (b)(1), (d)(1), (d)(4), (e)(3), (f) Recordkeeping and Reporting Requirements Yes *         *         *         *         *         *         * § 63.10(b)(2)(i), (ii), (iv), (v) Recordkeeping for Startup, Shutdown and Malfunction No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • See § 63.9545 for recordkeeping requirements.
    § 63.10(b)(2)(iii), (vi)-(xiv) Owner/Operator Recordkeeping Requirements Yes *         *         *         *         *         *         * § 63.10(d)(5) SSM reports No, for new or reconstructed sources which commenced construction or reconstruction after May 3, 2018. Yes, for all other affected sources before [DATE 181 DAYS AFTER PUBLICATION OF FINAL RULE IN THE Federal Register], and
  • No thereafter
  • See § 63.9540 for malfunction reporting requirements.
    *         *         *         *         *         *         *
    [FR Doc. 2018-09200 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    83 86 Thursday, May 3, 2018 Notices DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Solicitation of Applications for the Community Facilities Technical Assistance and Training Grant for Fiscal Year 2018 AGENCY:

    Rural Housing Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This Notice announces that the Rural Housing Service (Agency) is accepting Fiscal Year (FY) 2018 applications for the Community Facilities Technical Assistance and Training (TAT) Grant program. The Agency is publishing the amount of funding received in the appropriations act on its website at https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas. Grant funds not obligated by September 15 of this fiscal year can be used to fund Essential Community Facilities grant or loan guarantee programs.

    DATES:

    To apply for funds, the Agency must receive the application by 5:00 Eastern Daylight Time on July 2, 2018. Electronic applications must be submitted via grants.gov by Midnight Eastern time on July 2, 2018. Prior to official submission of applications, applicants may request technical assistance or other application guidance from the Agency, as long as such requests are made prior to June 22, 2018. Technical assistance is not meant to be an analysis or assessment of the quality of the materials submitted, a substitute for agency review of completed applications, nor a determination of eligibility, if such determination requires in-depth analysis. The Agency will not solicit or consider scoring or eligibility information that is submitted after the application deadline. The Agency reserves the right to contact applicants to seek clarification information on materials contained in the submitted application.

    ADDRESSES:

    Applications will be submitted to the USDA Rural Development State Office in the state where the applicant's headquarters is located. A listing of each State Office can be found at https://www.rd.usda.gov/files/CF_State_Office_Contacts.pdf. If you want to submit an electronic application, follow the instructions for the TAT funding announcement on http://www.grants.gov. For those applicants located in the District of Columbia, applications will be submitted to the National Office in care of Shirley Stevenson, 1400 Independence Ave. SW, STOP 0787, Room 0175-S, Washington, DC 20250. Electronic applications will be submitted via http://www.grants.gov. All applicants can access application materials at http://www.grants.gov.

    FOR FURTHER INFORMATION CONTACT:

    The Rural Development office in which the applicant is located. A list of the Rural Development State Office contacts can be found at https://www.rd.usda.gov/files/CF_State_Office_Contacts.pdf. Applicants located in Washington DC can contact Shirley Stevenson at (202) 205-9685 or via email at [email protected].

    SUPPLEMENTARY INFORMATION:

    The Rural Housing Service (RHS), an agency within the USDA Rural Development mission area herein referred to as the Agency, published a final rule with comment in the Federal Register on January 14, 2016, implementing Section 6006 of the Agriculture Act of 2014 (Pub. L. 113-79) which provides authority to make Community Facilities Technical Assistance and Training (TAT) Grants. The final rule became effective on March 14, 2016, and is found at 7 CFR 3570, subpart F. A correction amendment was published in the Federal Register on May 6, 2016. The purpose of this Notice is to solicit applications for the FY 2018 TAT Grant Program.

    The Agency encourages applications that will support recommendations made in the Rural Prosperity Task Force report to help improve life in rural America (www.usda.gov/ruralprosperity). Applicants are encouraged to consider projects that provide measurable results in helping rural communities build robust and sustainable economies through strategic investments in infrastructure, partnerships, and innovation. Key strategies include:

    • Achieving e-Connectivity for Rural America • Developing the Rural Economy • Harnessing Technological Innovation • Supporting a Rural Workforce • Improving Quality of Life Paperwork Reduction Act

    The paperwork burden has been cleared by the Office of Management and Budget (OMB) under OMB Control Number 0575-0198.

    National Environmental Policy Act

    All recipients under this Notice are subject to the requirements of 7 CFR part 1970. However, awards for technical assistance and training under this Notice are classified as a Categorical Exclusion according to 7 CFR 1970.53(b), and usually do not require any additional documentation. The Agency will review each grant application to determine its compliance with 7 CFR part 1970. The applicant may be asked to provide additional information or documentation to assist the Agency with this determination.

    Overview

    Federal Agency: Rural Housing Service.

    Funding Opportunity Title: Community Facilities Technical Assistance and Training Grant.

    Announcement Type: Notice of Solicitation of Applications (NOSA).

    Catalog of Federal Domestic Assistance Number: 10.766.

    Dates: To apply for funds, the Agency must receive the application by 5:00 p.m. Eastern Daylight Time on July 2, 2018. Electronic applications must be submitted via grants.gov by Midnight Eastern time on July 2, 2018. The Agency will not consider any application received after this deadline. Prior to official submission of applications, applicants may request technical assistance or other application guidance from the Agency, as long as such requests are made prior to June 22, 2018. Technical assistance is not meant to be an analysis or assessment of the quality of the materials submitted, a substitute for agency review of completed applications, nor a determination of eligibility, if such determination requires in-depth analysis. The Agency will not solicit or consider scoring or eligibility information that is submitted after the application deadline. The Agency reserves the right to contact applicants to seek clarification information on materials contained in the submitted application.

    Availability of Notice: This Notice is available through the USDA Rural Development site at: https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas.

    I. Funding Opportunity Description A. Purpose

    Congress authorized the Community Facilities Technical Assistance and Training Grant program in Title VI, Section 6006 of the Agricultural Act of 2014 (Pub. L. 113-79). Program regulations can be found at 7 CFR part 3570, subpart F, which are incorporated by reference in this Notice. The purpose of this Notice is to seek applications from entities that will provide technical assistance and/or training with respect to essential community facilities programs. It is the intent of this program to assist entities in rural areas in accessing funding under the Rural Housing Service's Community Facilities Programs in accordance with 7 CFR part 3570, subpart F. Funding priority will be made to private, nonprofit or public organizations that have experience in providing technical assistance and training to rural entities.

    II. Award Information

    Type of Awards: Grants will be made to eligible entities who will then provide technical assistance and/or training to eligible ultimate recipients.

    Fiscal Year Funds: FY 2018 Technical Assistance Training (TAT) Grant funds.

    Available Funds: The Agency is publishing the amount of funding received in the appropriations act on its website at https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas. Up to ten percent of the available funds may be awarded to the highest scoring Ultimate Recipient(s) as long as they score a minimum score of at least 75.

    Award Amounts: Grants will be made in amounts based upon the availability of grant funds, but no grant award will exceed $150,000. Grant awards made to Ultimate Recipients will not exceed $50,000. The Agency reserves the right to reduce funding amounts based on the Agency's determination of available funding or other Agency funding priorities.

    Award Dates: Awards will be made from available funding on or before September 15, 2018.

    III. Eligibility Information

    Both the applicant and the use of funds must meet eligibility requirements. The applicant eligibility requirements can be found at 7 CFR 3570.262. Eligible project purposes can be found at 7 CFR 3570.263. Ineligible project purposes can be found at 7 CFR 3570.264. Restrictions substantially similar to Sections 743, 744, 745, and 746 outlined in Title VII, “General Provisions—Government-Wide” of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113) will apply unless noted on the Rural Development website (https://www.rd.usda.gov/programs-services/community-facilities-technical-assistance-and-training-grant). Any corporation (i) that has been convicted of a felony criminal violation under any Federal law within the past 24 months or (ii) that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, is not eligible for financial assistance provided with funds, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government. In addition, none of the funds appropriated or otherwise made available by this or any other Act may be available for a contract, grant, or cooperative agreement with an entity that requires employees or contractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information. Additionally, no funds appropriated in this or any other Act may be used to implement or enforce the agreements in Standard Forms 312 and 4414 of the Government or any other nondisclosure policy, form, or agreement if such policy, form, or agreement does not contain the following provisions: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection.”

    IV. Application and Submission Information

    The requirements for submitting an application can be found at 7 CFR 3570.267. All Applicants can access application materials at http://www.grants.gov. Applications must be received by the Agency by the due date listed in the DATES section of this Notice. Applications received after that due date will not be considered for funding. Paper copies of the applications will be submitted to the State Office in which the applicant is headquartered. Electronic submissions should be submitted at http://www.grants.gov. A listing of the Rural Development State Offices may be found at https://www.rd.usda.gov/files/CF_State_Office_Contacts.pdf. For applicants whose headquarters are in the District of Columbia, they will submit their application to the National Office in care of Shirley Stevenson, 1400 Independence Ave. SW, STOP 0787, Room 0175-S, Washington, DC 20250. Both paper and electronic applications must be received by the Agency by the deadlines stated in the DATES section of this Notice. The use of a courier and package tracking for paper applications is strongly encouraged.

    Application information for electronic submissions may be found at http://www.grants.gov.

    Applications will not be accepted via FAX or electronic email.

    V. Application Processing

    Applications will be processed and scored in accordance with this NOSA and 7 CFR 3570.273. Those applications receiving the highest points using the scoring factors found at 7 CFR 3570.273 will be selected for funding. Up to 10% of the available funds may be awarded to the highest scoring Ultimate Recipient(s) as long as they score a minimum score of at least 75. In the case of a tie, the first tie breaker will go to the applicant who scores the highest on matching funds. If two or more applications are still tied after using this tie breaker, the next tie breaker will go to the applicant who scores the highest in the multi-jurisdictional category.

    Once the successful applicants are announced, the State Office will be responsible for obligating the grant funds, executing all obligation documents, and the grant agreement, as provided by the agency.

    VI. Federal Award Administration Information

    1. Federal Award Notice. Within the limit of funds available for such purpose, the awarding official of the Agency shall make grants in ranked order to eligible applicants under the procedures set forth in this Notice and the grant regulation 7 CFR 3570, subpart F.

    Successful applicants will receive a letter in the mail containing instructions on requirements necessary to proceed with execution and performance of the award. This letter is not an authorization to begin performance. In addition, selected applicants will be requested to verify that components of the application have not changed at the time of selection and on the award date, if requested by the Agency.

    The award is not approved until all information has been verified, and the awarding official of the Agency has signed Form RD 1940-1, “Request for Obligation of Funds” and the grant agreement.

    Unsuccessful and ineligible applicants will receive written notification of their review and appeal rights.

    2. Administrative and National Policy Requirements. Grantees will be required to do the following:

    (a) Execute a Grant Agreement.

    (b) Execute Form RD 1940-1.

    (c) Use Form SF 270, “Request for Advance or Reimbursement” to request reimbursement. Provide receipts for expenditures, timesheets, and any other documentation to support the request for reimbursement.

    (d) Provide financial status and project performance reports as set forth at 7 CFR 3570.276.

    (e) Maintain a financial management system that is acceptable to the Agency.

    (f) Ensure that records are maintained to document all activities and expenditures utilizing CF TAT grant funds and any matching funds, if applicable. Receipts for expenditures will be included in this documentation.

    (g) Provide audits or financial information as set forth in 7 CFR 3570.277.

    (h) Complete Form 400-4, “Assurance Agreement.” Each prospective recipient must sign Form RD 400-4, Assurance Agreement, which assures USDA that the recipient is in compliance with Title VI of the Civil Rights Act of 1964, 7 CFR part 15 and other Agency regulations. It also assures that no person will be discriminated against based on race, color or national origin, in regard to any program or activity for which the re-lender receives Federal financial assistance. Finally, it assures that nondiscrimination statements are in the recipient's advertisements and brochures.

    (i) Collect and maintain data provided by ultimate recipients on race, sex, and national origin and ensure Ultimate Recipients collect and maintain this data. Race and ethnicity data will be collected in accordance with OMB Federal Register notice, “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” (62 FR 58782), October 30, 1997. Sex data will be collected in accordance with Title IX of the Education Amendments of 1972. These items should not be submitted with the application but should be available upon request by the Agency.

    (j) Provide a final performance report as set forth at 7 CFR 3570.276(a)(7).

    (k) Identify and report any association or relationship with Rural Development employees.

    (l) The applicant and the ultimate recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Age Discrimination Act of 1975, Executive Order 12250, Executive Order 13166 Limited English Proficiency (LEP), and 7 CFR part 1901, subpart E. The grantee must comply with policies, guidance, and requirements as described in the following applicable Code of Federal Regulations and any successor regulations:

    (1) 2 CFR parts 200 and 400 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards).

    (2) 2 CFR parts 417 and 180 (Government-wide Debarment and Suspension (Nonprocurement)).

    (m) Form AD-3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants” must be signed by corporate applicants who receive an award under this Notice.

    3. Reporting

    Reporting requirements for this grant as set forth at 7 CFR 3570.276.

    VII. Federal Awarding Agency Contact

    Contact the Rural Development state office in the state where the applicant's headquarters is located. A list of Rural Development State Offices can be found at: https://www.rd.usda.gov/files/CF_State_Office_Contacts.pdf. For Applicants located in Washington DC, please contact Shirley Stevenson at (202) 205-9685 or via email at [email protected].

    VIII. Nondiscrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) By mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington DC 20250-9410;

    (2) Fax: (202) 690-7442; or

    (3) Email: [email protected].

    Dated: April 18, 2018. Curtis M Anderson, Acting Administrator, Rural Housing Service.
    [FR Doc. 2018-09351 Filed 5-2-18; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: International Trade Administration, Commerce.

    Title: Surveys for User Satisfaction, Impact, and Needs.

    OMB Control Number: 0625-0275.

    Form Number(s): ITA-XXXX.

    Type of Request: Regular submission; new information collection; generic clearance.

    Number of Respondents: 50,000.

    Average Hours per Response: 0.5 (30 minutes).

    Burden Hours: 25,000 (annual).

    Needs and Uses: The International Trade Administration provides a multitude of international trade related programs to help U.S. businesses. These programs include information products, services, and trade events. To accomplish its mission effectively, ITA needs ongoing feedback on its programs. This information collection item allows ITA to solicit clients' opinions about the use of ITA products, services, and trade events. To promote optimal use and provide focused and effective improvements to ITA programs, we are requesting approval for this clearance package; including: Use of Comment Cards (i.e. transactional-based surveys) to collect feedback immediately after ITA assistance is provided to clients; use of annual surveys (i.e. relationship-based surveys) to gauge overall satisfaction, impact and needs for clients with ITA assistance provided over a period time; use of multiple data collection methods (i.e. web-enabled surveys sent via email, telephone interviews, automated telephone surveys, and in-person surveys via mobile devices/laptops/tablets at trade events/shows) to enable clients to conveniently respond to requests for feedback; and a forecast of burden hours. Without this information, ITA is unable to systematically determine the actual and relative levels of performance for its programs and products/services and to provide clear, actionable insights for managerial intervention. This information will be used for program evaluation and improvement, strategic planning, allocation of resources and stakeholder reporting.

    Affected Public: Business or other for-profit organizations; Not-for-profit institutions; State, Local, or Tribal government; and Federal government.

    Frequency: Once a year.

    Respondent's Obligation: None.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09380 Filed 5-2-18; 8:45 am] BILLING CODE 3510-FP-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-64-2018] Foreign-Trade Zone 24—Pittston, Pennsylvania; Application for Subzone Expansion; Brake Parts Inc; Hazleton, Pennsylvania

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Eastern Distribution Center, Inc., grantee of FTZ 24, requesting an expansion of Subzone 24E on behalf of Brake Parts Inc in Hazleton, Pennsylvania. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on April 30, 2018.

    Subzone 24E was approved on March 2, 2017 (Doc. S-169-2016). The subzone currently consists of the following site: Site 1 (28 acres)—62 Green Mountain Road, Hazleton, Schuylkill County.

    The current request would add 15.2 acres to the existing subzone site. No additional authorization for production activity has been requested at this time. The subzone would continue to be subject to the existing activation limit of FTZ 24.

    In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is June 12, 2018. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 27, 2018.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's website, which is accessible via www.trade.gov/ftz.

    For further information, contact Elizabeth Whiteman at [email protected] or (202) 482-0473.

    Dated: April 30, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-09387 Filed 5-2-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Proposed Information Collection Renewal; Comment Request; Domestic and International Client Export Services and Customized Forms AGENCY:

    International Trade Administration, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Joe Carter, Office of Strategic Planning, 1999 Broadway, Suite 2205 Denver, CO 80220, (303) 844-5656, [email protected].

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    The International Trade Administration's (ITA) Global Markets/U.S. Commercial Service (CS) is mandated by Congress to broaden and deepen the U.S. exporter base. The CS accomplishes this by providing counseling, programs and services to help U.S. organizations export and conduct business in overseas markets. This information collection package enables the CS to provide appropriate export services to U.S. exporters and international buyers.

    CS offers a variety of services to enable clients to begin exporting/importing or to expand existing exporting/importing efforts. Clients may learn about our services from business related entities such as the National Association of Manufacturers, Federal Express, State Economic Development offices, the internet or word of mouth. The CS provides a standard set of services to assist clients with identifying potential overseas partners, establishing meeting programs with appropriate overseas business contacts and providing due diligence reports on potential overseas business partners. The CS also provides other export-related services considered to be of a “customized nature” because they do not fit into the standard set of CS export services, but are driven by unique business needs of individual clients.

    The dissemination of international market information and potential business opportunities for U.S. exporters are critical components of the Commercial Service's export assistance programs and services. U.S. companies conveniently access and indicate their interest in these services by completing the appropriate forms via ITA and CS U.S. Export Assistance Center websites.

    The CS works closely with clients to educate them about the exporting/importing process and to help prepare them for exporting/importing. When a client is ready to begin the exporting/importing process our field staff provide counseling to assist in the development of an exporting strategy. We provide fee-based, export-related services designed to help client export/import. The type of export-related service that is proposed to a client depends upon a client's business goals and where they are in the export/import process. Some clients are at the beginning of the export process and require assistance with identifying potential distributors, whereas other clients may be ready to sign a contract with a potential distributor and require due diligence assistance.

    Before the CS can provide export-related services to clients, such as assistance with identifying potential partners or providing due diligence, specific information is required to determine the client's business objectives and needs. For example, before we can provide a service to identify potential business partners we need to know whether the client would like a potential partner to have specific technical qualifications, coverage in a specific market, English or foreign language ability or warehousing requirements. This information collection is designed to elicit such data so that appropriate services can be proposed and conducted to most effectively meet the client's exporting goals. Without these forms the CS is unable to provide services when requested by clients.

    The forms ask U.S. exporters standard questions about their company details, export experience, information about the products or services they wish to export and exporting goals. A few questions are tailored to a specific program type and will vary slightly with each program. CS staff use this information to gain an understanding of client's needs and objectives so that they can provide appropriate and effective export assistance tailored to an exporter's requirements.

    II. Method of Collection

    CS is seeking approval for the following data collection methods to provide flexibility for how clients will provide information about their company details, export experience, information about the products or services they wish to export and exporting goals. Clients will be asked to provide their information on our website (export.gov), web-based survey or form links, or paper-based forms.

    III. Data

    OMB Control Number: 0625-0143.

    Form Number(s): ITA-4096P.

    Type of Review: Renewal submission.

    Affected Public: Business or other for-profit organizations; Not-for-profit institutions; State, Local, or Tribal government; and Federal government.

    Estimated Number of Respondents: 200,000.

    Estimated Time per Response: 10 minutes.

    Estimated Total Annual Burden Hours: 33,333 hours.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09381 Filed 5-2-18; 8:45 am] BILLING CODE 3510-FP-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Western and Central Pacific Fisheries Convention Vessel Information Family of Forms AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Rini Ghosh, 808-725-5033 or [email protected].

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for an extension of a currently approved information collection.

    National Marine Fisheries Service (NMFS) has issued regulations under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFCIA; 16 U.S.C. 6901 et seq.) to carry out the obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention), including implementing the decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission). The regulations include requirements for the owners or operators of U.S. vessels to: (1) Apply for and obtain a WCPFC Area Endorsement if the vessel is used for fishing for highly migratory species on the high seas in the Convention Area (50 CFR 300.212), (2) complete and submit a Foreign Exclusive Economic Zone (EEZ) Form if the vessel is used for fishing for highly migratory species in the Convention Area in areas under the jurisdiction of any nation other than the United States (50 CFR 300.213), and (3) request and obtain an IMO number if the vessel is used for fishing for highly migratory species on the high seas or in areas under the jurisdiction of any nation other than the United States (50 CFR 300.217(c)). An IMO number is the unique number issued for a vessel under the ship identification number scheme established by the International Maritime Organization or, for vessels that are not strictly subject to that scheme, the unique number issued by the administrator of that scheme using the scheme's numbering format, sometimes known as a Lloyd's Register number or LR number.

    The application for WCPFC Area Endorsements calls for specified information about the vessel and its operator that is not already collected via the application for high seas fishing permits issued under 50 CFR 300.333. The Foreign EEZ Form calls for specified information about the vessel, its owners and operators and any fishing authorizations issued by other nations. The information required to obtain an IMO number is not submitted to NMFS directly, but to a third party and serves to ensure that IMO numbers are issued for certain categories of vessels.

    This information collected under the three requirements is used by NOAA, the U.S. Coast Guard, and the Commission to monitor the size and composition of the HMS fleets in the Convention Area for compliance-related and scientific purposes and to ensure that IMO numbers are issued for certain categories of vessels.

    II. Method of Collection

    Respondents must submit some of the information by mail or in person via paper forms, and have a choice of submitting some of the information electronically, by mail, or in person.

    III. Data

    OMB Control Number: 0648-0595.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a currently approved collection).

    Affected Public: Business or other for-profit organizations; individuals or households.

    Estimated Number of Respondents: 55.

    Estimated Time per Response: WCPFC Area Endorsement Application, 60 minutes; Foreign EEZ Form, 90 minutes; IMO number application, 30 minutes.

    Estimated Total Annual Burden Hours: 58.

    Estimated Total Annual Cost to Public: $2,465 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: April 30, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-09374 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG200 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, May 24, 2018 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Hotel Providence, 139 Mathewson Street, Providence, RI 02903; Phone: (401) 861-8000.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Scallop Committee will provide research recommendations for the 2018/19 Scallop Research Set-Aside (RSA) federal funding announcement. They also plan to review progress on 2018 work priorities, focusing on (1) standard default measures; (2) monitoring and catch accounting. Progress on other work items may be discussed, as well as the initiation of appropriate vehicles (Specifications package, Framework, Amendment) to complete work items. The committee will also receive an update on Scallop Committee tasking re: Achieved at-sea monitoring coverage levels. Other business may be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 30, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09393 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG203 Atlantic Coastal Fisheries Cooperative Management Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The Acting Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit Application from the Atlantic Offshore Lobsterman's Association and Maine Department of Marine Resources contains all the required information and warrants further consideration. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act and the Atlantic Coastal Fisheries Cooperative Management Act require publication of this notice to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.

    DATES:

    Comments must be received on or before May 18, 2018.

    ADDRESSES:

    You may submit written comments by any of the following methods:

    Email: [email protected]. Include in the subject line “Comments on AOLA Lobster EFP.”

    Mail: Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on AOLA Lobster EFP.”

    FOR FURTHER INFORMATION CONTACT:

    Laura Hansen, NOAA Affiliate, (978) 281-9225.

    SUPPLEMENTARY INFORMATION:

    The Atlantic Offshore Lobstermen's Association (AOLA) and Maine Department of Marine Resources (ME DMR) submitted a complete application for an Exempted Fishing Permit (EFP) on April 10, 2018, to conduct fishing activities that the regulations would otherwise restrict. The EFP would authorize one commercial fishing vessel to conduct a lobster tagging study using experimental traps to track movements and migrations of American lobster in the Gulf of Maine/Georges Bank stock. This EFP proposes to use 300 experimental traps in Lobster Conservation Management Area (LCMA) 3 in statistical area 515. Maps depicting this area is available on request.

    AOLA and ME DMR are requesting exemptions from the following Federal lobster regulations:

    1. Gear specification requirements to allow for the use of traps with escape vents compliant with LCMA 1, but not LCMA 3 (50 CFR 697.21(c)(4));

    2. Trap limit requirements to allow for trap limits to be exceeded (§ 697.19(a) for LCMA 1);

    3. Trap tag requirements to allow for alternatively-tagged traps (§ 697.19(i)); and

    4. LCMA designation requirements to allow fishing with experimental traps in LCMA 3 without an LCMA 3 designation on a Federal permit (§ 697.4(a)(7)(i)).

    The purpose of this lobster study is to track migration in the Gulf of Maine/Georges Bank stock area, estimate growth rates via imaging technology and direct measurements, and characterize catch-per-unit-effort and spatial distribution of egg-bearing females. This study will expand on data collected in 2015 from a New Hampshire Fish and Game and ALOA's fishery dependent lobster survey, which gathered some information on the spatial and temporal distribution of mature lobsters in the Gulf of Maine/Georges Bank area.

    Trawls will be compliant with the Atlantic Large Whale Take Reduction Plan and consistent with LCMA 1 trap standards. Sampling will occur from June to July. Trawls will be hauled no more than 8 times over the 40-day study period. Researchers have selected four primary research sites and one alternate site. Trawls will be initially deployed by the vessel's crew alone, but all hauling activities will be supervised by ME DMR staff. All lobsters caught will be measured, tagged, and returned to the water. All other species will be immediately returned to the sea. No catch from the study will be landed for sale.

    If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. We may grant EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. The EFP would prohibit any fishing activity conducted outside the scope of the exempted fishing activities.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 30, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09385 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG198 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council will host a meeting of the Council Coordination Committee (CCC), consisting of the Regional Fishery Management Council chairs, vice chairs, and executive directors on May 22 through May 24, 2018.

    DATES:

    The CCC will begin at 1 p.m. on Tuesday, May 22, 2018, recess at 4:30 p.m.; and reconvene at 8:30 a.m. on Wednesday, May 23, 2018, recess at 4:30 p.m.; and reconvene at 8:30 a.m. Thursday, May 24, 2018 and adjourn at 5 p.m. or when business is complete. The Council Communications Group (CCG) will meet Tuesday, May 22, 2018 at 8:30 a.m., recess at 5 p.m.; and reconvene at 8:30 a.m. on Wednesday, May 23, 2018, adjourn at 5 p.m.

    ADDRESSES:

    The meeting will be held at Harrigan Centennial Hall, 330 Harbor Drive, Sitka, AK; Westmark Hotel, 330 Seward Street, Sitka, AK.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Avenue, Suite 306, Anchorage, AK 99501-2252.

    FOR FURTHER INFORMATION CONTACT:

    David Witherell, at (907) 271-2809.

    SUPPLEMENTARY INFORMATION: Agenda Tuesday, May 22, 2018 through Thursday, May 24, 2018 CCC Session: The agenda for the CCC's plenary session will include the following issues.

    (1) Budget Update

    (2) National Bycatch Reduction Policy

    (3) Electronic Monitoring Policy Directive

    (4) Data Modernization

    (5) Development of Electronic Monitoring in the North Pacific

    (6) Legislative Update

    (7) Recusal Policy

    (8) Ecosystem Based Fishery Management Regional Implementation Plans

    (9) Exempted Fishing Permits

    (10) Best Scientific Information Available

    (11) NMFS Policy Directive

    (12) Allocation Reviews

    (13) Research Priorities

    (14) Aquaculture

    (15) International Affairs/Seafood Inspection

    (16) Regulatory Reform

    (17) Recreational Fisheries Overview

    (18) Citizen Science

    (19) NEFMC Program Review

    (20) NOAA Fisheries website Transition

    (21) CCC Workgroup Reports (communications group, habitat committee, scientific coordination subcommittee)

    (22) CCC Terms of Reference

    (23) Other Business

    The CCG agenda will include the following issues:

    (1) Communication and technology tools and procedures

    (2) Promoting the regional Council system

    (3) Communicating effectively using social media

    (4) Public comment/input outside of Council meetings/public hearings

    (5) Working effectively with the news media

    (6) Regional and national communications coordination between councils and NOAA

    (7) Council and advisory body meeting communication protocols

    (8) Education programs and training of Council/staff

    (9) Publications and outreach

    (10) Wrap up: Path forward

    The Agenda is subject to change, and the latest version will be posted at http://www.npfmc.org/. Public Comment

    Public comment letters will be accepted and should be submitted either electronically to Diana Evans, Council staff: [email protected] or through the mail: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: April 27, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09342 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Assessment of the Social and Economic Impact of Hurricanes and Other Climate Related Natural Disasters on Commercial and Recreational Fishing Industries in the Eastern, Gulf Coast and Caribbean Territories of the United States.

    OMB Control Number: 0648-xxxx.

    Form Number(s): None.

    Type of Request: Regular (request for a new information collection).

    Number of Respondents: 18,747.

    Average Hours Per Response: 15-20 minutes.

    Burden Hours: 9,373.

    Needs and Uses: This request is for a new information collection.

    The NOAA Fisheries Office of Science and Technology's Economics and Social Analysis Division seeks to conduct assessments of the social and economic impacts from hurricanes and other climate related natural disasters on commercial and recreational fishing industries in the eastern, gulf coast and Caribbean territories of the United States. It seeks to collect data on the immediate and long-term disruption and impediments to recovery of normal business practices to the commercial and recreational fishing industries. Data would be collected from commercial and recreational for hire fishermen, fish dealers, bait and tackle stores, marinas and other businesses dependent on the fishing industry for livelihood. The data will improve research and analysis of potential fishery management actions by understanding the immediate effects and/or long-term compounding effects of natural disasters on communities most dependent on commercial and recreational fishing. This data collection is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and essential for implementing National Standard 8, which calls for the sustained participation of fishing communities.

    Affected Public: Individuals or households; business or other for profit organizations.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: April 30, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-09375 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG053 Notice of Intent To Prepare an Environmental Impact Statement AGENCY:

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

    ACTION:

    Notice of intent.

    SUMMARY:

    Pursuant to the National Environmental Policy Act (NEPA), this notice announces that NMFS intends to prepare an Environmental Impact Statement (EIS) to inform its decision of whether to determine that a resource management plan (RMP) jointly developed by the Washington Department of Fish and Wildlife (WDFW) and the Puget Sound Tribes (Tribes), collectively the co-managers, meets requirements under Limit 6 of the ESA 4(d) rule for the ESA-listed Puget Sound Chinook salmon Evolutionarily Significant Unit (ESU), which is listed as threatened under the Endangered Species Act (ESA). The purpose of the RMP is to manage commercial, recreational, ceremonial, and subsistence salmon fisheries potentially affecting the Puget Sound Chinook ESU within the marine and freshwater areas of Puget Sound, from the entrance of the Strait of Juan de Fuca inward, including fisheries under the jurisdiction of the Pacific Salmon Commission's Fraser River Panel. In order for NMFS to make a positive determination under Limit 6 on the RMP, NMFS must conclude that the RMP's management framework is consistent with the criteria under Limit 6. Limit 6 applies to RMPs developed jointly by the States of Washington, Oregon and/or Idaho and the Tribes within the continuing jurisdiction of United States v. Washington or United States v. Oregon. NMFS provides this notice to advise other agencies and the public of our plan to analyze effects related to approval and implementation of the RMP and to obtain suggestions and information that may be useful to the scope of issues and alternatives to include in the EIS.

    DATES:

    Written or electronic scoping comments must be received at the appropriate address or email mailbox (see ADDRESSES) on or before June 4, 2018.

    ADDRESSES:

    Written comments should be sent to Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 1201 NE Lloyd Boulevard. Suite 1100, Portland, OR 97232. Comments may also be sent by email to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Emi Kondo, NMFS West Coast Region, telephone: 503-736-4739, email: [email protected].

    SUPPLEMENTARY INFORMATION: Background

    The Puget Sound Chinook Salmon ESU was listed as threatened under the ESA in 1999 (64 FR 14308, March 24, 1999). The definition of the ESU has been revised twice to include specific artificial propagation programs (70 FR 37160, June 28, 2005; 79 FR 20802, April 14, 2014). The current description of the ESU includes naturally spawned Chinook salmon originating from rivers flowing into Puget Sound from the Elwha River (inclusive) eastward, including rivers in Hood Canal, South Sound, North Sound, and the Strait of Georgia; also included are Chinook salmon from 26 artificial propagation programs (79 FR 20802, April 14, 2014).

    Puget Sound Chinook salmon have a complex life history, migrating from their natal streams throughout Puget Sound to the Pacific Ocean, where they generally spend one to three years before returning to their natal streams, primarily as three- and four-year-old adults. In their ocean migration, they travel north along the west coast into Canadian, and at times as far north as Alaskan, waters. In doing so, they are caught in a broad range of fisheries, which are managed by an array of agencies, bodies, and governments including NMFS, the States of Washington, Oregon, and Alaska, more than 20 Native American tribal jurisdictions, the North Pacific Fisheries Management Council, the Pacific Fisheries Management Council, and the Pacific Salmon Commission.

    Section 4(d) of the ESA (16 U.S.C. 1531(d)) requires the Secretary of Commerce (Secretary) to adopt such regulations that are deemed necessary and advisable for the conservation of species listed as threatened. Such protective regulations may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a)(1). Those section 9(a)(1) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) the relevant listed species. In 2000, NMFS published a rule, under section 4(d), that specified take prohibitions for several ESA-listed salmon ESUs, including Puget Sound Chinook salmon (65 FR 42422, July 10, 2000). NMFS did not find it necessary and advisable to apply the take prohibitions described in section 9(a)(1)(B) and 9(a)(1)(C) to specified categories of activities that contribute to conserving listed salmonids or are governed by a program that adequately limits impacts on listed salmonids; therefore, the 4(d) rule included 13 limits on the application of the ESA section 9(a)(1) take prohibitions. Limit 6 of the 4(d) rule applies to activities in compliance with joint tribal/state plans (e.g., RMPs) developed within the continuing jurisdiction of United States v. Washington or United States v. Oregon. The co-managers developed an RMP that NMFS determined was consistent with Limit 6 and was implemented from 2011 to 2014. Since the expiration of that RMP after 2014 fisheries, the fishery has since been managed on a year-to-year basis. The co-managers are currently developing an updated RMP, the Comprehensive Management Plan for Puget Sound Chinook: Harvest Management Component, to guide conservation and harvest of Puget Sound Chinook salmon in Washington for 10 years.

    Once the co-managers have submitted the RMP for NMFS' approval, NMFS must make a determination under Limit 6 of the 4(d) rule whether the co-managers' RMP meets the criteria of the 4(d) rule and whether it does or does not appreciably reduce the likelihood of survival and recovery of Puget Sound Chinook Salmon ESU (50 CFR 223.203(b)(6)(i)). This determination is a Federal action that requires review under NEPA.

    Environmental Impact Statement

    NEPA (42 U.S.C. 4321 et seq.) requires that Federal agencies conduct an environmental analysis of their proposed actions to determine if the actions may significantly affect the human environment. NMFS has determined that an EIS should be prepared under NEPA for the purpose of informing our determination under Limit 6 of the 4(d) rule. We will prepare an EIS in accordance with NEPA requirements, as amended (42 U.S.C. 4321 et seq.); NEPA implementing regulations (40 CFR 1500-1508); and other Federal laws, regulations, and policies.

    The Proposed Action for analysis in the Final Environmental Impact Statement is NMFS's approval of a Puget Sound Chinook Harvest Resource Management Plan which NMFS determines would adequately address the criteria established for Limit 6 of the ESA 4(d) rule for the ESA-listed Puget Sound Chinook Salmon ESU. NMFS' purpose for the proposed action is to respond to the co-manager's request for an exemption from the take prohibitions of section 9 of the ESA for commercial, recreational, and tribal salmon harvest programs included in an RMP for approval under Limit 6 of the ESA 4(d) rule for the ESA-listed Puget Sound Chinook Salmon Evolutionarily Significant Unit (ESU). NMFS' need for the proposed action is two-fold: To ensure the sustainability and recovery of Puget Sound Chinook salmon; and to facilitate, as appropriate, tribal treaty and non-tribal fishing opportunities as described under the RMP, consistent with tribal treaty rights and court rulings in United States v. Washington.

    Development of Initial Alternatives

    NMFS has preliminarily identified the following three alternatives for the public to consider.

    Mixed Escapement and Exploitation Rate Alternative (Proposed Action): Make a 4(d) determination on an RMP that utilizes a mixture of management-unit-specific escapement thresholds and exploitation rate ceilings.

    Fixed Management Unit Escapement Goal Alternative: Make a 4(d) determination on an RMP that sets fixed escapement goals for Puget Sound Chinook management units.

    No-action Alternative (No-fishing Alternative): Under this alternative, NMFS would not make a determination on the RMP; therefore, there would be no authorized take of Puget Sound Chinook salmon in Puget Sound salmon fisheries through the 4(d) rule. Although this alternative would not meet the purpose and need of the proposed action, a No-action Alternative is required in our NEPA analysis.

    Request for Comments

    NMFS requests data, comments, pertinent information, or suggestions from the public, other concerned governmental agencies, the scientific community, tribes, the business community, or any other interested party regarding the proposed action discussed in this notice. We will consider all comments we receive that are relevant to the proposed action and relevant to complying with the requirements of NEPA. We particularly seek specific comments concerning:

    (1) The direct, indirect, and cumulative effects that implementation of any reasonable alternative could have on endangered and threatened species, and other non-ESA-listed species and their habitats;

    (2) Other reasonable alternatives (in addition to the initial alternatives presented in this notice), and their associated effects. NMFS is particularly interested in alternatives that include ecosystem considerations, including the conservation and harvest of Puget Sound Chinook salmon, recovery of the ESA-listed Southern Resident killer whales, and needs of other wildlife;

    (3) Measures that would minimize and mitigate potentially adverse effects of the proposed action; and

    (4) Other plans or projects that might be relevant to this project.

    The EIS will analyze the effects that the various alternatives would have on salmon and fish species in Puget Sound, as well as the other aspects of the human environment. These aspects may include other fish, habitat, marine nutrient transport, seabirds, marine mammals, marine invertebrates, ESA-listed species, vegetation, socioeconomics, environmental justice, cultural resources, and the cumulative impacts of the alternatives.

    Authority:

    42 U.S.C. 4321 et seq.; 40 CFR 1500-1508; and Companion Manual for NOAA Administrative Order 216-6A, 82 FR 4306.

    Dated: April 26, 2018. Angela Somma, Chief, Endangered Species Division, National Marine Fisheries Service.
    [FR Doc. 2018-09337 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: West Coast Region Gear Identification Requirements.

    OMB Control Number: 0648-0352.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 811.

    Average Hours Per Response: 15 minutes.

    Burden Hours: 648.

    Needs and Uses: This request is for extension of a currently approved information collection.

    The success of fisheries management programs depends significantly on regulatory compliance. The requirements that fishing gear be marked are essential to facilitate enforcement. The ability to link fishing gear to the vessel owner or operator is crucial to enforcement of regulations issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The marking of fishing gear is also valuable in actions concerning damage, loss, and civil proceedings. The regulations specify that fishing gear must be marked with the vessel's official number, Federal permit or tag number, or some other specified form of identification. The regulations further specify how the gear is to be marked (e.g., location and color). Law enforcement personnel rely on gear marking information to assure compliance with fisheries management regulations. Gear that is not properly identified is confiscated. Gear violations are more readily prosecuted when the gear is marked, and this allows for more cost-effective enforcement. Gear marking helps ensure that a vessel harvests fish only from its own traps/pots/other gear are not illegally placed. Cooperating fishermen also use the gear marking numbers to report suspicious or non-compliant activities that they observe, and to report placement or occurrence of gear in unauthorized areas. The identifying number on fishing gear is used by the National Marine Fisheries Service (NMFS), the United States Coast Guard (USCG), and other marine agencies in issuing regulations, prosecutions, and other enforcement actions necessary to support sustainable fisheries behaviors as intended in regulations. Regulation-compliant fishermen ultimately benefit from these requirements, as unauthorized and illegal fishing is deterred and more burdensome regulations are avoided.

    Affected Public: Business or other for-profit organizations.

    Frequency: Every five years.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: April 30, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-09372 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG209 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, May 23, 2018 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Providence Biltmore, 10 Dorrance Street, Providence, RI 02903; telephone: (401) 421-0700.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    The Advisory Panel will review draft alternatives to prolong the wing fishery that focus on modifying the seasonal skate wing possession limits including a potential intermediate possession limit. Other business will be discussed as necessary.

    Although non-emergency issues not contained on this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 30, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09395 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG208 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Atlantic Mackerel, Squid, and Butterfish (MSB) Committee and MSB Advisory Panel of the Mid-Atlantic Fishery Management Council (Council) will hold a joint meeting via webinar.

    DATES:

    The meeting will be held on Thursday, May 17, 2018 beginning at 8:30 a.m. and conclude by noon. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held via webinar with a telephone-only audio connection. Connection details are posted at http://www.mafmc.org/council-events/2018/joint-msb-committee-ap-meeting.

    Council address: Mid-Atlantic Fishery Management Council, 800 N State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331; website: www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to develop recommendations for the Council regarding modifications to the Atlantic mackerel commercial fishery closure possession limits. Currently no Atlantic mackerel possession is allowed by federally-permitted commercial vessels once 100% of the commercial landings quota is reached. The Council is considering changing the trip limit once 100% of the commercial landings quota is reached. The Council is scheduled to take final action on this issue at its June 2018 Council meeting via a Framework Adjustment to the MSB Fishery Management Plan.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to any meeting date.

    Dated: April 30, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09394 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG210 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, May 23, 2018 at 1 p.m.

    ADDRESSES:

    The meeting will be held at the Providence Biltmore, 10 Dorrance Street, Providence, RI 02903; telephone: (401) 421-0700.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    The Committee will review draft alternatives to prolong the wing fishery that focus on modifying the seasonal skate wing possession limits including a potential intermediate possession limit. Other business will be discussed as necessary.

    Although non-emergency issues not contained on this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 30, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09396 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Pacific Island Pelagic Longline Fisheries; Short-tailed Albatross-Fisheries Interaction Recovery Reporting AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Gabriel Forrester, NMFS, (808) 725-5179 or [email protected].

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a currently approved information collection. Federal regulations require the operator of a vessel with a Hawaii longline limited access permit vessel to notify NMFS if an endangered short-tailed albatross is hooked or entangled during fishing operations. Following the retrieval of the albatross from the ocean the vessel operator must record the condition of the bird on a recovery data form. A veterinarian will use the information to provide advice to the captain for caring for the bird. If the albatross is dead, the captain must attach an identification tag to the carcass to assist the U.S. Fish and Wildlife Service (USFWS) biologists in subsequent studies. This collection of information is one of the terms and conditions contained in the Endangered Species Act Section 7 biological opinion issued by USFWS, and is intended to maximize the probability of the long-term survival of short-tailed albatrosses accidentally taken by longline gear.

    II. Method of Collection

    Respondents have a choice of either electronic or paper forms. Methods of submittal include email or electronic forms, or mail or facsimile transmission of paper forms within 72 hours of landing.

    III. Data

    OMB Control Number: 0648-0456.

    Form Number(s): None.

    Type of Review: Regular (extension of a currently approved information collection).

    Affected Public: Business or other for-profit organizations; individuals or households.

    Estimated Number of Respondents: 1.

    Estimated Time per Response: Notification, reporting, and tagging and specimen handling, 1 hour each.

    Estimated Total Annual Burden Hours: 3.

    Estimated Total Annual Cost to Public: $80 in recordkeeping/reporting costs, mainly for at-sea communication costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: April 30, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-09373 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF850 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off of New York AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Statoil Wind U.S. LLC (Statoil) to incidentally harass, by Level B harassment only, marine mammals during marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) (Lease Area) and coastal waters where one or more cable route corridors will be established.

    DATES:

    This Authorization is valid for one year from the date of issuance.

    FOR FURTHER INFORMATION CONTACT:

    Jordan Carduner, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On November 9, 2017, NMFS received a request from Statoil for an IHA to take marine mammals incidental to marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) and coastal waters where one or more cable route corridors will be established. A revised application was received on January 8, 2018. NMFS deemed that request to be adequate and complete. Statoil's request is for take of 11 marine mammal species by Level B harassment. Neither Statoil nor NMFS expects serious injury or mortality to result from this activity and the activity is expected to last no more than one year, therefore, an IHA is appropriate.

    Description of the Specified Activity

    Statoil plans to conduct marine site characterization surveys in the marine environment of the approximately 79,350-acre Lease Area located approximately 11.5 nautical miles (nm) from Jones Beach, New York (see Figure 1 in the IHA application). Additionally, one or more cable route corridors will be established between the Lease Area and New York, identified as the Cable Route Area (see Figure 1 in the IHA application). Cable route corridors are anticipated to be 152 meters (m, 500 feet (ft)) wide and may have an overall length of as much as 135 nm. For the purpose of this IHA, the survey area is designated as the Lease Area and cable route corridors. Water depths across the Lease Area range from approximately 22 to 41 m (72 to 135 ft) while the cable route corridors will extend to shallow water areas near landfall locations. Surveys will last for approximately 20 weeks. This schedule is based on 24-hour operations and includes potential down time due to inclement weather.

    The purpose of the surveys are to support the siting, design, and deployment of up to three meteorological data buoy deployment areas and to obtain a baseline assessment of seabed/sub-surface soil conditions in the Lease Area and cable route corridors to support the siting of the proposed offshore wind farm. Underwater sound resulting from Statoil's site characterization surveys has the potential to result in incidental take of marine mammals in the form of behavioral harassment.

    A detailed description of the planned survey activities, including types of survey equipment planned for use, is provided in the Federal Register notice for the proposed IHA (83 FR 7655; February 22, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not repeated here. Please refer to that Federal Register notice for the description of the specific activity.

    Comments and Responses

    NMFS published a notice of proposed IHA in the Federal Register on February 22, 2018 (83 FR 7655). During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission) and a comment letter from a group of non-governmental organizations (NGOs), including Natural Resources Defense Council, the Wildlife Conservation Society, the National Wildlife Federation, the Conservation Law Foundation, Defenders of Wildlife, Surfrider Foundation, International Fund for Animal Welfare, the Nature Conservancy, and Southern Environmental Law Center. NMFS has posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The following is a summary of the public comments received and NMFS's responses.

    Comment 1: The Commission expressed concern that the method used to estimate the numbers of takes, which summed fractions of takes for each species across project days, does not account for and negates the intent of NMFS' 24-hour reset policy and recommended that NMFS share the rounding criteria with the Commission in an expeditious manner.

    NMFS Response: NMFS appreciates the Commission's ongoing concern in this matter. Calculating predicted takes is not an exact science and there are arguments for taking different mathematical approaches in different situations, and for making qualitative adjustments in other situations. We believe, however, that the methodology used for take calculation in this IHA remains appropriate and is not at odds with the 24-hour reset policy the Commission references. We look forward to continued discussion with the Commission on this matter and will share the rounding guidance as soon as it is ready for public review.

    Comment 2: The Commission recommended that, until behavioral thresholds are updated, NMFS require applicants to use the 120-decibel (dB) re 1 micropascal (μPa), rather than 160-dB re 1μPa, threshold for acoustic, non-impulsive sources (e.g., sub-bottom profilers/chirps, echosounders, and other sonars including side-scan and fish-finding).

    NMFS Response: Certain sub-bottom profiling systems are appropriately considered to be impulsive sources (e.g., boomers, sparkers); therefore, the threshold of 160 dB re 1μPa will continue to be used for those sources. Other source types referenced by the Commission (e.g., chirp sub-bottom profilers, echosounders, and other sonars including side-scan and fish-finding) produce signals that are not necessarily strictly impulsive; however, NMFS finds that the 160-dB rms threshold is most appropriate for use in evaluating potential behavioral impacts to marine mammals because the temporal characteristics (i.e., intermittency) of these sources are better captured by this threshold. The 120-dB threshold is associated with continuous sources and was derived based on studies examining behavioral responses to drilling and dredging. Continuous sounds are those whose sound pressure level remains above that of the ambient sound, with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 2005). Examples of sounds that NMFS would categorize as continuous are those associated with drilling or vibratory pile driving activities. Intermittent sounds are defined as sounds with interrupted levels of low or no sound (NIOSH, 1998). Thus, signals produced by these source types are not continuous but rather intermittent sounds. With regard to behavioral thresholds, we consider the temporal and spectral characteristics of signals produced by these source types to more closely resemble those of an impulse sound rather than a continuous sound. The threshold of 160 dB re 1μPa is typically associated with impulsive sources, which are inherently intermittent. Therefore, the 160 dB threshold (typically associated with impulsive sources) is more appropriate than the 120 dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources.

    Comment 3: The Commission requested clarification regarding certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of section 101(a)(5)(D) of the MMPA.

    NMFS Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to circumstances where: the activities are identical or nearly identical to those analyzed in the proposed IHA; monitoring does not indicate impacts that were not previously analyzed and authorized; and, the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as they are for all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

    Comment 4: The commenters expressed concern regarding the marine mammal density estimates used to calculate take. Specifically, the commenters stated the estimates derived from models presented in Roberts et al. (2016) may underrepresent density and seasonal presence of large whales in the New York Bight region, and recommended that NMFS consider additional data sources in density modeling for future analyses of estimated take, including initial data from the newly launched New York Bight whale monitoring program and other State efforts, existing passive acoustic monitoring data, and opportunistic marine mammal sightings data available from whale watching records. The commenters further asserted that the method used to estimate densities of North Atlantic right whales does not account for the potentially elevated seasonal presence of right whales in the New York Bight during March and April and recommended that NMFS adjust density estimates it derived from Roberts et al. (2016) to account for the higher relative presence of right whales in the New York Bight for the months when the surveys are expected to occur.

    NMFS Response: NMFS has determined that the data provided by Roberts et al. (2016) represents the best available information concerning marine mammal density in the survey area and has used it accordingly. NMFS has considered other available information, including that cited by the commenters, and determined that it does not contradict the information provided by Roberts et al. (2016). The information discussed by the commenters does not provide data in a format that is directly usable in an acoustic exposure analysis and the commenters make no useful recommendation regarding how to do so. We will review the data sources recommended by the commenters and will consider their suitability for inclusion in future analyses, as requested by the commenters. Regarding the method used to estimate cetacean densities, NMFS determined the method used is conservative in that the highest seasonal density estimate was used to estimate take over the duration of the entire survey, including during seasons that would be expected to have lower densities. In the case of the North Atlantic right whale, the season with the highest predicted density was Spring, thus right whale density in March and April was in fact used to predict the species' density for the duration of the survey.

    Comment 5: Regarding mitigation measures, the NGOs recommended NMFS impose a restriction on site assessment and characterization activities that have the potential to injure or harass the North Atlantic right whale from November 1st to April 30th.

    NMFS Response: In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat; and (2) the practicability of the measures for applicant implementation, which may consider such things as relative cost and impact on operations.

    Statoil determined the planned duration of the survey based on their data acquisition needs, which are largely driven by the Bureau of Ocean Energy Management's (BOEM's) data collection requirements prior to required submission of a construction and operations plan (COP). Any effort on the part of NMFS to restrict the months during which the survey could operate would likely have the effect of forcing the applicant to conduct additional months of surveys the following year, resulting in increased costs incurred by the applicant and additional time on the water with associated additional production of underwater noise which could have further potential impacts to marine mammals. Thus the time and area restrictions recommended by the commenters would not be practicable for the applicant to implement and would to some degree offset the benefit of the recommended measure. In addition, our analysis of the potential impacts of the survey on right whales does not indicate that such closures are warranted, as potential impacts to right whales from the survey activities would be limited to short-term behavioral responses; no marine mammal injury is expected as a result of the survey, nor is injury authorized in the IHA. Thus, in this case, the limited potential benefits of time and area restrictions, when considered in concert with the impracticability and increased cost on the part of the applicant that would result from such restrictions, suggests time and area restrictions are not warranted in this case. Existing mitigation measures, including exclusion zones, ramp-up of survey equipment, and vessel strike avoidance measures, are sufficiently protective to ensure the least practicable adverse impact on species or stocks and their habitat.

    Comment 6: Regarding mitigation measures, the NGOs recommended that NMFS require that geophysical surveys commence, with ramp-up, during daylight hours only to maximize the probability that North Atlantic right whales are detected and confirmed clear of the exclusion zone, and that, if a right whale were detected in the exclusion zone during nighttime hours and the survey is shut down, developers should be required to wait until daylight hours for ramp-up to commence.

    NMFS Response: We acknowledge the limitations inherent in detection of marine mammals at night. However, similar to the discussion above regarding time and area closures, restricting the ability of the applicant to ramp-up surveys only during daylight hours would have the potential to result in lengthy shutdowns of the survey equipment, which could result in the applicant failing to collect the data they have determined is necessary, which could result in the need to conduct additional surveys the following year. This would result in significantly increased costs incurred by the applicant. Thus the restriction suggested by the commenters would not be practicable for the applicant to implement. In addition, as described above, potential impacts to marine mammals from the survey activities would be limited to short-term behavioral responses. Restricting surveys in the manner suggested by the commenters may reduce marine mammal exposures by some degree in the short term, but would not result in any significant reduction in either intensity or duration of noise exposure. No injury is expected to result even in the absence of mitigation, given the very small estimated Level A harassment zones. In the event that NMFS imposed the restriction suggested by the commenters, potentially resulting in a second survey season of surveys required for the applicant, vessels would be on the water introducing noise into the marine environment for a significantly extended period of time. Therefore, in addition to practicability concerns for the applicant, the restrictions recommended by the commenters could result in the surveys spending increased time on the water, which may result in greater overall exposure to sound for marine mammals; thus the commenters have failed to demonstrate that such a requirement would even result in a net benefit for affected marine mammals. Therefore, in consideration of potential effectiveness of the recommended measure and its practicability for the applicant, NMFS does not believe that restricting survey start-ups to daylight hours is warranted in this case.

    However, in recognition of the concerns raised by the commenters, we have added a mitigation requirement to the IHA that shutdown of geophysical survey equipment is required upon confirmed passive acoustic monitoring (PAM) detection of a North Atlantic right whale at night, even in the absence of visual confirmation, except in cases where the acoustic detection can be localized and the right whale can be confirmed as being beyond the 500 m exclusion zone (EZ); equipment may be re-started no sooner than 30 minutes after the last confirmed acoustic detection.

    Comment 7: The NGOs recommended that NMFS require a 500 m EZ for marine mammals and sea turtles (with the exception of dolphins that voluntarily approach the vessel). Additionally, the NGOs recommended that protected species observers (PSOs) monitor to an extended 1,000 m EZ for North Atlantic right whales.

    NMFS Response: Regarding the recommendation for a 1,000 m EZ specifically for North Atlantic right whales, we have determined that the 500 m EZ, as required in the IHA, is sufficiently protective. We note that mitigation measures also require that PSOs monitor to the extent of the Level B zone (in this case, 1,160 m), or as far as possible if the extent of the level B zone is not visible, thus PSOs would be aware of any right whales within 1,000 m of the vessel and would be able to call for shutdown if a right whale were approaching the 500 m EZ. Regarding the commenters' recommendation to require a 500 m EZ for all marine mammals (except dolphins that approach the vessel) we have determined the EZs as currently required in the IHA (described in Mitigation Measures, below) are sufficient to ensure the least practicable adverse impact on species or stocks and their habitat. The EZs would prevent all potential instances of marine mammal injury (though in this instance, injury would not be an expected outcome even in the absence of mitigation due to very small predicted isopleths corresponding to the Level A harassment threshold (Table 4) and would further prevent some instances of behavioral harassment, as well as limiting the intensity and/or duration of behavioral harassment that does occur. As NMFS has determined the EZs currently required in the IHA to be sufficiently protective, we do not think expanded EZs, beyond what is required in the IHA, are warranted. With respect to EZs for sea turtles, we do not have the statutory authority under the MMPA to require mitigation measures specific to sea turtles.

    Comment 8: The NGOs recommended that NMFS should not allow modifications of the radii of the EZs based on sound source validation data, except in the event that sound source validation data support the extension of the EZs.

    NMFS Response: Our analyses, including the analysis of the mitigation measures that would ensure the least practicable adverse impact on species or stocks and their habitat, are based on the best available information. At the time of Statoil's submission of the IHA application, we determined the data presented in Crocker and Fratantonio (2016) represented the best available information on sound levels associated with high-resolution geophysical (HRG) survey equipment planned for use by Statoil. If new information on sound levels associated with HRG survey used by Statoil becomes available, including data from field verification studies, we will determine at that time whether that new information represents the best available information, and if so, whether that information warrants revision of marine mammal EZs. The commenters requested that any modification of the EZs be limited to potential expansion of the EZs, but provide no substantive rationale for why a zone should not be modified to be contracted if sound source verification indicates that such a modification is warranted; therefore there is no basis to think that such a limitation would satisfy the standard that mitigation measures must ensure the least practicable adverse impact on species or stocks and their habitat.

    Comment 9: The NGOs recommended that a combination of visual monitoring by PSOs and PAM should be required 24 hours per day, and that a combination of PAM and continual visual monitoring using night vision and infra-red should be required at night. The NGOs further recommended that at least two PSOs should be required to be on shift at any one time during daylight hours.

    NMFS Response: Per the terms of BOEM's lease stipulations, the applicant is required to implement marine mammal monitoring, including having four visual PSOs and two PAM operators available, with at least one visual PSO on duty at all times and at least one PAM operator on duty at night. We have reviewed these minimum requirements and find that they are sufficient to meet the MMPA standard that mitigation measures must ensure the least practicable adverse impact on species or stocks and their habitat. We have determined the requirements for visual and acoustic monitoring are sufficient to ensure the EZs and Watch Zone are adequately monitored. While PAM can be beneficial to supplement visual monitoring, especially in low-visibility conditions, its utility is limited in that it is only beneficial when animals are vocalizing. When potential benefits of a 24 hour PAM requirement are considered in concert with the potential increased costs on the part of the applicant that would result from such a requirement, we determined a requirement for 24 hour PAM operation is not warranted in this case.

    Comment 10: The NGOs recommended that NMFS incentivize offshore wind developers to partner with scientists to collect data that would increase the understanding of the effectiveness of night vision and infra-red technologies in the New York Bight and broader region, with a view towards greater reliance on these technologies to commence surveys during nighttime hours in the future.

    NMFS Response: NMFS agrees with the NGOs that improved data on relative effectiveness of night vision and infra-red technologies would be beneficial and could help to inform future efforts at detection of marine mammals during nighttime activities. We have no authority to incentivize such partnerships under the MMPA. However, we will encourage coordination and communication between offshore wind developers and researchers on effectiveness of night vision and infra-red technologies. In recognition of the commenters' concerns, we have also added a requirement that the final report submitted to NMFS must include an assessment of the effectiveness of night vision equipment used during nighttime surveys, including comparisons of relative effectiveness among the different types of night vision equipment used.

    Comment 11: The NGOs recommended that NMFS require a 10 knot speed restriction on all project-related vessels transiting to/from the survey area from March 1st through April 30th and that all project vessels operating within the survey area should be required to maintain a speed of 10 knots or less during the entire survey period.

    NMFS Response: NMFS has analyzed the potential for ship strike resulting from Statoil's activity and has determined that the mitigation measures specific to ship strike avoidance are sufficient to avoid the potential for ship strike. These include: A requirement that all vessel operators comply with 10 knot (18.5 kilometer (km)/hr) or less speed restrictions in any Seasonal Management Area (SMA) or Dynamic Management Area (DMA); a requirement that all vessel operators reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, or large assemblages of non-delphinoid cetaceans are observed within 100 m of an underway vessel; a requirement that all survey vessels maintain a separation distance of 500 m or greater from any sighted North Atlantic right whale; a requirement that, if underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots or less until the 500 m minimum separation distance has been established; and a requirement that, if a North Atlantic right whale is sighted in a vessel's path, or within 100 m to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Additional measures to prevent the potential for ship strike are discussed in more detail below (see the Mitigation section). We have determined that the ship strike avoidance measures are sufficient to ensure the least practicable adverse impact on species or stocks and their habitat. We also note that vessel strike during surveys is extremely unlikely based on the low vessel speed; the survey vessel would maintain a speed of approximately 4 knots (7.4 kilometers per hour) while transiting survey lines.

    Comment 12: The NGOs recommended that NMFS account for the potential for indirect ship strike risk resulting from habitat displacement in our analyses.

    NMFS Response: NMFS determined that habitat displacement was not an expected outcome of the specified activity, therefore an analysis of potential impacts to marine mammals from habitat displacement is not warranted in this case.

    Comment 13: The NGOs recommended that NMFS fund analyses of recently collected marine mammal sighting and acoustic data from 2016 and continue to fund and expand surveys and studies to (i) improve our understanding of distribution and habitat use of marine mammals in the New York Bight and the broader mid-Atlantic region, and (ii) enhance the resolution of population genetic structure for humpback, fin, and blue whales. The NGOs also recommended that NMFS support an expert workshop to consider the data referred to in Comment 8, and any new information necessary to inform seasonal restrictions and mitigation measures in time for the November 2018 North Atlantic right whale migration period.

    NMFS Response: We agree with the NGOs that analyses of recently collected sighting and acoustic data, as well as continued marine mammal surveys, are warranted, and we welcome the opportunity to participate in fora where implications of such data for potential mitigation measures would be discussed; however, we have no statutory authority or ability to require funding of such analyses and surveys, nor do we have the ability or authority to fund such a workshop. We note that NMFS is undertaking numerous efforts relative to recovering right whales; these include expert working groups focused on specific aspects of recovery such as ship strike mitigation and entanglement mitigation, including two subgroups under the Atlantic Large Whale Take Reduction Plan which both met within the previous month, with a further full team meeting planned for fall 2018.

    Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of Statoil's IHA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.fisheries.noaa.gov/species-directory).

    Table 1 lists all species with expected potential for occurrence in the survey area and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow the Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR is included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2017 draft SARs (e.g., Hayes et al., 2018). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2017 draft SARs (Hayes et al., 2018).

    Table 1—Marine Mammals Known To Occur in the Survey Area Common name Stock NMFS
  • MMPA
  • and ESA
  • status;
  • strategic
  • (Y/N) 1
  • Stock
  • abundance
  • (CV,Nmin, most recent
  • abundance
  • survey) 2
  • PBR 3 Occurrence and seasonality
  • in the NW
  • Atlantic OCS
  • Toothed whales (Odontoceti) Atlantic white-sided dolphin (Lagenorhynchus acutus) W North Atlantic -; N 48,819 (0.61; 30,403; n/a) 304 rare. Atlantic spotted dolphin (Stenella frontalis) W North Atlantic -; N 44,715 (0.43; 31,610; n/a) 316 rare. Bottlenose dolphin (Tursiops truncatus) W North Atlantic, Offshore -; N 77,532 (0.40; 56,053; 2011) 561 Common year round. Clymene dolphin (Stenella clymene) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Pantropical Spotted dolphin (Stenella attenuata) W North Atlantic -; N 3,333 (0.91; 1,733; n/a) 17 rare. Risso's dolphin (Grampus griseus) W North Atlantic -; N 18,250 (0.46; 12,619; n/a) 126 rare. Short-beaked common dolphin (Delphinus delphis) W North Atlantic -; N 70,184 (0.28; 55,690; 2011) 557 Common year round. Striped dolphin (Stenella coeruleoalba) W North Atlantic -; N 54,807 (0.3; 42,804; n/a) 428 rare. Spinner Dolphin (Stenella longirostris) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. White-beaked dolphin (Lagenorhynchus albirostris) W North Atlantic -; N 2,003 (0.94; 1,023; n/a) 10 rare. Harbor porpoise (Phocoena phocoena) Gulf of Maine/Bay of Fundy -; N 79,833 (0.32; 61,415; 2011) 706 Common year round. Killer whale (Orcinus orca) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. False killer whale (Pseudorca crassidens) W North Atlantic -; Y 442 (1.06; 212; n/a) 2.1 rare. Long-finned pilot whale (Globicephala melas) W North Atlantic -; Y 5,636 (0.63; 3,464; n/a) 35 rare. Short-finned pilot whale (Globicephala macrorhynchus) W North Atlantic -; Y 21,515 (0.37; 15,913; n/a) 159 rare. Sperm whale (Physeter macrocephalus) North Atlantic E; Y 2,288 (0.28; 1,815; n/a) 3.6 Year round in continental shelf and slope waters, occur seasonally to forage. Pygmy sperm whale 4 (Kogia breviceps) W North Atlantic -; N 3,785 (0.47; 2,598; n/a) 26 rare. Dwarf sperm whale 4 (Kogia sima) W North Atlantic -; N 3,785 (0.47; 2,598; n/a) 26 rare. Cuvier's beaked whale (Ziphius cavirostris) W North Atlantic -; N 6,532 (0.32; 5,021; n/a) 50 rare. Blainville's beaked whale 5 (Mesoplodon densirostris) W North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Gervais' beaked whale 5 (Mesoplodon europaeus) W North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. True's beaked whale 5 (Mesoplodon mirus) W North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Sowerby's Beaked Whale 5 (Mesoplodon bidens) W North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Rough-toothed dolphin (Steno bredanensis) W North Atlantic -; N 271 (1.0; 134; 2013) 1.3 rare. Melon-headed whale (Peponocephala electra) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Northern bottlenose whale (Hyperoodon ampullatus) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Pygmy killer whale (Feresa attenuata) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Baleen whales (Mysticeti) Minke whale (Balaenoptera acutorostrata) Canadian East Coast -; N 2,591 (0.81; 1,425; n/a) 162 Year round in continental shelf and slope waters, occur seasonally to forage. Blue whale (Balaenoptera musculus) W North Atlantic E; Y Unknown (unk; 440; n/a) 0.9 Year round in continental shelf and slope waters, occur seasonally to forage. Fin whale (Balaenoptera physalus) W North Atlantic E; Y 1,618 (0.33; 1,234; n/a) 2.5 Year round in continental shelf and slope waters, occur seasonally to forage. Humpback whale (Megaptera novaeangliae) Gulf of Maine -; N 823 (0; 823; n/a) 2.7 Common year round. North Atlantic right whale (Eubalaena glacialis) W North Atlantic E; Y 458 (0; 455; n/a) 1.4 Year round in continental shelf and slope waters, occur seasonally to forage. Sei whale (Balaenoptera borealis) Nova Scotia E; Y 357 (0.52; 236; n/a) 0.5 Year round in continental shelf and slope waters, occur seasonally to forage. Earless seals (Phocidae) Gray seal 6 (Halichoerus grypus) W North Atlantic -; N 27,131 (0.10; 25,908; n/a) 1,554 Unlikely Harbor seal (Phoca vitulina) W North Atlantic -; N 75,834 (0.15; 66,884; 2012) 2,006 Common year round. Hooded seal (Cystophora cristata) W North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Harp seal (Phoca groenlandica) North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2016 Atlantic SARs. 3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 Abundance estimate includes both dwarf and pygmy sperm whales. 5 Abundance estimate includes all species of Mesoplodon in the Atlantic. 6 Abundance estimate applies to U.S. population only, actual abundance is believed to be much larger.

    All species that could potentially occur in the survey area are included in Table 1. However, the temporal and/or spatial occurrence of 26 of the 37 species listed in Table 1 is such that take of these species is not expected to occur, and they are not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area, are known to occur further offshore than the project area, or are considered very unlikely to occur in the project area during the survey due to the species' seasonal occurrence in the area.

    A detailed description of the species likely to be affected by Statoil's survey, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 7655; February 22, 2018); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not repeated here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS' website (www.fisheries.noaa.gov/species-directory) for generalized species accounts.

    Information concerning marine mammal hearing, including marine mammal functional hearing groups, was provided in the Federal Register notice for the proposed IHA (83 FR 7655; February 22, 2018), therefore that information is not repeated here; please refer to that Federal Register notice for this information. For further information about marine mammal functional hearing groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Eleven marine mammal species (nine cetacean and two pinniped (both phocid) species) have the reasonable potential to co-occur with the survey activities (Table 7). Of the cetacean species that may be present, four are classified as low-frequency cetaceans (i.e., North Atlantic right whale, humpback whale, fin whale, and minke whale), four are classified as mid-frequency cetaceans (i.e., sperm whale, bottlenose dolphin, common dolphin and Atlantic white-sided dolphin), and one is classified as a high-frequency cetacean (i.e., harbor porpoise).

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of underwater noise from Statoil's survey activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The Federal Register notice for the proposed IHA (83 FR 7655; February 22, 2018) included a discussion of the effects of anthropogenic noise on marine mammals and their habitat, therefore that information is not repeated here; please refer to that Federal Register notice for that information. No instances of hearing threshold shifts, injury, serious injury, or mortality are expected as a result of the planned activities.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorized through this IHA, which informs both NMFS' consideration of “small numbers” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes are by Level B harassment, as use of the survey equipment has the potential to result in disruption of behavioral patterns for individual marine mammals. NMFS has determined take by Level A harassment is not an expected outcome of the activity and thus we do not authorize the take of any marine mammals by Level A harassment. This is discussed in greater detail below. As described previously, no mortality or serious injury is anticipated or authorized for this activity. Below we describe how the take is estimated for this project.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.

    Acoustic Thresholds

    NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B Harassment—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the sound source (e.g., frequency, predictability, duty cycle); the environment (e.g., bathymetry); and the receiving animals (hearing, motivation, experience, demography, behavioral context); and therefore can be difficult to predict (Southall et al., 2007, Ellison et al. 2011). NMFS uses a generalized acoustic threshold based on received level to estimate the onset of Level B (behavioral) harassment. NMFS predicts that marine mammals may be behaviorally harassed when exposed to underwater anthropogenic noise above received levels 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., high resolution geophysical (HRG) equipment) or intermittent (e.g., scientific sonar) sources. Statoil's activity includes the use of impulsive sources. Therefore, the 160 dB re 1 μPa (rms) criteria is applicable for analysis of Level B harassment.

    Level A harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The Technical Guidance identifies the received levels, or thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity for all underwater anthropogenic sound sources, reflects the best available science, and better predicts the potential for auditory injury than does NMFS' historical criteria.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. As described above, Statoil's activity includes the use of intermittent and impulsive sources.

    Table 2—Thresholds Identifying the Onset of Permanent Threshold Shift in Marine Mammals Hearing group PTS onset thresholds Impulsive * Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E, LF,24h: 183 dB L E, LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB; L E, MF,24h: 185 dB L E, MF,24h: 198 dB. High-Frequency (HF) Cetaceans L pk,flat: 202 dB; L E, HF,24h: 155 dB L E, HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) L pk,flat: 218 dB; L E, PW,24h: 185 dB L E, PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) L pk,flat: 232 dB; L E, OW,24h: 203 dB L E, OW,24h: 219 dB. Note: *Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into estimating the area ensonified above the acoustic thresholds.

    The survey would entail the use of HRG survey equipment. The distance to the isopleth corresponding to the threshold for Level B harassment was calculated for all HRG survey equipment with the potential to result in harassment of marine mammals (i.e., the USBL and the sub-bottom profilers) based on source characteristics as described in Crocker and Fratantonio (2016) using the practical transmission loss (TL) equation: TL = 15log10. Of the survey equipment planned for use that has the potential to result in harassment of marine mammals, acoustic modeling indicated the Sig ELC 820 Sparker (a type of sub-bottom profiler) would be expected to produce sound that would propagate the furthest in the water (Table 3); therefore, for the purposes of the take calculation, it was assumed the Sig ELC 820 Sparker would be active during the entirety of the survey. Thus the distance to the isopleth corresponding to the threshold for Level B harassment for the Sig ELC 820 Sparker (1,166 m; Table 3) was used as the basis of the Level B take calculation for all marine mammals.

    Table 3—Predicted Radial Distances (m) From HRG Sources to Isopleths Corresponding to Level B Harassment Threshold HRG system Survey equipment Modeled distance
  • to threshold
  • (160 dB re 1 μPa)
  • Subsea Positioning/USBL Sonardyne Ranger 2 USBL 74 Shallow penetration sub-bottom profiler EdgeTech 512i 18 Medium penetration sub-bottom profiler SIG ELC 820 Sparker 1,166

    Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 4), were also calculated by Statoil. The updated acoustic thresholds for impulsive sounds (such as HRG survey equipment) contained in the Technical Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds using both cumulative sound exposure level (SELcum) and peak sound pressure level metrics. As dual metrics, NMFS considers onset of PTS (Level A harassment) to have occurred when either one of the two metrics is exceeded (i.e., metric resulting in the largest isopleth). The SELcum metric considers both level and duration of exposure, as well as auditory weighting functions by marine mammal hearing group. In recognition of the fact that calculating Level A harassment ensonified areas could be more technically challenging to predict due to the duration component and the use of weighting functions in the new SELcum thresholds, NMFS developed an optional User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to facilitate the estimation of take numbers. Statoil used the NMFS optional User Spreadsheet to calculate distances to Level A harassment isopleths based on SELcum (shown in Appendix A of the IHA application) and used the practical spreading loss model (similar to the method used to calculate Level B isopleths as described above) to calculate distances to Level A harassment isopleths based on peak pressure. Modeled distances to isopleths corresponding to Level A harassment thresholds for the Sig ELC 820 Sparker are shown in Table 4.

    Table 4—Modeled Radial Distances (m) to Isopleths Corresponding to Level A Harassment Thresholds Functional hearing group
  • (Level A harassment
  • thresholds)
  • SELcum1 Peak
  • SPLflat
  • Low frequency cetaceans (L pk,flat: 219 dB; L E, LF,24h: 183 dB) 9.8 n/a Mid frequency cetaceans (L pk,flat: 230 dB; L E, MF,24h: 185 dB) 0 n/a High frequency cetaceans (L pk,flat: 202 dB; L E, HF,24h: 155 dB) 3.6 7.3 Phocid Pinnipeds (Underwater) (L pk,flat: 218 dB; L E, HF,24h: 185 dB) 2.6 n/a 1 Distances to isopleths based on SELcum were calculated in the NMFS optional User Spreadsheet based on the following inputs: Source level of 206 dB rms, source velocity of 2.06 meters per second, pulse duration of 0.008 seconds, repetition rate of 0.25 seconds, and weighting factor adjustment of 1.4 kHz. Isopleths shown for SELcum are different than those shown in the IHA application as one of the inputs used by the applicant was incorrect which resulted in outputs that were not accurate: The applicant entered an incorrect repetition rate of 4 seconds rather than the correct repetition rate of 0.25 seconds. NMFS therefore used the NMFS optional User Spreadsheet to calculate isopleths for SELcum for the Sig ELC 820 Sparker using the correct repetition rate.

    In this case, due to the very small estimated distances to Level A harassment thresholds for all marine mammal functional hearing groups, based on both SELcum and peak SPL (Table 4), and in consideration of the mitigation measures, including marine mammal exclusion zones that greatly exceed the largest modeled isopleths to Level A harassment thresholds (see the Mitigation section for more detail) NMFS determined that the likelihood of Level A take of marine mammals occurring as a result of the survey is so low as to be discountable.

    We note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree. The acoustic sources planned for use in Statoil's survey do not radiate sound equally in all directions but were designed instead to focus acoustic energy directly toward the sea floor. Therefore, the acoustic energy produced by these sources is not received equally in all directions around the source but is instead concentrated along some narrower plane depending on the beamwidth of the source. However, the calculated distances to isopleths do not account for this directionality of the sound source and are therefore conservative. For mobile sources, such as Statoil's planned survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    The best available scientific information was considered in conducting marine mammal exposure estimates (the basis for estimating take). For cetacean species, densities calculated by Roberts et al. (2016) were used. The density data presented by Roberts et al. (2016) incorporates aerial and shipboard line-transect survey data from NMFS and from other organizations collected over the period 1992-2014. Roberts et al. (2016) modeled density from 8 physiographic and 16 dynamic oceanographic and biological covariates, and controlled for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. In general, NMFS considers the models produced by Roberts et al. (2016) to be the best available source of data regarding cetacean density in the Atlantic Ocean. More information, including the model results and supplementary information for each model, is available online at: seamap.env.duke.edu/models/Duke-EC-GOM-2015/.

    For the purposes of the take calculations, density data from Roberts et al. (2016) were mapped within the boundary of the survey area for each survey segment (i.e., the Lease Area survey segment and the cable route area survey segment; See Figure 1 in the IHA application) using a geographic information system. Monthly density data for all cetacean species potentially taken by the planned survey was available via Roberts et al. (2016). Monthly mean density within the survey area, as provided in Roberts et al. (2016), were averaged by season (i.e., Winter (December, January, February), Spring (March, April, May), Summer (June, July, August), Fall (September, October, November)) to provide seasonal density estimates. For the Lease Area survey segment, the highest average seasonal density as reported by Roberts et al. (2016) was used based on the planned survey dates of March through July. For the cable route area survey segment, the average spring seasonal densities within the maximum survey area were used, given the planned start date and duration of the survey within the cable route area.

    Systematic, offshore, at-sea survey data for pinnipeds are more limited than those for cetaceans. The best available information concerning pinniped densities in the planned survey area is the U.S. Navy's Navy Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These density models utilized vessel-based and aerial survey data collected by NMFS from 1998-2005 during broad-scale abundance studies. Modeling methodology is detailed in DoN (2007). The NODEs density estimates do not include density data for gray seals. For the purposes of this IHA, gray seal density in the project area was assumed to be the same as harbor seal density. Mid-Atlantic OPAREA Density Estimates (DoN, 2007) as reported for the spring and summer season were used to estimate pinniped densities for the purposes of the take calculations.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day of the survey is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and estimated trackline distance traveled per day by the survey vessel. The estimated daily vessel track line distance was determined using the estimated average speed of the vessel (4 knot) multiplied by 24 (to account for the 24 hour operational period of the survey). Using the maximum distance to the Level B harassment threshold of 1,166 m (Table 3) and estimated daily track line distance of approximately 177.8 km (110.5 mi), it was estimated that an area of 418.9 km2 (161.7 mi2) per day would be ensonified to the Level B harassment threshold.

    The number of marine mammals expected to be incidentally taken per day is then calculated by estimating the number of each species predicted to occur within the daily ensonified area, using estimated marine mammal densities as described above. In this case, estimated marine mammal density values varied between the Lease Area and cable route corridor survey areas, therefore the estimated number of each species taken per survey day was calculated separately for the Lease Area survey area and cable route corridor survey area. Estimated numbers of each species taken per day are then multiplied by the number of survey days to generate an estimate of the total number of each species expected to be taken over the duration of the survey. In this case, as the estimated number of each species taken per day varied depending on survey area (Lease Area and cable route corridor), the number of each species taken per day in each respective survey area was multiplied by the number of survey days anticipated in each survey area (i.e., 123 survey days in the Lease Area portion of the survey and 19 survey days in the cable route corridor portion of the survey) to get a total number of takes per species in each respective survey area. Total take numbers for each respective survey area (Lease Area and cable route corridor) were then rounded. These numbers were then summed to get a total number of each species expected to be taken over the duration of all surveys (Table 7).

    As described above, due to the very small estimated distances to Level A harassment thresholds (based on both SELcum and peak SPL; Table 4), and in consideration of the mitigation measures, the likelihood of the survey resulting in take in the form of Level A harassment is considered so low as to be discountable, therefore we do not authorize take of any marine mammals by Level A harassment. Authorized take numbers are shown in Tables 5, 6, and 7. Take numbers authorized (Tables 5, 6, and 7) are slightly different than those requested in the IHA application (Table 7 in the IHA application) due to slight differences in take calculation methods.

    Table 5—Numbers of Potential Incidental Take of Marine Mammals Authorized in Cable Route Corridor Portion of Survey Species Density
  • (#/1,000 km2)
  • Level A
  • takes
  • Level B
  • takes
  • Total
  • takes
  • North Atlantic right whale 0.04 0 3 3 Humpback whale 0.02 0 2 2 Fin whale 0.1 0 8 8 Sperm whale 0.01 0 1 1 Minke whale 0.03 0 2 2 Bottlenose dolphin 9.65 0 768 768 Short-beaked common dolphin 1.42 0 113 113 Atlantic white-sided dolphin 0.32 0 25 25 Harbor porpoise 1.91 0 152 152 Harbor seal 4.87 0 388 388 Gray seal 4.87 0 388 388
    Table 6—Numbers of Potential Incidental Take of Marine Mammals Authorized in Lease Area Portion of Survey Species Density
  • (#/1,000 km2)
  • Level A
  • takes
  • Level B
  • takes
  • Total
  • takes
  • North Atlantic right whale 0.03 0 15 15 Humpback whale 0.04 0 21 21 Fin whale 0.17 0 88 88 Sperm whale 0.01 0 5 5 Minke whale 0.07 0 36 36 Bottlenose dolphin 1.53 0 788 788 Short-beaked common dolphin 3.06 0 1,577 1,577 Atlantic white-sided dolphin 0.78 0 402 402 Harbor porpoise 4.09 0 2,107 2,107 Harbor seal 4.87 0 2,509 2,509 Gray seal 4.87 0 2,509 2,509
    Table 7—Total Numbers of Potential Incidental Take of Marine Mammals Authorized and Takes as a Percentage of Population Species Level A
  • takes
  • Level B
  • takes
  • Total
  • takes
  • Total takes
  • as a
  • percentage of
  • population
  • North Atlantic right whale 0 18 18 4.1 Humpback whale 0 23 23 2.8 Fin whale 0 96 96 5.9 Sperm whale 0 6 6 0.3 Minke whale 0 38 38 1.5 Bottlenose dolphin 0 1,556 1,556 2.0 Short-beaked common dolphin 0 1,690 1,690 2.4 Atlantic white-sided dolphin 0 427 427 0.9 Harbor porpoise 0 2,259 2,259 2.8 Harbor seal 0 2,897 2,897 3.8 Gray seal 0 2,897 2,897 0.6
    Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) and the likelihood of effective implementation (probability implemented as planned), and;

    (2) The practicability of the measures for applicant implementation, which may consider such things as relative cost and impact on operations.

    Mitigation Measures

    With NMFS' input during the application process, and as per the BOEM Lease, Statoil proposed the following mitigation measures during their site characterization surveys.

    Marine Mammal Exclusion and Watch Zones

    As required in the BOEM lease, marine mammal exclusion zones (EZ) will be established around the HRG survey equipment and monitored by protected species observers (PSO) during HRG surveys as follows:

    • 50 m EZ for pinnipeds and delphinids (except harbor porpoises);

    • 100 m EZ for large whales including sperm whales and mysticetes (except North Atlantic right whales) and harbor porpoises;

    • 500 m EZ for North Atlantic right whales.

    In addition, PSOs will visually monitor for all marine mammals to the extent of a 500 m “Watch Zone” or as far as possible if the extent of the Watch Zone is not fully visible.

    Statoil intends to submit a sound source verification report showing sound levels associated with HRG survey equipment. If results of the sound source verification report indicate that actual distances to isopleths corresponding to harassment thresholds are larger than the EZs and/or Level B monitoring zones, NMFS may modify the zone(s) accordingly. If results of source verification indicate that actual distances to isopleths corresponding to harassment thresholds are less than the EZs and/or Level B monitoring zones, Statoil has indicated an intention to request modification of the zone(s), as appropriate. NMFS would review any such request and may modify the zone(s) depending on review of the report on source verification. Any such modification may be superseded by EZs required by BOEM.

    Visual Monitoring

    As per the BOEM lease, visual and acoustic monitoring of the established exclusion and monitoring zones will be performed by qualified and NMFS-approved PSOs. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During surveys conducted at night, night-vision equipment and infrared technology will be available for PSO use, and PAM (described below) will be used.

    Pre-Clearance of the Exclusion Zone

    For all HRG survey activities, Statoil will implement a 30-minute pre-clearance period of the relevant EZs prior to the initiation of HRG survey equipment (as required by BOEM). During this period the EZs will be monitored by PSOs, using the appropriate visual technology for a 30-minute period. HRG survey equipment will not be initiated if marine mammals are observed within or approaching the relevant EZs during this pre-clearance period. If a marine mammal is observed within or approaching the relevant EZ during the pre-clearance period, ramp-up will not begin until the animal(s) has been observed exiting the EZ or until an additional time period has elapsed with no further sighting of the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species). This pre-clearance requirement will include small delphinoids that approach the vessel (e.g., bow ride). PSOs will also continue to monitor the zone for 30 minutes after survey equipment is shut down or survey activity has concluded.

    Passive Acoustic Monitoring

    As required in the BOEM lease, PAM will be required during HRG surveys conducted at night. In addition, PAM systems would be employed during daylight hours as needed to support system calibration and PSO and PAM team coordination, as well as in support of efforts to evaluate the effectiveness of the various mitigation techniques (i.e., visual observations during day and night, compared to the PAM detections/operations). PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. BOEM's lease stipulations require the use of PAM during nighttime operations. However, these requirements do not require that any mitigation action be taken upon acoustic detection of marine mammals. Given the range of species that could occur in the survey area, the PAM system will consist of an array of hydrophones with both broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 75 Hz to 30 kHz). The PAM operator would monitor the hydrophone signals in real time both aurally (using headphones) and visually (via the monitor screen displays). The PAM operator would communicate detections to the Lead PSO on duty who will ensure the implementation of the appropriate mitigation procedures. A mitigation and monitoring communications flow diagram has been included as Appendix C of the IHA application.

    Ramp-Up of Survey Equipment

    As required in the BOEM lease, where technically feasible, a ramp-up procedure will be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of HRG survey activities. The ramp-up procedure will be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment use at full energy. A ramp-up will begin with the power of the smallest acoustic equipment at its lowest practical power output appropriate for the survey. When technically feasible the power will then be gradually turned up and other acoustic sources added in a way such that the source level would increase gradually.

    Shutdown Procedures

    As required in the BOEM lease, if a marine mammal is observed within or approaching the relevant EZ (as described above) an immediate shutdown of the survey equipment is required. Subsequent restart of the survey equipment may only occur after the animal(s) has either been observed exiting the relevant EZ or until an additional time period has elapsed with no further sighting of the animal (e.g.,15 minutes for delphinoid cetaceans and pinnipeds and 30 minutes for all other species). HRG survey equipment may continue operating if small delphinids voluntarily approach the vessel (e.g., to bow ride) when HRG survey equipment is operating.

    As required in the BOEM lease, if the HRG equipment shuts down for reasons other than mitigation (i.e., mechanical or electronic failure) resulting in the cessation of the survey equipment for a period greater than 20 minutes, a 30 minute pre-clearance period (as described above) will precede the restart of the HRG survey equipment. If the pause is less than 20 minutes, the equipment may be restarted as soon as practicable at its full operational level only if visual surveys were continued diligently throughout the silent period and the EZs remained clear of marine mammals during that entire period. If visual surveys were not continued diligently during the pause of 20 minutes or less, a 30-minute pre-clearance period (as described above) will precede the re-start of the HRG survey equipment. Following a shutdown, HRG survey equipment may be restarted following pre-clearance of the zones as described above.

    Vessel Strike Avoidance

    Statoil will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds by slowing down or stopping the vessel to avoid striking marine mammals. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammal sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures will include, but are not limited to, the following, as required in the BOEM lease, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

    • All vessel operators and crew will maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop their vessel to avoid striking these protected species;

    • All vessel operators will comply with 10 knot (18.5 km/hr) or less speed restrictions in any SMA per NOAA guidance. This applies to all vessels operating at any time of year;

    • All vessel operators will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, or large assemblages of non-delphinoid cetaceans are observed near (within 100 m (330 ft)) an underway vessel;

    • All survey vessels will maintain a separation distance of 500 m (1,640 ft) or greater from any sighted North Atlantic right whale;

    • If underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1,640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;

    • All vessels will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway will remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway will reduce vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;

    • All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped; and

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.

    Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey event.

    Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult NMFS' North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. However, the survey activities will occur outside of the SMA located off the coasts of New Jersey and New York. Members of the monitoring team will monitor the NMFS North Atlantic right whale reporting systems for the establishment of a Dynamic Management Area (DMA). If NMFS should establish a DMA in the survey area, within 24 hours of the establishment of the DMA Statoil will work with NMFS to shut down and/or alter the survey activities to avoid the DMA.

    The mitigation measures are designed to avoid the already low potential for injury in addition to some Level B harassment, and to minimize the potential for vessel strikes. There are no known marine mammal feeding areas, rookeries, or mating grounds in the survey area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat (or both). The survey will occur in an area that has been identified as a biologically important area for migration for North Atlantic right whales. However, given the small spatial extent of the survey area relative to the substantially larger spatial extent of the right whale migratory area, the survey is not expected to appreciably reduce migratory habitat nor to negatively impact the migration of North Atlantic right whales, thus mitigation to address the survey's occurrence in North Atlantic right whale migratory habitat is not warranted. Further, we believe the mitigation measures are practicable for the applicant to implement.

    Based on our evaluation of the applicant's proposed measures, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the survey area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Monitoring Measures

    As described above, visual monitoring of the EZs and monitoring zone will be performed by qualified and NMFS-approved PSOs. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys and completion of a PSO and/or PAM training program, as appropriate. As proposed by the applicant and required by BOEM, an observer team comprising a minimum of four NMFS-approved PSOs and a minimum of two certified PAM operator(s), operating in shifts, will be employed by Statoil during the surveys. PSOs and PAM operators will work in shifts such that no one monitor will work more than 4 consecutive hours without a 2 hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs will rotate in shifts of one on and three off, while during nighttime operations PSOs will work in pairs. The PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. Each PSO will monitor 360 degrees of the field of vision.

    Also as described above, PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During night operations, PAM, night-vision equipment, and infrared technology will be used to increase the ability to detect marine mammals. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting. Observations will take place from the highest available vantage point on the survey vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence.

    Data on all PAM/PSO observations will be recorded based on standard PSO collection requirements. This will include dates and locations of survey operations; time of observation, location and weather; details of the sightings (e.g., species, age classification [if known], numbers, behavior); and details of any observed “taking” (behavioral disturbances). The data sheet will be provided to NMFS for review and approval prior to the start of survey activities. In addition, prior to initiation of survey work, all crew members will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the survey supervisors and crews, the PSOs, and Statoil. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures.

    Acoustic Field Verification— As described above, field verification of sound levels associated with survey equipment will be conducted. Results of the field verification may be used to request modification of the EZs and monitoring zones. The details of the applicant's plan for field verification of sound levels are provided as Appendix B to the IHA application.

    Reporting Measures

    Statoil will provide the following reports as necessary during survey activities:

    • The Applicant will contact NMFS within 24 hours of the commencement of survey activities and again within 24 hours of the completion of the activity.

    Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified HRG and geotechnical activities lead to an injury of a marine mammal (Level A harassment) or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Statoil would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NMFS Greater Atlantic Stranding Coordinator. The report would include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities would not resume until NMFS is able to review the circumstances of the event. NMFS would work with Statoil to minimize reoccurrence of such an event in the future. Statoil would not resume activities until notified by NMFS.

    In the event that Statoil discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition), Statoil would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NMFS Greater Atlantic Stranding Coordinator. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Statoil to determine if modifications in the activities are appropriate.

    In the event that Statoil discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Statoil would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, and the NMFS Greater Atlantic Regional Stranding Coordinator, within 24 hours of the discovery. Statoil would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Statoil may continue its operations under such a case.

    • Within 90 days after completion of survey activities, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals estimated to have been taken during survey activities, and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, our analysis applies to all the species listed in Table 7, given that NMFS expects the anticipated effects of the planned survey to be similar in nature.

    NMFS does not anticipate that serious injury or mortality would occur as a result of Statoil's survey, even in the absence of mitigation. Thus the authorization does not authorize any serious injury or mortality. As discussed in the Potential Effects section, non-auditory physical effects and vessel strike are not expected to occur.

    We expect that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity and with no lasting biological consequences (e.g., Southall et al., 2007).

    Potential impacts to marine mammal habitat were discussed previously in the Federal Register notice for the proposed IHA (83 FR 7655; February 22, 2018). Marine mammal habitat may be impacted by elevated sound levels, but these impacts would be temporary. In addition to being temporary and short in overall duration, the acoustic footprint of the planned survey is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted, as no areas of biological significance for marine mammal feeding are known to exist in the survey area. Prey species are mobile and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal feeding habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. In addition, there are no rookeries or mating or calving areas known to be biologically important to marine mammals within the survey area. The survey area is within a biologically important migratory area for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LaBrecque, et al., 2015). Off the coast of New York, this biologically important migratory area extends from the coast to the shelf break. Due to the fact that that the planned survey is temporary and short in overall duration, and the fact that the spatial acoustic footprint of the planned survey is very small relative to the spatial extent of the available migratory habitat in the area, right whale migration is not expected to be impacted by the planned survey.

    The mitigation measures are expected to reduce the number and/or severity of takes by (1) giving animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy; (2) preventing animals from being exposed to sound levels that may otherwise result in injury. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit to and within the survey area.

    NMFS concludes that exposures to marine mammal species and stocks due to Statoil's survey will result in only short-term (temporary and short in duration) effects to individuals exposed. Marine mammals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the take estimates to impact annual rates of recruitment or survival.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No mortality, serious injury, or Level A harassment is anticipated or authorized;

    • The anticipated impacts of the activity on marine mammals would be temporary behavioral changes due to avoidance of the area around the survey vessel;

    • The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the survey to avoid exposure to sounds from the activity;

    • The project area does not contain areas of significance for feeding, mating or calving;

    • Effects on species that serve as prey species for marine mammals from the survey are not expected;

    • The mitigation measures, including visual and acoustic monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    The numbers of marine mammals authorized to be taken, for all species and stocks, would be considered small relative to the relevant stocks or populations (less than 6 percent of each species and stock). See Table 7. Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS Greater Atlantic Regional Fisheries Office (GARFO), whenever we authorize take for endangered or threatened species.

    The NMFS Office of Protected Resources is authorizing the incidental take of three species of marine mammals which are listed under the ESA: The North Atlantic right, fin, and sperm whale. BOEM consulted with NMFS GARFO under section 7 of the ESA on commercial wind lease issuance and site assessment activities on the Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. NMFS GARFO issued a Biological Opinion concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of the North Atlantic right, fin, and sperm whale. The Biological Opinion can be found online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Upon request from the NMFS Office of Protected Resources, NMFS GARFO has issued an amended incidental take statement associated with this Biological Opinion to include the takes of the ESA-listed marine mammal species authorized through this IHA.

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    Accordingly, NMFS prepared an Environmental Assessment (EA) and analyzed the potential impacts to marine mammals that would result from the project. A Finding of No Significant Impact (FONSI) was signed on April 25, 2018. A copy of the EA and FONSI is available on the internet at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

    Authorization

    NMFS has issued an IHA to Statoil for conducting marine site characterization surveys offshore of New York and along potential submarine cable routes for a period of one year, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: April 30, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09367 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG199 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, May 23, 2018 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Hotel Providence, 139 Mathewson Street, Providence, RI 02903 Phone: (401) 861-8000.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Scallop Advisory Panel will provide research recommendations for the 2018/2019 Scallop Research Set-Aside (RSA) federal funding announcement. They also plan to review progress on 2018 work priorities, focusing on (1) standard default measures; (2) monitoring and catch accounting. Progress on other work items may be discussed, as well as the initiation of appropriate vehicles (Specifications package, Framework, Amendment) to complete work items. The panel will also receive an update on Scallop Committee tasking re: Achieved at-sea monitoring coverage levels. Other business may be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 27, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09343 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: West Coast Region Vessel Identification Requirements.

    OMB Control Number: 0648-0355.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 1,203.

    Average Hours per Response: 15 minutes.

    Burden Hours: 180.

    Needs and Uses: This request is for extension of a currently approved information collection.

    The success of fisheries management programs depends significantly on regulatory compliance. The vessel identification requirement is essential to facilitate enforcement. The ability to link fishing (or other activity) to the vessel owner or operator is crucial to enforcement of regulations issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. A vessel's official number is required to be displayed on the port and starboard sides of the deckhouse or hull, and on a weather deck. It identifies each vessel and should be visible at distances at sea and in the air. Law enforcement personnel rely on vessel marking information to assure compliance with fisheries management regulations. Vessels that qualify for particular fisheries are also readily identified, and this allows for more cost-effective enforcement. Cooperating fishermen also use the vessel numbers to report suspicious or non-compliant activities that they observe in unauthorized areas. The identifying number on fishing vessels is used by the National Marine Fisheries Service (NMFS), the United States Coast Guard (USCG), and other marine agencies in issuing regulations, prosecutions, and other enforcement actions necessary to support sustainable fisheries behaviors as intended in regulations. Regulation-compliant fishermen ultimately benefit from these requirements, as unauthorized and illegal fishing is deterred and more burdensome regulations are avoided.

    Affected Public: Business or other for-profit organization.

    Frequency: Every five years.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: April 30, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-09376 Filed 5-2-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Addition and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Notice; correction.

    SUMMARY:

    The Committee for Purchase From People Who Are Blind or Severely Disabled published a document in the Federal Register of March 30, 2018, concerning a notice of Proposed Additions and Deletions.

    FOR FURTHER INFORMATION CONTACT:

    Amy B. Jensen, Telephone: (703) 603-2132.

    SUPPLEMENTARY INFORMATION:

    Correction

    In the Federal Register of March 30, 2018, in FR Doc. 2018-06492, (83 FR 13739), the Committee would like to correct the notice heading from ” Initial Regulatory Flexibility Act Certification” to “Procurement List; Proposed Additions and Deletions”. In addition, the notice should have contained the following information:

    Procurement List; Proposed Addition and Deletions AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Proposed additions to and deletions from the Procurement List. SUMMARY: The Committee is proposing to add products to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and service previously furnished by such agencies. DATES: Comments must be received on or before: April 29, 2018. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149. FOR FURTHER INFORMATION CONTACT: For further information or to submit comments contact: Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]. SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. Additions

    If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from nonprofit agency employing persons who are blind or have other severe disabilities.

    The following products are proposed for addition to the Procurement List for production by the nonprofit agency listed:

    Products NSN(s)—Product Name(s): 5180-00-NIB-0025—Tool, Kit Refrigeration, Individual. 5180-00-NIB-0026—Tool Kit, Refrigeration, Base. Mandatory for: 100% of the requirements of the U.S. Army. Mandatory Source of Supply: Beyond Vision, Milwaukee, WI. Contracting Activity: U.S. Army Contracting Command—Warren. Distribution: C-List. Deletions

    The following products and service are proposed for deletion from the Procurement List:

    Products NSN(s)—Product Name(s): 7930-01-619-1851—Cleaner, Wheel and Tire, 5 GL 7930-01-619-2632—Bug Remover, Concentrated, Gelling, Vehicle, 5 GL Mandatory Source of Supply: VisionCorps, Lancaster, PA. Contracting Activity: General Services Administration, Fort Worth, TX. Service Service Type: Grounds Maintenance Service. Mandatory for: Naval & Marine Corps Reserve Center, Encino, CA. Mandatory Source of Supply: Lincoln Training Center and Rehabilitation Workshop, South El Monte, CA. Contracting Activity: Dept of the Navy, U.S. Fleet Forces Command. Dated: March 26, 2018. Amy Jensen, Director, Business Operations.
    [FR Doc. 2018-08322 Filed 5-2-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket DARS-2018-0003; OMB Control Number 0704-0397] Submission for OMB Review; Comment Request AGENCY:

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

    ACTION:

    Notice.

    SUMMARY:

    The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by June 4, 2018.

    SUPPLEMENTARY INFORMATION:

    Title, Associated Forms, and OMB Number: Defense Federal Acquisition Regulation Supplement (DFARS), Contract Modifications and related clause at DFARS 252.243-7002; OMB Control Number 0704-0397.

    Affected Public: Businesses or other for-profit entities.

    Respondent's Obligation: Required to obtain or retain benefits.

    Type of Request: Revision of a currently approved collection.

    Reporting Frequency: On occasion.

    Number of Respondents: 88.

    Responses per Respondent: 1.1, approximately.

    Annual Responses: 94.

    Average Burden per Response: 14.2 hours, approximately.

    Annual Burden Hours: 1,334.

    Needs and Uses: The clause at DFARS 252.243-7002, Requests for Equitable Adjustment, is prescribed at DFARS 243.205-71 for use in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items that are estimated to exceed the simplified acquisition threshold. The clause requires contractors to certify that requests for equitable adjustment that exceed the simplified acquisition threshold are made in good faith and that the supporting data are accurate and complete. The clause also requires contractors to fully disclose all facts relevant to the requests for adjustment. DoD contracting officers and auditors use this information to evaluate contractor requests for equitable adjustments to contracts.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    Comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected]. Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection

    You may also submit comments, identified by docket number and title, by the following method:

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

    DoD Clearance Officer: Mr. Frederick C. Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at: WHS/ESD Directives Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.
    [FR Doc. 2018-09358 Filed 5-2-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket Number DARS-2018-0034; OMB Control Number 0704-0231] Submission for OMB Review; Comment Request ACTION:

    30-Day emergency information collection notice.

    SUMMARY:

    The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by June 4, 2018.

    SUPPLEMENTARY INFORMATION:

    Title and OMB Number: Defense Federal Acquisition Regulation Supplement (DFARS) Part 237, Service Contracting, associated DFARS Clauses at DFARS 252.237, DD Form 2062, Record of Preparation and Disposition of Remains (DoD Mortuary Facility), and DD Form 2063, Record of Preparation and Disposition of Remains (Within CONUS); OMB Control Number 0704-0231.

    Type of Request: Emergency.

    Number of Respondents: 2,737.

    Responses per Respondent: 1.5, approximately.

    Annual Responses: 4,019.

    Average Burden per Response: 1.5, approximately.

    Annual Burden Hours: 6,051.

    Needs and Uses: This information collection is used for the following purposes—

    DFARS 237.270 prescribes the use of the provision at DFARS 252.237-7000, Notice of Special Standards, in solicitations for the acquisition of audit services. The provision, at paragraph (c), requires the apparently successful offeror to submit evidence that it is properly licensed in the state or political jurisdiction it operates its professional practice.

    DFARS 237.7003 prescribes the use of the clause 252.237-7011, Preparation History. The clause and the DD Form 2062, Record of Preparation and Disposition of Remains (DoD Mortuary Facility), and the DD Form 2063, Record of Preparation and Disposition of Remains (Within CONUS) are used to verify that the deceased's remains have been properly cared by the mortuary contractor.

    DFARS 237.7603(b) prescribes the use of the provision at 252.237-7024, Notice of Continuation of Essential Contractor Services, in solicitations that require the acquisition of services to support a mission essential function. The provision requires the offeror to submit a written plan demonstrating its capability to continue to provide the contractually required services to support a DoD component's mission essential functions in an emergency. The written plan, submitted concurrently with the proposal or offer, allows the contracting officer to assess the offeror's capability to continue providing contractually required services to support the DoD component's mission essential functions in an emergency.

    DFARS 237.7603(a) prescribes the use of the clause at DFARS 252.237-7023, Continuation of Essential Contractor Services, in solicitations and contracts for services in support of mission essential functions. The clause requires the contractor to maintain and update its written plan as necessary to ensure that it can continue to provide services to support the DoD component's mission essential functions in an emergency. The contracting officer provides approval of the updates to the contractor's plan, to ensure that the contractor can continue to provide services in support of the DoD component's required mission essential functions in an emergency.

    Affected Public: Businesses and other for-profit and not-for profit institutions.

    Reporting Frequency: On occasion.

    Respondent's Obligation: Required to obtain or retain benefits.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.

    You may also submit comments, identified by docket number and title, by the following method:

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

    Instructions: All submissions received must include the agency name, docket number, and title for the Federal Register document. The general policy for comments and other public submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    DoD Clearance Officer: Mr. Frederick C. Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Information Collections Program, WHS/ESD Office of Information Management, 4800 Mark Center Drive, 3rd Floor, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.
    [FR Doc. 2018-09360 Filed 5-2-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Bipartisan Budget Act of 2018—Emergency Assistance to Institutions of Higher Education Program AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Education is issuing a notice inviting pre-applications and applications for the fiscal year (FY) 2018 Emergency Assistance to Institutions of Higher Education Program, Catalog of Federal Domestic Assistance (CFDA) number 84.938T. We will make the pre-applications available upon publication of this notice, and we will make the applications available after review of the pre-applications. We intend to make the applications available 60 days after publication of this notice.

    DATES:

    Applications Available: May 3, 2018.

    Deadline for Transmittal of Pre-Applications: June 4, 2018.

    Deadline for Transmittal of Applications: August 1, 2018.

    ADDRESSES:

    The addresses pertinent to this program—including the addresses for obtaining and submitting an application or pre-application—can be found under SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    Beatriz Ceja, U.S. Department of Education, 400 Maryland Avenue SW, Room 260-04, Washington, DC 20202-6200. Telephone: (202) 453-6239. Email: [email protected].

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

    SUPPLEMENTARY INFORMATION:

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: Under the Emergency Assistance to Institutions of Higher Education Program (EAI Program or EAI), we will award grants to eligible institutions of higher education (IHEs) for emergency assistance in areas directly affected by a covered disaster or emergency: Hurricanes Harvey, Irma, and Maria, and the wildfires in calendar year 2017 for which the President declared a major disaster or emergency under section 401 or 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170 and 5191) (covered disaster or emergency). Under the Bipartisan Budget Act of 2018 (Budget Act) the funds available under the EAI Program are for programs authorized under subpart 3 of part A and part C of title IV and part B of title VII of the Higher Education Act of 1965 (HEA), as amended (20 U.S.C. 1087-51 et seq.; 20 U.S.C. 1138 et seq.), but the funds may be used for activities beyond those supported by those specific programs. In accordance with the Budget Act, we will award grants to eligible IHEs for emergency assistance for any purpose authorized under the HEA. We will prioritize, to the extent possible, projects that support students who are homeless or at risk of becoming homeless as a result of displacement, and IHEs that have sustained extensive damage, by a covered disaster or emergency.

    Exemption From Rulemaking: This program is exempt from the rulemaking requirements in section 437 of the General Education Provisions Act (GEPA) (20 U.S.C. 1232) and section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). Division B, Subdivision 1, Title VIII, “Hurricane Education Recovery” paragraph (6), of Public Law 115-123, the “Bipartisan Budget Act of 2018.” 132 Stat. 98.

    Program Authority: Bipartisan Budget Act of 2018, Public Law 115-123.

    Note:

    The Budget Act provides that funds provided through the EAI Program must be for certain programs established under the HEA (the Federal Supplemental Educational Opportunity Grant, Federal Work-Study, and the Fund for the Improvement of Postsecondary Education programs), but use of the funds is not limited to the activities authorized under those programs. Funds provided through these grants may be used for student financial assistance, faculty and staff salaries, equipment, student supplies and instruments, or any purpose authorized under the HEA.

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474.

    Note:

    The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: $100,000,000.

    Estimated Maximum Award: $20,000,000.

    Estimated Average Size of Awards: $650,000.

    Estimated Number of Awards: 150.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: Grantees must expend funds within 24 months of the award date.

    III. Eligibility Information

    1. Eligible Applicants: Institutions that (1) meet the definition of “institution of higher education” in section 101 or section 102(a)(1) of the HEA (20 U.S.C. 1001 and 1002(a)(1)), and (2) are located in areas directly affected by a covered disaster or emergency.

    Note:

    Receiving a grant for emergency assistance under the EAI Program does not affect the eligibility of the IHE to apply for funding under any other Department program.

    2. a. Cost Sharing or Matching: Any requirements relating to matching, Federal share, reservation of funds, or maintenance of effort under the programs authorized under subpart 3 of part A and part C of title IV and part B of title VII of the HEA, as amended (20 U.S.C. 1087-51 et seq.; 20 U.S.C. 1138 et seq.) that would otherwise apply to EAI grants will not apply.

    b. Supplement-Not-Supplant: This program involves supplement-not-supplant funding requirements. Grantees may not use EAI funds to supplant funds that otherwise would have been used for the same purpose, including funds made available through an insurance policy, the Federal Emergency Management Agency, a State, or a nonprofit relief organization. Grantees may use EAI funds to supplement funds from such sources without exceeding the full amount needed to remedy the effects of the covered disaster or emergency. (See Allocation Criteria.)

    IV. Application and Submission Information

    1. Address To Request Pre-Application or Application Package: Beatriz Ceja, U.S. Department of Education, 400 Maryland Avenue SW, Room 260-04, Washington, DC 20202-6200. Telephone: (202) 453-6239. Email: [email protected].

    To obtain a copy via the internet, use the following address: www2.ed.gov/programs/eai/applicant.html.

    If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.

    Individuals with disabilities can obtain a copy of the pre-application or the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.

    2. Content and Form of Application Submission: Requirements concerning the content of an application are in the application package for this program.

    Pre-Application: IHEs intending to submit an application for funds under this program must first complete and submit a pre-application data information form from which institutional allotments will be calculated. The data form can be downloaded from www.ed.gov/hurricane-help. Complete the form and send it to [email protected] by the date established under Deadline for Transmittal of Pre-Applications. Within 30 days after the Pre-Application deadline, if the IHE is eligible for funding, the Department will either: (1) Calculate the applicant IHE's allotment and email notice of the amount back to the contact person identified by the IHE on the pre-application form, and the eligible IHEs will then have until August 1, 2018 to submit their application and budget information to the Department through Grants.gov; or (2) request additional information from the eligible IHE in order to calculate the applicant IHE's allotment.

    Note:

    We may consider late pre-applications or applications after on-time submissions are evaluated. We may reserve funds to accommodate additional requests because all of the costs of remedying the effects of the covered disasters or emergencies may not yet be known. No funds will be available after September 30, 2022.

    Pre-applications and applications for grants under this program may be submitted in one of two ways:

    a. Email an electronic version of your pre-application or application in PDF (Portable Document Format) to [email protected], or

    b. Mail the original and two copies of your pre-application or application by express mail service through the U.S. Postal Service or through a commercial carrier to Beatriz Ceja, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Room 260-04, Washington, DC 20202-6200.

    The amount of time it can take to email a document will vary depending on a variety of factors, including the size of the document and the speed of your internet connection. Therefore, we strongly recommend that you do not wait until minutes before the deadline to begin emailing your pre-application or application.

    For information on requirements when submitting paper pre-applications or applications, please see the Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    3. Accommodations: Individuals with disabilities who need an accommodation or auxiliary aid in connection with the pre-application or application process should contact the person listed under FOR FURTHER INFORMATION CONTACT. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the pre-application or application process, the individual's pre-application or application remains subject to all other requirements and limitations in this notice.

    4. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. However, under 34 CFR 79.8(a), we waive intergovernmental review in order to make awards in the applicable timeframe.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section above.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number, and you must maintain an active System for Award Management (SAM) registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period. For information on these requirements, please see Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    You may access the electronic grant application for the Emergency Assistance to Institutions of Higher Education Program at www.ed.gov/hurricane-help.

    Note:

    Pre-applications and applications must be emailed or mailed as described above. Neither pre-applications nor applications will be accepted through www.grants.gov.

    V. Application Review Information

    1. Allocation Criteria: The Secretary establishes the following factors as criteria that will be used in allocating these funds:

    (a) Expenses. The expenses incurred by the IHE to remedy the effects of the covered disaster or emergency, including the costs of construction and reconstruction associated with physical damage to the IHE caused by the covered disaster or emergency; and

    (b) Funds received. Any amount of any insurance settlement or other funds received by the IHE, from any source including a Federal or other relief agency, related to remedying the effects of the covered disaster or emergency.

    Additional factors we will consider in making an award are from 34 CFR 75.209(a) and 34 CFR 75.210(a) and include the following.

    (c) Priorities. We will prioritize, to the extent possible, projects that support institutions serving students who are homeless or at risk of becoming homeless as a result of displacement, and institutions that have sustained extensive damage, as a result of a covered disaster or emergency.

    Note:

    Such expenses may include work to identify such students, outreach to such students, food, employment, housing, counseling, emergency grants, transportation, and other services, so long as all such expenses are authorized under the Higher Education Act. Applicants should only include those expenses directed to students who are homeless or at risk of becoming homeless, and applicants should not include expenses directed to a larger population of students, even if those expenses have aided some students who were homeless or at risk of becoming homeless. Applicants should, however, include expenses directed toward individual students who are homeless or at risk of becoming homeless, even if similar aid or services have been made available to other students.

    (d) Need for Project. The Secretary will consider the need for the proposed project. In determining the need for the proposed project, the Secretary will consider the magnitude or severity of the problem to be addressed by the proposed project.

    Note:

    To consider the magnitude or severity of the problem to be addressed, the Secretary will consider the estimated percentage of operations, as a proportion of the IHE's operations prior to the occurrence of the covered disaster or emergency, that remain impaired as a result of the covered disaster or emergency. This percentage should be estimated on the basis of year-over-year spending or budget, using spring 2017 as the baseline. For example, if the IHE's spring 2017 spending was $100 million and the IHE's spring 2018 budget is $75 million, the applicant should report that the IHE is operating at 75 percent.

    An IHE must include information responsive to all four of these criteria in its pre-application.

    Note:

    If, after we review the pre-applications, we determine additional selection criteria are appropriate, we will include those criteria, in addition to the criteria specified in this notice, in the application package.

    2. Review and Selection Process: The Secretary will determine the amount of the individual grants to ensure a fair distribution of funds in accordance with statutory requirements.

    We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    The Secretary may solicit, from any applicant at any time, additional information needed to process an application.

    3. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose specific conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through SAM. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    5. Improper Payments—Additional Reporting: The “Bipartisan Budget Act of 2018” designates this program to be “susceptible to significant improper payments” for purposes of the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note). See Public Law 115-123, the “Bipartisan Budget Act of 2018,” Division B, Subdivision 1, Title XII, § 21208(a), Feb. 9, 2018; 132 Stat. 108. Grantees will be required to undertake significant additional reporting as we implement plans to identify and reduce improper payments. We will provide additional information after we make awards.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we will notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We also may notify you informally.

    If your application is not evaluated or not selected for funding, we will notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Open Licensing Requirements: Unless an exception applies, if you are awarded a grant under this competition, you will be required to openly license to the public grant deliverables created in whole, or in part, with Department grant funds. When the deliverable consists of modifications to pre-existing works, the license extends only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of pre-existing works. Additionally, a grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20(c).

    4. Reporting: (a) If you apply for a grant, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    VII. Other Information

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

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access to 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 PDF. To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

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

    Dated: April 30, 2018. Frank T. Brogan, Principal Deputy Assistant Secretary and Delegated the Duties of the Assistant Secretary, Office of Planning, Evaluation and Policy Development, Delegated the Duties of the Assistant Secretary, Office of Postsecondary Education.
    [FR Doc. 2018-09417 Filed 5-2-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Bipartisan Budget Act of 2018—Defraying Costs of Enrolling Displaced Students Program AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Education is issuing a notice inviting applications for the fiscal year (FY) 2018 Defraying Costs of Enrolling Displaced Students Program, Catalog of Federal Domestic Assistance (CFDA) number 84.938S.

    DATES:

    Applications Available: May 3, 2018.

    Deadline for Transmittal of Applications: June 4, 2018.

    ADDRESSES:

    The addresses pertinent to this program—including the addresses for obtaining and submitting an application—can be found under SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    James Davis, U.S. Department of Education, 400 Maryland Avenue SW, Room 268-02, Washington, DC 20202-6200. Telephone: (202) 453-7814. Email: [email protected].

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

    SUPPLEMENTARY INFORMATION:

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: Under the Defraying Costs of Enrolling Displaced Students Program (DCEDS Program or DCEDS), we will award grants to eligible institutions of higher education (IHEs) to help defray their unexpected expenses associated with enrolling displaced students from IHEs at which operations have been disrupted by a covered disaster or emergency (“qualifying displaced students”), namely Hurricanes Harvey, Irma, and Maria and the wildfires in calendar year 2017 for which the President declared a major disaster or emergency under section 401 or 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170 and 5191) (“covered disaster or emergency”).

    Exemption From Rulemaking: This program is exempt from the rulemaking requirements in section 437 of the General Education Provisions Act (GEPA) (20 U.S.C. 1232) and section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). Division B, Subdivision 1, Title VIII, “Hurricane Education Recovery” paragraph (6), of Public Law 115-123, the “Bipartisan Budget Act of 2018.” 132 Stat. 98.

    Program Authority: Bipartisan Budget Act of 2018, Public Law 115-123.

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 97, 98 and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474.

    Note:

    The open licensing requirement in 2 CFR 3474.20 does not apply for this program.

    Note: The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: $75,000,000.

    Estimated Maximum Award: $2,000,000.

    Estimated Average Size of Awards: $200,000.

    Estimated Number of Awards: 250.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: The Department expects to allocate most of the available funds during FY 2018. We may reserve funds to help defray costs that extend into future fiscal years.

    III. Eligibility Information

    1. Eligible Applicants: Institutions that meet the definition of “institution of higher education” in section 101 or section 102(a)(1) of the Higher Education Act of 1965, as amended (20 U.S.C. 1001 and 1002(a)(1)) if they have had unexpected expenses associated with enrolling displaced students from IHEs at which operations have been disrupted by a covered disaster or emergency.

    2. a. Cost Sharing or Matching: This program does not require cost sharing or matching.

    b. Supplement-Not-Supplant: This program involves supplement-not-supplant funding requirements. Grantees may not use DCEDS funds to supplant funds that have been or otherwise would have been used for the same purpose, including funds made available through the Federal Emergency Management Agency, a State, or a nonprofit relief organization, with the exception of unreimbursed funds that the grantee has already spent on unexpected expenses associated with enrolling displaced students from affected IHEs. Grantees may use DCEDS funds to supplement funds from other sources up to the full amount needed to fully pay the unexpected expenses.

    IV. Application and Submission Information

    1. Address To Request Application Package: James Davis, U.S. Department of Education, 400 Maryland Avenue SW, Room 268-02, Washington, DC 20202-6200. Telephone: (202) 453-7814. Email: [email protected].

    To obtain a copy via the internet, use the following address: http://www2.ed.gov/programs/dceds/applicant.html.

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

    Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.

    2. Content and Form of Application Submission: Application contents shall include:

    a. A description of the applicant's activities, and unexpected expenses associated with enrolling displaced students from IHEs at which operations have been disrupted by a covered disaster or emergency, for which the applicant requests funding under this program.

    b. A list of the displaced students, by anonymous unique identifier, for whom the applicant engaged in the enrollment activities labeled (a) through (c) below under Selection Criteria (tuition, fees, room, and board) and now requests funding under this program, as a result of each covered disaster or emergency, including, for each student, (1) the institution from which the student was displaced, and (2) the covered disaster or emergency that resulted in the student being displaced.

    c. A description of the steps the applicant is taking to ensure accountability for the use of program funds and compliance with statutory requirements.

    d. The total amount of aid requested for the allowable enrollment activities labeled (a) through (c) below under Selection Criteria (tuition, fees, room, and board).

    Note:

    We may consider late applications after on-time applications are evaluated.

    Applications for grants under this competition may be submitted in one of two ways:

    a. Email an electronic version of your application in PDF (Portable Document Format) to [email protected], or

    b. Mail the original and two copies of your application by express mail service through the U.S. Postal Service or through a commercial carrier to James Davis, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Room 268-02, Washington, DC 20202-6200.

    The amount of time it can take to email an application will vary depending on a variety of factors, including the size of the application and the speed of your internet connection. Therefore, we strongly recommend that you do not wait until minutes before the application deadline to begin emailing your application.

    For information on requirements when submitting paper applications, please see Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    3. Accommodations: Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under FOR FURTHER INFORMATION CONTACT. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remains subject to all other requirements and limitations in this notice.

    4. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. However, under 34 CFR 79.8(a), we waive intergovernmental review in order to make awards in the applicable timeframe.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section above.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number, and you must maintain an active System for Award Management (SAM) registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period. For information on these requirements, please see Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    You may access the electronic grant application for the DCEDS Program at https://www.ed.gov/hurricane-help.

    Note:

    Applications must be emailed or mailed as described above. Applications will not be accepted through www.grants.gov.

    V. Application Review Information

    1. Selection Criteria: The Secretary establishes the following factors as criteria to be used in allocating these funds:

    (a) Total amount of tuition waived, not including any portion covered by Federal, State, or private aid, for qualifying displaced students;

    (b) Total amount of fees waived, not including any portion covered by Federal, State, or private aid, for qualifying displaced students;

    (c) Total amount of room and board costs incurred by the applicant, not including any portion covered by Federal, State, or private aid, in order to enroll qualifying displaced students;

    (d) Funds already received by the applicant to help defray the unexpected costs of enrolling qualifying displaced students. (To the extent that Federal, State, and private aid has already been subtracted from parts (a) through (c), do not count such amounts again in part (d) as funds already received. Please see the supplement-not-supplant information listed under Supplement-Not-Supplant.)

    Note:

    In this competition, only the costs of tuition, fees, room, and board are allowable. If, after awards are made, funds remain available to defray additional costs under this program, we may invite applications under a new competition.

    2. Review and Selection Process: Most funds will be awarded to IHEs that have enrolled displaced students during the 2017-2018 academic year.

    The Secretary may solicit, from any applicant at any time, additional information needed to process an application.

    We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose specific conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through SAM. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    5. Improper Payments—Additional Reporting: The Bipartisan Budget Act of 2018 designates this program to be “susceptible to significant improper payments” for purposes of the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note). See Public Law 115-123, the “Bipartisan Budget Act of 2018,” Division B, Subdivision 1, Title XII, § 21208(a), Feb. 9, 2018; 132 Stat. 108. Grantees will be required to undertake significant additional reporting as we implement plans to identify and reduce improper payments. We will provide additional information after we make awards.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We also may notify you informally.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Reporting: (a) If you apply for a grant, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    VII. Other Information

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

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

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

    Dated: April 30, 2018. Frank T. Brogan, Principal Deputy Assistant Secretary and Delegated the Duties of the Assistant Secretary, Office of Policy, Evaluation and Policy Development, Delegated the duties of Assistant Secretary, Office of Postsecondary Education.
    [FR Doc. 2018-09418 Filed 5-2-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Environmental Management Site-Specific Advisory Board, Northern New Mexico AGENCY:

    Department of Energy (DOE).

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the Federal Register.

    DATES:

    Wednesday, May 23, 2018 1:00 p.m.-5:15 p.m.

    ADDRESSES:

    Ohkay Conference Center, Highway 68, 1 Mile North of Española, Ohkay Owingeh, New Mexico 87566.

    FOR FURTHER INFORMATION CONTACT:

    Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 94 Cities of Gold Road, Santa Fe, NM 87506. Phone (505) 995-0393; Fax (505) 989-1752 or Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management, and related activities.

    Tentative Agenda • Call to Order • Welcome and Introductions • Approval of Agenda and Meeting Minutes of March 14, 2018 • Old Business ○ Report on EM SSAB Chairs Meeting ○ Other Items • New Business • Wildfire Mitigation In and Around Los Alamos National Laboratory • Break • Update on EM Contract Transition • Consideration and Action on Draft Recommendation 2018-02, Energy Communities Alliance's Waste Disposition Report • Public Comment Period • Update from EM Los Alamos Field Office • Update from New Mexico Environment Department • Update from NNMCAB Deputy Designated Federal Officer and Executive Director • Wrap-Up Comments from NNMCAB Members • Adjourn

    Public Participation: The EM SSAB, Northern New Mexico, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Menice Santistevan at least seven days in advance of the meeting at the telephone number listed above. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral statements pertaining to agenda items should contact Menice Santistevan at the address or telephone number listed above. Requests must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comments will be provided a maximum of five minutes to present their comments.

    Minutes: Minutes will be available by writing or calling Menice Santistevan at the address or phone number listed above. Minutes and other Board documents are on the internet at: https://energy.gov/em/nnmcab/meeting-materials.

    Issued at Washington, DC, on April 30, 2018. Latanya Butler, Deputy Committee Management Officer.
    [FR Doc. 2018-09388 Filed 5-2-18; 8:45 am] BILLING CODE 6450-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2004-0500; FRL-9977-47-OEI] Information Collection Request Submitted to OMB for Review and Approval; Comment Request; EPA's ENERGY STAR Program in the Residential Sector AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) has submitted an information collection request (ICR)—EPA's ENERGY STAR Program in the Residential Sector, EPA ICR Number 2193.04, OMB Control Number 2060-0586—to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Public comments were previously requested via the Federal Register on January 5, 2018 during a 60-day comment period. This notice allows for an additional 30 days for public comments. A fuller description of the ICR is given below, including its estimated burden and cost to the public. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Additional comments may be submitted on or before June 4, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2004-0500, to (1) EPA online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460, and (2) OMB via email to [email protected]. Address comments to OMB Desk Officer for EPA.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Brian Ng, Energy Star Residential Branch, Mailcode 6202A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 343-9162; fax number: (202) 343-2204; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR, which can be viewed online at www.regulations.gov or in person at the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Docket Center telephone number is 202-566-1744. For additional information, visit http://www.epa.gov/dockets.

    Abstract: ENERGY STAR® is a voluntary energy efficiency labeling and public outreach program aimed at forming public-private partnerships that prevent air pollution rather than control it after its creation. ENERGY STAR's new construction programs promote cost-effective, whole house energy efficiency that is independently verified by third party professionals. ENERGY STAR also promotes cost-effective energy efficiency improvements in existing homes through its ENERGY STAR Verified HVAC Installation program. Participation in the ENERGY STAR program is voluntary and included the following activities:

    Joining the ENERGY STAR Program and Related Activities: An organization interested in joining ENERGY STAR as a partner is asked to complete and submit a partnership agreement. Partners agree to undertake efforts such as educating their staff and the public about the partnership, developing and implementing a plan to improve energy performance in homes, and highlighting achievements utilizing the ENERGY STAR label.

    Verification of ENERGY STAR Guidelines: The verification process for site-built homes involves the home builder, the third-party verification organization (Home Energy Rating Providers and Home Energy Raters) and the HVAC contractor, which complete four checklists as part of the verification process. The verification process for multifamily high-rise units involves the developer submitting information both pre-construction and post-construction to a third-party Multifamily High Rise Review Organization to ensure that program prerequisites and energy conservation measures are properly installed and meet ENERGY STAR requirements. In addition, plants producing manufactured homes undergo a certification process to ensure that they can consistently produce and install homes that meet ENERGY STAR guidelines. Also, under ENERGY STAR's Verified HVAC Installation program, local program sponsors promote the installation of HVAC systems in homes to meet ENERGY STAR guidelines. Sponsors oversee contractors who perform the installations, perform tests, and report the results to the sponsors. Sponsors submit periodic reports to EPA on these activities.

    Evaluation: Partners and other participants are asked to periodically submit information as needed to assist in evaluating the effectiveness of ENERGY STAR's energy efficiency guidelines, to provide information about energy efficiency incentives available to the public, and to determine the impact that ENERGY STAR has on the market for energy-efficient homes.

    Periodic Reporting: Some partners are asked to periodically submit information to EPA to assist EPA in tracking and measuring progress in building and promoting ENERGY STAR certified homes and installing and promoting energy-efficient improvements.

    ENERGY STAR Awards: Each year, partners who meet specific criteria are eligible to apply for an ENERGY STAR award, which recognizes organizations demonstrating outstanding support in promoting ENERGY STAR.

    Form Numbers: 5900-188, 5900-266, 5900-268, 5900-269, 5900-270, 5900-420, 5900-421, 5900-422, 5900-423, 5900-424, 5900-425, 5900-426, 5900-427, 5900-428, 5900-429.

    Respondents/affected entities: ENERGY STAR partners, including home builders, multifamily high rise developers, manufactured home plants, verification organizations, and energy efficiency program sponsors. Also included are oversight organizations and HVAC contractors.

    Respondent's obligation to respond: Voluntary

    Estimated number of respondents: 3,235 (total).

    Frequency of response: Once, quarterly, annually, and on occasion.

    Total estimated burden: 177,847 hours (per year). Burden is defined at 5 CFR 1320.03(b).

    Total estimated cost: $14,747,008 (per year), includes $0 annualized capital or operation & maintenance costs.

    Changes in the Estimates: There is a decrease of 6,120 hours in the total estimated respondent burden compared with the ICR currently approved by OMB. This includes a 68,457-hour decrease due primarily to program changes and a 62,337-hour increase due to adjustments resulting primarily from improved data and analysis. EPA's program changes include the sun-setting of several programs and collections, including the Lender Partnership program, the Designed to Earn program, and the Outreach Partnership. In addition, the Home Performance with ENERGY STAR program was transferred from EPA to the U.S. Department of Energy. EPA also will no longer collect homeowner information related to ENERGY STAR certified homes or other programmatic information under this ICR. EPA's adjustments include updating the number of respondents and burdens based on improved data and analysis.

    Courtney Kerwin, Director, Collection Strategies Division.
    [FR Doc. 2018-09332 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9977-54-Region 6] Underground Injection Control Program; Hazardous Waste Injection Restrictions; Petition for Exemption Reissuance—Class I Hazardous Waste Injection; Equistar Corpus Christi, Texas AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of a final decision on a UIC no migration petition reissuance.

    SUMMARY:

    Notice is hereby given that a reissuance of an exemption to the Land Disposal Restrictions, under the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, has been granted to Equistar for two Class I hazardous waste injection wells located at their Corpus Christi, Texas facility. The company has adequately demonstrated to the satisfaction of the EPA by the petition reissuance application and supporting documentation that, to a reasonable degree of certainty, there will be no migration of hazardous constituents from the injection zone for as long as the waste remains hazardous. This final decision allows the underground injection by Equistar of the specific restricted hazardous wastes identified in this exemption reissuance, into Class I hazardous waste injection wells WDW-152 and WDW-153 until December 31, 2045, unless the EPA moves to terminate this exemption or other petition condition limitations are reached. Additional conditions included in this final decision may be reviewed by contacting the EPA Region 6 Ground Water/UIC Section. A public notice was issued February 26, 2018, and the public comment period closed on April 13, 2018, and no comments were received. This decision constitutes final Agency action and there is no Administrative appeal. This decision may be reviewed/appealed in compliance with the Administrative Procedure Act.

    DATES:

    This action is effective as of April 20, 2018.

    ADDRESSES:

    Copies of the petition reissuance and all pertinent information relating thereto are on file at the following location: Environmental Protection Agency, Region 6, Water Division, Safe Drinking Water Branch (6WQ-S), 1445 Ross Avenue, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Philip Dellinger, Chief, Ground Water/UIC Section, EPA—Region 6, telephone (214) 665-8324.

    Dated: April 20, 2018. James R. Brown, Associate Director, Safe Drinking Water Branch.
    [FR Doc. 2018-09410 Filed 5-2-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL ACCOUNTING STANDARDS ADVISORY BOARD Notice of Request for Comment on the Exposure Draft of a Proposed Statement of Federal Financial Accounting Standards (SFFAS), Accounting and Reporting of Government Land AGENCY:

    Federal Accounting Standards Advisory Board.

    ACTION:

    Notice.

    Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued an exposure draft of a proposed Statement of Federal Financial Accounting Standards (SFFAS) entitled Accounting and Reporting of Government Land.

    The exposure draft is available on the FASAB website at http://www.fasab.gov/documents-for-comment/. Copies can be obtained by contacting FASAB at (202) 512-7350.

    Respondents are encouraged to comment on any part of the exposure draft. Written comments are requested by July 30, 2018, and should be sent to [email protected] or Wendy M. Payne, Executive Director, Federal Accounting Standards Advisory Board, 441 G Street NW, Suite 1155, Washington, DC 20548.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Wendy M. Payne, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.

    Authority:

    Federal Advisory Committee Act, Pub. L. 92-463.

    Dated: April 30, 2018. Wendy M. Payne, Executive Director.
    [FR Doc. 2018-09391 Filed 5-2-18; 8:45 am] BILLING CODE 1610-02-P
    FEDERAL ELECTION COMMISSION Sunshine Act Meeting TIME AND DATE:

    Tuesday, May 8, 2018 at 10:00 a.m.

    PLACE:

    1050 First Street NE, Washington, DC

    STATUS:

    This meeting will be closed to the public.

    MATTERS TO BE CONSIDERED:

    Compliance matters pursuant to 52 U.S.C. 30109.

    Matters relating to internal personnel decisions, or internal rules and practices.

    Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.

    Matters concerning participation in civil ac