Federal Register Vol. 83, No.88,

Federal Register Volume 83, Issue 88 (May 7, 2018)

Page Range19905-20705
FR Document

83_FR_88
Current View
Page and SubjectPDF
83 FR 20072 - Re-issuance of a General NPDES Permit (GP) for Small Suction Dredges in IdahoPDF
83 FR 20683 - Adjusting Imports of Steel Into the United StatesPDF
83 FR 20677 - Adjusting Imports of Aluminum Into the United StatesPDF
83 FR 20101 - Sunshine Act Meeting NoticePDF
83 FR 20074 - Sunshine Act MeetingPDF
83 FR 20101 - Sunshine Act Meetings; National Science BoardPDF
83 FR 20008 - 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties RegulationPDF
83 FR 20138 - Commercial Space Transportation Advisory Committee-Open MeetingPDF
83 FR 20079 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Small Health Care Provider Quality Improvement Program, OMB No. 0915-0387-RevisionPDF
83 FR 20094 - Public Availability of FY 2016 Service Contracts Inventory Analysis, and Planned Analysis of FY 2017 Service Contracts InventoryPDF
83 FR 20097 - Notice of Information CollectionPDF
83 FR 20078 - Request for Comment: New Federal Real Property Profile Information for Communications Facility InstallationPDF
83 FR 20056 - Applications for New Awards; Assistance for Arts Education Program-Arts in Education National ProgramPDF
83 FR 20080 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Rural Health Opioid Program Grant Performance Measures, OMB No. 0906-xxxx-NEWPDF
83 FR 19965 - Safety Zone; Neches River, Beaumont, TXPDF
83 FR 20073 - Notice to All Interested Parties of Intent To Terminate ReceivershipsPDF
83 FR 20085 - Cook Inlet Regional Citizens' Advisory Council (CIRCAC) RecertificationPDF
83 FR 19965 - Safety Zone; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Marinette Logging and Heritage FestPDF
83 FR 19963 - Safety Zone; Ohio River, Metropolis, ILPDF
83 FR 20082 - Request for Data and Information on Technologies Used for Identifying Potential Developmental ToxicantsPDF
83 FR 20084 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 20081 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 20084 - National Institute on Aging; Notice of Closed MeetingPDF
83 FR 20083 - National Institute of Environmental Health Sciences; Notice of MeetingPDF
83 FR 20083 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 20082 - Center For Scientific Review; Notice of Closed MeetingsPDF
83 FR 20081 - Prospective Grant of Exclusive Patent License: Antibodies Against TL1A, a TNF-Family Cytokine, for the Treatment and Diagnosis of Crohn's Disease, Ulcerative Colitis, Asthma, Psoriasis and Biliary CirrhosisPDF
83 FR 20002 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate StandardsPDF
83 FR 20070 - Dinotefuran; Receipt of Applications for Emergency Exemptions, Solicitation of Public CommentPDF
83 FR 19972 - Konjac Glucomannan; Exemption From the Requirement of a TolerancePDF
83 FR 20008 - Receipt of a Pesticide Petition Filed for Residues of Diquat in or on Crop Group 6C, Dried Shelled Pea and Bean (Except Soybean); CorrectionPDF
83 FR 19968 - Duddingtonia flagrans strain IAH 1297; Exemption from the Requirement of a TolerancePDF
83 FR 20077 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 20077 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
83 FR 20077 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 20038 - Meeting of the United States Travel and Tourism Advisory BoardPDF
83 FR 20138 - Release of Waybill DataPDF
83 FR 19915 - Debt Refinancing in 504 Loan ProgramPDF
83 FR 19934 - Food Additives Permitted in Feed and Drinking Water of Animals; Marine MicroalgaePDF
83 FR 20033 - Foreign-Trade Zone (FTZ) 37-Orange County, New York; Notification of Proposed Production Activity; Takasago International Corp. (U.S.A.) (Fragrances); Harriman, New YorkPDF
83 FR 20034 - Foreign-Trade Zone 29-Louisville, Kentucky; Application for Subzone; Amcor Flexibles LLC; Shelbyville, KentuckyPDF
83 FR 20035 - Polytetrafluoroethylene Resin From India: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 20039 - Polytetrafluoroethylene Resin From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 20034 - Subsidy Programs Provided by Countries Exporting Softwood Lumber and Softwood Lumber Products to the United States; Request for CommentPDF
83 FR 20038 - Steel Wire Garment Hangers From the Socialist Republic of Vietnam: Rescission of Antidumping Duty Administrative Review; 2017-2018PDF
83 FR 20098 - Records Schedules; Availability and Request for CommentsPDF
83 FR 20145 - Request for Applications for Appointment to the Citizens Coinage Advisory CommitteePDF
83 FR 19921 - Express Bridge Loan Pilot Program; Modification of Fee PolicyPDF
83 FR 20086 - Revision of Agency Information Collection Activity Under OMB Review: Airport Security Part 1542PDF
83 FR 20032 - Agency Information Collection Activities; Comment Request: National Universal Product Code (NUPC) DatabasePDF
83 FR 20086 - Committee Name: Homeland Security Academic Advisory CouncilPDF
83 FR 20065 - Olmsted Powerplant Replacement Project-Rate Order No. WAPA-177PDF
83 FR 20074 - Policy on Payment System Risk and Expanded Real-Time MonitoringPDF
83 FR 20061 - Update on Reimbursement for Costs of Remedial Action at Uranium and Thorium Processing SitesPDF
83 FR 20138 - Military Reservist Economic Injury Disaster Loans Interest Rate for Third Quarter FY 2018PDF
83 FR 20062 - Combined Notice of FilingsPDF
83 FR 20064 - Records Governing Off-the-Record Communications; Public NoticePDF
83 FR 20063 - Notice of Technical Conference: Atmos Pipeline-TexasPDF
83 FR 20062 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization: ACT Commodities, Inc.PDF
83 FR 20063 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization: Pine River Wind Energy LLCPDF
83 FR 20064 - Combined Notice of Filings #1PDF
83 FR 20139 - Agency Information Collection Activity; Notice of Request for Approval To Collect New Information: Oil and Gas Industry Safety Data ProgramPDF
83 FR 20131 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend FINRA Rule 6433 To Adopt the OTC Quotation Tier Pilot as PermanentPDF
83 FR 20042 - National Process for Permit Applications To Retain Releasable Rehabilitated Marine Mammals for Public DisplayPDF
83 FR 20045 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Pinniped Research Activities in Central CaliforniaPDF
83 FR 20138 - Petition for Exemption; Summary of Petition Received; AmeriflightPDF
83 FR 20071 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of TennesseePDF
83 FR 20072 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of North DakotaPDF
83 FR 20072 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Revisions to the RCRA Definition of Solid Waste (Renewal)PDF
83 FR 20092 - Endangered and Threatened Wildlife and Plants; 5-Year Status Reviews for 35 Southeastern SpeciesPDF
83 FR 20088 - Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews for 156 Species in Oregon, Washington, Hawaii, Palau, Guam, and the Northern Mariana IslandsPDF
83 FR 20087 - Draft Restoration Plan and Environmental Assessment for the Cardinal Valley Natural Habitat Restoration Project, Oronogo-Duenweg Mining Belt Superfund Site, MissouriPDF
83 FR 20141 - Proposed Collection; Comment Request for Form 8693PDF
83 FR 20144 - Proposed Collection; Comment Request for Form 1099-SPDF
83 FR 20141 - Proposed Collection; Comment Request for Form 1098-CPDF
83 FR 20142 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 20144 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 20143 - Proposed Collection; Comment Request for Rev. Proc. 99-17PDF
83 FR 20103 - Acceptance Sampling Procedures for Exempted and Generally Licensed Items Containing Byproduct MaterialPDF
83 FR 20100 - Astronomy and Astrophysics Advisory Committee: Notice of MeetingPDF
83 FR 19936 - Removal of Certain Time of Inspection and Duties of Inspector Regulations for Biological Products; WithdrawalPDF
83 FR 19981 - Fisheries Off West Coast States; Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to the Biennial Management CyclePDF
83 FR 20094 - Minor Boundary Revision at Fire Island National SeashorePDF
83 FR 20078 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 20129 - Joint Industry Plan; Order of Summary Abrogation of the Forty-Second Amendment to the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges BasisPDF
83 FR 20126 - Consolidated Tape Association; Order of Summary Abrogation of the Twenty-Third Charges Amendment to the Second Restatement of the CTA Plan and the Fourteenth Charges Amendment to the Restated CQ PlanPDF
83 FR 20100 - Sunshine Act Meeting; National Museum and Library Services BoardPDF
83 FR 20118 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify its Fee Schedule To Charge a More Deterministic Fee of $0.0003 Per Share for Executions at or Above $1.00 That Result From Removing Liquidity With an Order That is Executable at the Far Side of the NBBOPDF
83 FR 20103 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Allow the Horizons Cadence Hedged U.S. Dividend Yield ETF, a Series of the Horizons ETF Trust I, To Hold Listed Options Contracts in a Manner That Does Not Comply With Rule 14.11(i), Managed Fund SharesPDF
83 FR 20110 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make a Non-Substantive, Clarifying Change To Footnote 10 of Its Price ListPDF
83 FR 20107 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add Pricing for P.M. Settled Options on Broad-Based Indexes With Nonstandard Expiration DatesPDF
83 FR 20123 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Designation of a Longer Period on Commission Action on a Proposed Rule Change To Adopt the Route QCT Cross Routing OptionPDF
83 FR 20111 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to List and Trade Exchange-Traded Managed Fund Shares of the Gabelli Pet Parent Fund Under Nasdaq Rule 5745PDF
83 FR 20123 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a New Market Order Spread ProtectionPDF
83 FR 20042 - Endangered and Threatened Species; Take of Anadromous FishPDF
83 FR 20095 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 20096 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 20099 - Designation of Three High Intensity Drug Trafficking AreasPDF
83 FR 20160 - Agency Information Collection Activity: Application for Burial in a National CemeteryPDF
83 FR 20056 - Notice of Public Hearing and Business MeetingPDF
83 FR 19930 - Amendment of Class E Airspace; Charlotte, MIPDF
83 FR 19933 - Amendment of Class E Airspace; Milwaukee, WIPDF
83 FR 19987 - Proposed Amendment of Class D and Class E Airspace and Proposed Revocation of Class E Airspace; Jackson, MIPDF
83 FR 20102 - Information Collection: 10 CFR Part 95, Facility Security Clearance and Safeguarding of National Security Information and Restricted DataPDF
83 FR 20099 - Arts Advisory Panel MeetingsPDF
83 FR 20145 - Sentencing Guidelines for United States CourtsPDF
83 FR 19905 - Policy on Audits of RUS Borrowers and GranteesPDF
83 FR 19928 - Airworthiness Directives; Safran Helicopter Engines, S.A., Turboshaft EnginesPDF
83 FR 19950 - National Industrial Security ProgramPDF
83 FR 20097 - Meeting of the Global Justice Information Sharing Initiative Federal Advisory CommitteePDF
83 FR 20011 - 4.9 GHz BandPDF
83 FR 19931 - Amendment of Class E Airspace; Muscatine, IAPDF
83 FR 19986 - Proposed Revocation of Class E Airspace; Springfield, OHPDF
83 FR 20055 - Notice of MeetingPDF
83 FR 19989 - Revising the Beryllium Standard for General IndustryPDF
83 FR 19936 - Revising the Beryllium Standard for General IndustryPDF
83 FR 19925 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 20004 - Withdrawal of Proposed Rules; Discontinuing Several Rulemaking Efforts Listed in the Semiannual Regulatory AgendaPDF
83 FR 19922 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
83 FR 19983 - Airworthiness Directives; Viking Air Limited AirplanesPDF
83 FR 20646 - Revised Medical Criteria for Evaluating Musculoskeletal DisordersPDF
83 FR 19976 - Modification of Rules To Codify New Procedure for Non-Federal Public Safety Entities To License Federal Interoperability ChannelsPDF
83 FR 20164 - Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Proposed Policy Changes and Fiscal Year 2019 Rates; Proposed Quality Reporting Requirements for Specific Providers; Proposed Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs (Promoting Interoperability Programs) Requirements for Eligible Hospitals, Critical Access Hospitals, and Eligible Professionals; Medicare Cost Reporting Requirements; and Physician Certification and Recertification of ClaimsPDF

Issue

83 88 Monday, May 7, 2018 Contents Agriculture Agriculture Department See

Food and Nutrition Service

See

Rural Utilities Service

Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Programs: Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and Long Term Care Hospital Prospective Payment System and Proposed Policy Changes and Fiscal Year 2019 Rates; etc., 20164-20643 2018-08705 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20078-20079 2018-09581 Coast Guard Coast Guard RULES Safety Zones: Annual Events Requiring Safety Zones in Captain of the Port Lake Michigan Zone—Marinette Logging and Heritage Fest, 19965 2018-09663 Neches River, Beaumont, TX, 19965-19968 2018-09667 Ohio River, Metropolis, IL, 19963-19965 2018-09662 NOTICES Recertifications: Cook Inlet Regional Citizens' Advisory Council, 20085-20086 2018-09664 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commission Fine Commission of Fine Arts NOTICES Meetings, 20055-20056 2018-09334 Delaware Delaware River Basin Commission NOTICES Meetings: Public Hearing and Business, 20056 2018-09563 Education Department Education Department NOTICES Applications for New Awards: Assistance for Arts Education Program—Arts in Education National Program, 20056-20061 2018-09669 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

Western Area Power Administration

NOTICES Update on Reimbursement for Costs of Remedial Action at Uranium and Thorium Processing Sites, 20061-20062 2018-09621
Environmental Protection Environmental Protection Agency RULES Tolerance Exemptions: Duddingtonia flagrans strain IAH 1297, 19968-19972 2018-09647 Konjac glucomannan, 19972-19976 2018-09649 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Virginia; Regional Haze Plan and Visibility for 2010 Sulfur Dioxide and 2012 Fine Particulate Standards, 20002-20004 2018-09653 Pesticide Petitions: Residues of Diquat in or on Crop Group 6C, Dried Shelled Pea and Bean (Except Soybean); Correction, 20008 2018-09648 Withdrawal of Proposed Rules; Discontinuing Several Rulemaking Efforts Listed in Semiannual Regulatory Agenda, 20004-20008 2018-09206 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Revisions to RCRA Definition of Solid Waste, 20072-20073 2018-09605 Applications for Emergency Exemptions: Dinotefuran, 20070-20071 2018-09650 Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of North Dakota, 20072 2018-09606 Authorized Program Revision Approval, State of Tennessee, 20071-20072 2018-09607 National Pollutant Discharge Elimination System Permits: Small Suction Dredges in Idaho, 20072 C1--2018--09317 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 19925-19928 2018-09280 Gulfstream Aerospace Corporation Airplanes, 19922-19925 2018-08956 Safran Helicopter Engines, S.A., Turboshaft Engines, 19928-19930 2018-09466 Amendment of Class E Airspace: Charlotte, MI, 19930-19931 2018-09562 Milwaukee, WI, 19933-19934 2018-09561 Muscatine, IA, 19931-19933 2018-09403 PROPOSED RULES Airworthiness Directives: Viking Air Limited Airplanes, 19983-19985 2018-08948 Amendment of Class D and Class E Airspace and Revocation of Class E Airspace: Jackson, MI, 19987-19989 2018-09560 Revocation of Class E Airspace: Springfield, OH, 19986-19987 2018-09402 NOTICES Meetings: Commercial Space Transportation Advisory Committee, 20138 2018-09675 Petitions for Exemptions; Summaries: Ameriflight, 20138-20139 2018-09608 Federal Communications Federal Communications Commission RULES Non-Federal Public Safety Entities to License Federal Interoperability Channels: Modification of Rules To Codify New Procedure, 19976-19981 2018-08790 PROPOSED RULES 4.9 GHz Band, 20011-20031 2018-09416 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership, 20073-20074 2018-09666 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 20074 2018-09804 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 20062-20065 2018-09614 2018-09619 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: ACT Commodities, Inc., 20062 2018-09616 Pine River Wind Energy, LLC, 20063-20064 2018-09615 Meetings: Atmos Pipeline-Texas; Technical Conference, 20063 2018-09617 Records Governing Off-the-Record Communications, 20064 2018-09618 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 20077 2018-09643 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 20077 2018-09645 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 20077 2018-09644 Policy on Payment System Risk and Expanded Real-Time Monitoring, 20074-20077 2018-09622 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Species: 5-Year Status Reviews for 35 Southeastern Species, 20092-20094 2018-09604 Initiation of 5-Year Status Reviews for 156 Species in Oregon, Washington, Hawaii, Palau, Guam, and Northern Mariana Islands, 20088-20092 2018-09603 Environmental Assessments; Availability, etc.: Cardinal Valley Natural Habitat Restoration Project, Oronogo-Duenweg Mining Belt Superfund Site, Missouri; Draft Restoration Plan, 20087-20088 2018-09599 Food and Drug Food and Drug Administration RULES Food Additives Permitted in Feed and Drinking Water of Animals: Marine Microalgae, 19934-19935 2018-09636 Removal of Certain Time of Inspection and Duties of Inspector Regulations for Biological Products; Withdrawal, 19936 2018-09589 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Universal Product Code Database, 20032-20033 2018-09625 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Takasago International Corp., Foreign-Trade Zone 37, Orange County, NY, 20033-20034 2018-09635 Subzone Applications: Amcor Flexibles LLC, Foreign-Trade Zone 29, Louisville, KY, 20034 2018-09634 General Services General Services Administration NOTICES Requests for Comments: New Federal Property Profile Information for Communications Facility Installation, 20078 2018-09671 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

Health Resources and Services Administration

See

National Institutes of Health

PROPOSED RULES 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation, 20008-20011 2018-09711
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Rural Health Opioid Program Grant Performance Measures, 20080-20081 2018-09668 Small Health Care Provider Quality Improvement Program, 20079-20080 2018-09674 Homeland Homeland Security Department See

Coast Guard

See

Transportation Security Administration

NOTICES Charter Renewals: Homeland Security Academic Advisory Council, 20086 2018-09624
Information Information Security Oversight Office RULES National Industrial Security Program, 19950-19963 2018-09465 Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20141-20145 2018-09592 2018-09595 2018-09596 2018-09597 2018-09598 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulation Project, 20142-20144 2018-09593 2018-09594 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Steel Wire Garment Hangers From Socialist Republic of Vietnam, 20038-20039 2018-09630 Determinations of Sales at Less Than Fair Value: Polytetrafluoroethylene Resin From India, 20035-20038 2018-09633 Polytetrafluoroethylene Resin From the People's Republic of China, 20039-20041 2018-09632 Meetings: United States Travel and Tourism Advisory Board, 20038 2018-09642 Subsidy Programs Provided by Countries Exporting Softwood Lumber and Softwood Lumber Products to United States, 20034-20035 2018-09631 International Trade Com International Trade Commission NOTICES Complaints: Certain Blood Cholesterol Testing Strips and Associated Systems Containing Same, 20095-20096 2018-09569 Certain Blow-Molded Bag-In-Container Devices, Associated Components, and End Products Containing or Using Same, 20096-20097 2018-09568 Public Availability of FY 2016 Service Contracts Inventory Analysis; Planned Analysis of FY 2017 Service Contracts Inventory, 20094-20095 2018-09673 Justice Department Justice Department See

Justice Programs Office

Justice Programs Justice Programs Office NOTICES Meetings: Global Justice Information Sharing Initiative Federal Advisory Committee, 20097 2018-09420 Labor Department Labor Department See

Occupational Safety and Health Administration

NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20097-20098 2018-09672 National Archives National Archives and Records Administration See

Information Security Oversight Office

NOTICES Records Schedules, 20098-20099 2018-09629
National Drug National Drug Control Policy Office NOTICES Designation of Three High Intensity Drug Trafficking Areas, 20099 2018-09567 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: Arts Advisory Panel, 20099-20100 2018-09554 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

NOTICES Meetings; Sunshine Act, 20100 2018-09578
National Institute National Institutes of Health NOTICES Exclusive Patent Licenses; Proposed Approvals: Antibodies Against TL1A, a TNF-Family Cytokine, for Treatment and Diagnosis of Crohn's Disease, Ulcerative Colitis, Asthma, Psoriasis and Biliary Cirrhosis, 20081-20082 2018-09654 Government-Owned Inventions; Availability for Licensing, 20083-20085 2018-09656 2018-09660 Meetings: Center for Scientific Review, 20082-20083 2018-09655 National Institute of Allergy and Infectious Diseases, 20081 2018-09659 National Institute of Environmental Health Sciences, 20083 2018-09657 National Institute on Aging, 20084 2018-09658 Request for Data and Information: Technologies Used for Identifying Potential Developmental Toxicants, 20082 2018-09661 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States: Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to Biennial Management Cycle, 19981-19982 2018-09584 NOTICES Endangered and Threatened Species: Take of Anadromous Fish, 20042 2018-09570 Permit Applications: Retain Releasable Rehabilitated Marine Mammals for Public Display, 20042-20044 2018-09611 Takes of Marine Mammals Incidental to Specified Activities: Seabird and Pinniped Research Activities in Central California, 20045-20055 2018-09610 National Park National Park Service NOTICES Boundary Revisions: Fire Island National Seashore, 20094 2018-09583 National Science National Science Foundation NOTICES Meetings: Astronomy and Astrophysics Advisory Committee, 20100-20101 2018-09590 Meetings; Sunshine Act, 20101 2018-09751 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Facility Security Clearance and Safeguarding of National Security Information and Restricted Data, 20102-20103 2018-09555 Guidance: Acceptance Sampling Procedures for Exempted and Generally Licensed Items Containing Byproduct Material; Withdrawal, 20103 2018-09591 Meetings; Sunshine Act, 20101-20102 2018-09826 Occupational Safety Health Adm Occupational Safety and Health Administration RULES Revising Beryllium Standard for General Industry, 19936-19949 2018-09306 PROPOSED RULES Revising Beryllium Standard for General Industry, 19989-20001 2018-09307 Presidential Documents Presidential Documents PROCLAMATIONS Trade: Aluminum; Adjustment of Imports Into the United States (Proc. 9739), 20675-20682 2018-09840 Steel; Adjustment of Imports Into the United States (Proc. 9740), 20683-20705 2018-09841 Rural Utilities Rural Utilities Service RULES Policy on Audits of RUS Borrowers and Grantees, 19905-19915 2018-09501 Securities Securities and Exchange Commission NOTICES Consolidated Tape Association: Order of Summary Abrogation of Twenty-Third Charges Amendment to Second Restatement of CTA Plan and Fourteenth Charges Amendment to Restated CQ Plan, 20126-20129 2018-09579 Joint Industry Plans: Order of Summary Abrogation of Forty-Second Amendment to Joint Self-Regulatory Organization Plan Governing Collection, etc., 20129-20131 2018-09580 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 20103-20107 2018-09576 Chicago Stock Exchange, Inc., 20123 2018-09573 Financial Industry Regulatory Authority, Inc., 20131-20137 2018-09612 Investors Exchange, LLC, 20118-20123 2018-09577 Nasdaq ISE, LLC, 20107-20110 2018-09574 Nasdaq PHLX, LLC, 20123-20126 2018-09571 Nasdaq Stock Market, LLC, 20111-20118 2018-09572 New York Stock Exchange, LLC, 20110-20111 2018-09575 Small Business Small Business Administration RULES Debt Refinancing in 504 Loan Program, 19915-19921 2018-09638 Express Bridge Loan Pilot Program: Modification of Fee Policy, 19921-19922 2018-09627 NOTICES Military Reservist Economic Injury Disaster Loans: Interest Rate for Third Quarter FY 2018, 20138 2018-09620 Social Social Security Administration PROPOSED RULES Medical Criteria for Evaluating Musculoskeletal Disorders, 20646-20673 2018-08889 Surface Transportation Surface Transportation Board NOTICES Releases of Waybill Data, 20138 2018-09641 Transportation Department Transportation Department See

Federal Aviation Administration

See

Transportation Statistics Bureau

Security Transportation Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Airport Security, 20086-20087 2018-09626 Transportation Statistics Transportation Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Oil and Gas Industry Safety Data Program, 20139-20141 2018-09613 Treasury Treasury Department See

Internal Revenue Service

See

United States Mint

U.S. Mint United States Mint NOTICES Requests for Applications: Citizens Coinage Advisory Committee, 20145 2018-09628 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing Guidelines for United States Courts, 20145-20160 2018-09549 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Burial in National Cemetery, 20160-20161 2018-09564 Western Western Area Power Administration NOTICES Olmsted Powerplant Replacement Project-Rate Order No. WAPA-177, 20065-20070 2018-09623 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 20164-20643 2018-08705 Part III Social Security Administration, 20646-20673 2018-08889 Part IV Presidential Documents, 20675-20705 2018-09840 2018-09841 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.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

83 88 Monday, May 7, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Rural Utilities Service 7 CFR Part 1773 RIN 0572-AC33 Policy on Audits of RUS Borrowers and Grantees AGENCY:

Rural Utilities Service, USDA.

ACTION:

Final rule with request for comment.

SUMMARY:

The Rural Utilities Service (RUS) is amending its regulations regarding its Policy on Audits to incorporate 2011 revisions to the Generally Accepted Government Auditing Standards (GAGAS) issued by the Government Accountability Office (GAO), the clarified audit standards issued by the American Institute of Certified Public Accountants (AICPA) in 2011, and Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Subpart F, Audit Requirements, issued by the Office of Management and Budget on December 26, 2013, and adopted by USDA on December 26, 2014. RUS is also expanding and clarifying its regulations to: include grant recipients, amend its peer review requirements, amend its reporting requirements, expand the options for the electronic filing of audits, and clarify a number of existing audit requirements, and is amending the title to reflect this change.

DATES:

Effective Date: Rule will become effective on July 6, 2018 and is applicable for financial audits for periods ending on or after December 15, 2018.

Comment Date: Comments must be received by RUS on or before June 6, 2018.

ADDRESSES:

Submit comments by either of the following methods:

• Federal eRulemaking Portal at https://www.regulations.gov/. Follow instructions for submitting comments.

Postal Mail/Commercial Delivery: Please send your comments addressed to Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Avenue SW, STOP 1522, Room 5164-S, Washington, DC 20250-1522.

Additional information about Rural Development and its programs is available on the internet at https://www.rd.usda.gov/.

FOR FURTHER INFORMATION CONTACT:

William Chris Colberg, Acting Chief, Technical Accounting and Auditing Staff, Program Accounting Services Division, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Avenue SW, STOP 1523, Washington, DC 20250-1523. Telephone: (202) 720-1905.

SUPPLEMENTARY INFORMATION: Executive Order 12866

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 12372

This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with state and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by Executive Order 12372.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this final rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effect will be given to this rule, and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

Regulatory Flexibility Act Certification

RUS has determined that this final rule will not have significant impact on a substantial number of small entities defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The RUS loan programs provide borrowers with loans at interest rates and terms that are more favorable than those generally available from the private sector. Borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct cost associated with RUS regulations and requirements.

National Environmental Policy Act Certification

RUS has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore, this action does not require an environmental impact statement or assessment.

Catalog of Federal Domestic Assistance

The programs described by this final rule are listed in the Catalog of Federal Domestic Assistance under Numbers CFDA 10.751, Rural Energy Savings Program; CFDA 10.787, Broadband Initiatives Program; CFDA 10.850, Rural Electrification Loans and Loan Guarantees; CFDA 10.851, Rural Telephone Loans and Loan Guarantees; CFDA 10.855, Distance Learning and Telemedicine Loans and Grants; CFDA 10.857, Bulk Fuel Revolving Fund Grants; CFDA 10.858, Denali Commission Grants and Loans; CFDA 10.859, Assistance to High Energy Cost Rural Communities; CFDA 10.861, Public Television Station Digital Transition Grant Program; and, CFDA 10.863, Community Connect Grant Program. The General Services Administration (GSA) website at http://www.cfda.gov contains a PDF file version of the CFDA catalog. The print edition of the catalog may be purchased from the U.S. Government Publishing Office (GPO) by calling (202) 512-1800 or toll free at 1-866-512-1800, or by ordering it online at http://bookstore.thefederalregister.org.

Information Collection and Recordkeeping Requirements

The reporting and recordkeeping requirements contained in this final rule have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0572-0095, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C Chapter 35). This final rule contains no new reporting or recordkeeping burdens under OMB Control Number 0572-0095 that would require approval under the Paperwork Reduction Act.

Send questions or comments regarding this burden or any other aspect of these collections of information, including suggestions for reducing the burden, to Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Avenue SW, Stop 1522, Room 5164-S, Washington, DC 20250-1522.

Unfunded Mandates

This final rule contains no Federal mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act of 1995) for state, local, and tribal governments or the private sector. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

Comments

We invite you to participate in this rulemaking by submitting written comments, data, or views before the noted deadline. We will consider the comments we received and may conduct additional rulemaking based on the comments.

Background

7 CFR part 1773, Policy on Audits of RUS Borrowers and Grantees (Part 1773), implements the standard RUS security instrument provision requiring RUS electric and telecommunications borrowers and grantees to prepare and furnish to RUS, at least once during each 12-month period, a full and complete report of its financial condition, operations, and cash flows, in form and substance satisfactory to RUS; audited and certified by an independent audit organization, satisfactory to RUS, and accompanied by a report of such audit, in form and substance satisfactory to RUS. This rule is amended to include coverage of all grantees and the title of Part 1773 is revised to reflect this change.

This rule amends Part 1773 to incorporate the 2011 revisions to GAGAS by the GAO issued in December 2011. The 2011 revision contains major changes that reinforce the principles of transparency and accountability and provide the framework for high-quality government audits that add value. This revision to GAGAS incorporates the AICPA Statements on Auditing Standards. The 2011 revisions to GAGAS were effective for financial audits for periods ending on or after December 15, 2012.

The professional standards and guidance contained in GAGAS provide a framework for conducting high quality audits with competence, integrity, objectivity, and independence. These standards are used by auditors of entities that receive government awards and audit organizations performing GAGAS audits. GAGAS contains standards for audits as well as requirements and guidance dealing with ethics, independence, auditors' professional judgment and competence, quality control, performance of the audit, and reporting.

This rule amends Part 1773 to incorporate the clarified audit standards issued by the AICPA in October 2011. The purpose of redrafting the auditing standards was for clarity and convergence although there were some changes and additions in terms of requirements. The clarified standards also introduced new terminology and new audit reports by adding extra paragraphs and segregating sections of the report under subheadings.

In 2013, the Office of Management and Budget (OMB) revised uniform administrative requirements, cost principles, and audit requirements for Federal awards by issuing 2 CFR part 200, which served to consolidate and replace OMB Circulars A-21, A-87, A-89, A-102, A-110, A-122, and A-133. 2 CFR part 200 was adopted by USDA in December 2014. The portion of this CFR applicable to audits, Subpart F, is recognized and adopted by this revision to Part 1773.

This rule revises all subparts to encompass grantees, to remove most references to Rural Telephone Bank (RTB), to conform the language used to generally accepted auditing standards (GAAS) issued by the AICPA and GAGAS. This rule adds, changes or deletes definitions as appropriate to clarify certain existing information. Perhaps most importantly, this rule replaces the RUS management letter with a report on compliance with aspects of contractual agreements and regulatory requirements based on the requirements found in AU-C 806 of GAAS. This rule also provides information on the electronic filing of annual audits in § 1773.21. RUS is also adding a requirement to the reporting package for a schedule of findings and recommendations in § 1773.34.

Due to the state boards of accountancy having now adopted peer review requirements as part of the CPA licensing requirements for performing attestation services, this amended rule significantly streamlines the RUS peer review monitoring included in § 1773.5 by removing much of the guidance previously provided with regard to auditor participation in an approved peer review program. RUS will no longer require that all auditors submit copies of their peer review reports but reserves the right to request said reports on a case by case basis. It also removes the option of requesting a waiver of the peer review requirement, relying instead on the requirements of the state boards of accountancy and the guidance provided within the peer review programs themselves.

Due to the scope and pervasiveness of the revisions being implemented, Part 1773 as revised is being published in its entirety in this final rule.

In this revision to Part 1773, all sample reports and financial statements will be combined into four appendices which will be available in RUS Bulletin 1773-1, Policy on Audits of RUS Borrowers and Grantees. Appendix A of RUS Bulletin 1773-1 contains the sample reports, financial statements and schedule of findings and recommendations for electric borrowers; Appendix B contains similar samples for telecommunications borrowers; Appendix C for broadband borrowers; and Appendix D contains sample reports for grantees. Appendices A through D will not be printed in the Code of Federal Regulations; however, these appendices are available at https://www.regulations.gov/ for review and comment in conjunction with the comment period for this final rule. Only Subparts A through E will be published in the Code of Federal Regulations. The appendices are included in RUS Bulletin 1773-1, Policy on Audits of RUS Borrowers and Grantees, which contains all of Part 1773, including subparts A through E and the appendices. Publishing Part 1773 in bulletin form provides the RUS audit policy in an easy to read format. This publication is available on RUS' website at https://www.rd.usda.gov/publications/regulations-guidelines/rural-utilities-service-audit.

USDA Non-Discrimination Statement

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from public assistance programs, 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 https://www.ascr.usda.gov/filing-program-discrimination-complaint-usda-customer 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) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410;

(2) fax: (202) 690-7442; or

(3) email: [email protected]

USDA is an equal opportunity provider, employer, and lender.

List of Subjects in 7 CFR Part 1773

Accounting, Auditing, Electric power, Grants, Loan programs—broadband, Loan programs—communications, Loan programs—energy, Reporting and recordkeeping requirements, Rural areas, Telephone.

For the reasons set forth in the preamble, RUS revises 7 CFR part 1773 to read as follows: PART 1773—POLICY ON AUDITS OF RUS BORROWERS AND GRANTEES Subpart A—General Provisions Sec. 1773.1 General. 1773.2 Definitions. Subpart B—RUS Audit Requirements 1773.3 Annual audit. 1773.4 Auditee's responsibilities. 1773.5 Qualifications of an auditor. 1773.6 Auditor communication. 1773.7 Audit standards. 1773.8 Audit date. 1773.9 Disclosure of fraud and noncompliance with provisions of laws, regulations, contracts, and loan and grant agreements. 1773.10 Access to audit-documentation. 1773.11-1773.19 [Reserved] Subpart C—RUS Requirements for the Submission and Review of the Reporting Package 1773.20 The auditor's submission of the reporting package. 1773.21 Auditee's review and submission of the reporting package. 1773.22-1773.29 [Reserved] Subpart D—RUS Reporting Requirements 1773.30 [Reserved] 1773.31 Auditor's report on the financial statements. 1773.32 Report on internal control over financial reporting and on compliance and other matters. 1773.33 Report on compliance with aspects of contractual agreements and regulatory requirements. 1773.34 Schedule of findings and recommendations. 1773.35-1773.37 [Reserved] Subpart E—RUS Audit Requirements and Documentation 1773.38 Scope of engagement. 1773.39 Utility plant and accumulated depreciation. 1773.40 Regulatory assets. 1773.41 Extraordinary retirement losses. 1773.42 Clearing accounts. 1773.43 Capital and equity accounts. 1773.44 Long-term debt. 1773.45 Regulatory liabilities. 1773.46-1773.48 [Reserved] 1773.49 OMB Control Number. Authority:

7 U.S.C. 901 et seq., 7 U.S.C. 1921 et seq., 7 U.S.C. 6941 et seq.

Subpart A—General Provisions
§ 1773.1 General.

(a) This part implements the standards for audits required by the loan and grant agreements of Rural Utilities Service (RUS) electric and telecommunications borrowers and grantees. The provisions require auditees to prepare and furnish to RUS, at least once during each 12-month period, a full and complete report of its financial condition, operations, and cash flows, in form and substance satisfactory to RUS, audited and certified by an independent auditor, satisfactory to RUS, and accompanied by a report of such audit, in form and substance satisfactory to RUS.

(b) This part is based on the requirements of GAGAS in effect at the time of the audit and applicable RUS regulations and subpart F (Audit Requirements) of 2 CFR part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) (2 CFR 200.500-200.521).

(c) This part further sets forth the criteria for selecting auditors satisfactory to RUS and certain audit procedures and audit documentation that must be performed and prepared before an audit report will be accepted by RUS.

(d) Failure to provide an audit in compliance with this part is a serious violation of the RUS Security Agreement. RUS relies on audited financial statements in order to assess and monitor the financial condition of its borrowers and grantees and to fulfill its fiduciary responsibilities.

(e) RUS reserves the right to suspend its acceptance of audits performed by auditors who, in the opinion of RUS, are not meeting the requirements of this part or with unresolved disputes or issues until such time that the matter can be resolved to RUS' satisfaction.

§ 1773.2 Definitions.

As used in this part:

2 CFR part 200, subpart F means 2 CFR part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, subpart F, Audit Requirements, as adopted by USDA in 2 CFR part 400.

AA-PARA means RUS Assistant Administrator, Program Accounting and Regulatory Analysis.

Administrator means the Administrator of RUS.

Affiliated company means a company that directly or indirectly through one or more intermediaries, control or are controlled by, or are under common control with, the auditee.

AICPA means the American Institute of Certified Public Accountants.

ASC means the Accounting Standards Codification issued by the Financial Accounting Standards Board.

Audit means an examination of financial statements by an independent auditor for the purpose of expressing an opinion on the fairness with which those statements present financial position, results of operations, and changes in cash flows in accordance with accounting principles generally accepted in the United States of America (GAAP) and for determining whether the auditee has complied with applicable laws, regulations, and provisions of loan or grant contracts and grant agreements that could have a material effect on the financial statements.

Audit date means the “as of” date established by the auditee.

Audit documentation has the same meaning as defined in the AICPA's professional auditing standards.

Auditee means an RUS borrower and/or grantee that is required to submit an annual audit as a condition of the award.

Auditor means government auditors as well as certified public accounting firms that perform audits using generally accepted government auditing standards (GAGAS).

BCAS means Broadband Collection and Analysis System (or successor system).

Borrower means an entity that has an outstanding RUS or Federal Financing Bank (FFB) loan or loan guarantee.

CPA means a Certified Public Accountant.

DCS means the Data Collection System (or successor system).

FASB means Financial Accounting Standards Board.

FFB means the Federal Financing Bank, a body corporate and instrumentality of the United States of America under the general supervision of the Secretary of the Department of the Treasury.

Fraud has the same meaning as defined in the AICPA's professional auditing standards.

GAAP has the same meaning as defined in accounting standards issued by the Government Accounting Standards Board (GASB) and the Financial Accounting Standards Board (FASB).

GAGAS means generally accepted government auditing standards as set forth in Government Auditing Standards, issued by the Comptroller General of the United States, Government Accountability Office.

GAO means the United States Government Accountability Office.

GASB means Government Accounting Standards Board.

Governance board means the auditee's board of directors, managing members, or other official body charged with governance.

Grantee means an entity that has a continuing responsibility under a grant agreement with RUS.

Illegal act has the same meaning as defined by the Public Company Accounting Oversight Board.

Material weakness has the same meaning as defined in the AICPA's professional auditing standards.

OIG means the Office of the Inspector General, United States Department of Agriculture.

OMB means The Office of Management and Budget.

Regulatory asset means an asset resulting from an action of a regulator as defined by FASB.

Regulatory liability means a liability imposed on a regulated enterprise by an action of a regulator as defined by FASB.

Related party has the same meaning as defined by FASB.

Reporting package means:

(1) The auditor's report on the financial statements;

(2) The report on internal control over financial reporting and on compliance and other matters;

(3) The report on compliance with aspects of contractual agreements and regulatory requirements;

(4) The schedule of findings and recommendations; and

(5) All supplemental schedules and information required by this part.

RUS means the Rural Utilities Service, an agency of the United States Department of Agriculture.

RUS Bulletin 1773-1, Policy on Audits of RUS Borrowers and Grantees, is a publication prepared by RUS that contains the RUS regulation 7 CFR part 1773 and exhibits of sample audit reports, financial statements, reports on internal control over financial reporting and on compliance and other matters, report on compliance with aspects of contractual agreements and regulatory requirements, and schedule of findings and recommendations used in preparing audits of RUS borrowers and grantees. This bulletin is available on the internet at https://www.rd.usda.gov/publications/regulations-guidelines/bulletins/program-accounting.

RUS security agreement means a loan agreement, grant agreement, mortgage, security agreement, or other form of agreement that governs the terms and conditions of, or provides security for, loan and/or grant funds provided by RUS to the auditee.

Significant deficiency has the same meaning as defined in the AICPA's professional auditing standards.

Single Audit Act means Single Audit Act of 1984 (31 U.S.C. 7501 et seq.) as implemented by 2 CFR part 200, subpart F.

State means any state or territory of the United States, or the District of Columbia.

Uniform System of Accounts means, for telecommunications borrowers, Bulletin 1770B-1, Accounting Requirements for RUS Telecommunications Borrowers (https://www.rd.usda.gov/files/UTP_Bulletins_1770B-1.pdf), and for electric borrowers, as contained in 7 CFR part 1767, Accounting Requirements for RUS Electric Borrowers, subpart B—Uniform System of Accounts, Bulletin 1767B-1, (https://www.rd.usda.gov/files/UPA_Bulletin_1767B-1.pdf).

Subpart B—RUS Audit Requirements
§ 1773.3 Annual audit.

(a) Each auditee must have its financial statements audited annually by an auditor selected by the auditee and approved by RUS as set forth in § 1773.4. All auditees must submit audited financial statements on a comparative basis covering two consecutive 12 month periods, unless the entity has not been in existence for two consecutive 12-month audit periods. Consolidated statements of the parent are not an acceptable replacement for an audit of the auditee.

(b) Each auditee must establish an annual audit date within 12 months of the date of the first advance and must prepare annual financial statements for the audit date established. Each auditee must notify the AA-PARA of the audit date at least 90 days prior to the selected audit date.

(c) Auditees must furnish a reporting package to RUS within 120 days of the audit date. (See § 1773.21). Until all loans made or guaranteed by RUS are repaid and unliquidated obligations rescinded, auditees that are borrowers must continue to provide annual audited financial statements. Auditees that are grantees must furnish annual audited financial statements in the year of the first advance and until all funds have been advanced or rescinded, and all financial compliance requirements have been fully satisfied.

(d) In addition to the requirements of this part, certain auditees may be subject to the Single Audit Act. An auditee that is defined as a Non-Federal Entity as defined in 2 CFR 200.69 means a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient and is required to meet the requirements of this part as follows:

(1) Borrowers and/or grantees expending the threshold established for the Single Audit Act (currently $750,000) or more in Federal awards during the year must have an audit performed in accordance with the Single Audit Act. See 2 CFR 200.502, Basis For Determining Federal Awards Expended, for guidance in determining annual expenditures. The audited financial statements must be submitted to RUS and to the Federal Audit Clearinghouse.

(2) For auditees expending less than the threshold for expenditure in Federal awards during the year, RUS reserves its right under 2 CFR 200.503, Relationship to other audit requirements, to arrange for an audit performed in accordance with this part.

(3) Within 30 days of the audit date, auditees must notify the AA-PARA, in writing, of the total Federal awards expended during the year and must state whether the audit will be performed in accordance with the Single Audit Act, or this part.

(i) An auditee electing to comply with this part must select an auditor that meets the qualifications set forth in § 1773.5.

(ii) If an audit is performed in accordance with the Single Audit Act, the auditor's reporting on the financial statements that meet the requirements of the Single Audit Act, will be sufficient to satisfy the auditee's obligations under this part.

(e) Subpart F of 2 CFR part 200 does not apply to audits of RUS electric and telecommunications cooperatives and for-profit telecommunications borrowers unless the borrower has contractually agreed with another Federal agency (e.g. Federal Emergency Management Agency) to provide a financial audit performed in accordance with 2 CFR part 200, subpart F. In no circumstance will an auditee be required to submit separate audits performed in accordance with this part and 2 CFR part 200, subpart F.

§ 1773.4 Auditee's responsibilities.

(a) Selection of a qualified auditor. The auditee's governance board is responsible for the selection of a qualified auditor that meets the requirements set forth in § 1773.5. When selecting an auditor, the auditee should consider, among other matters:

(1) The qualifications of auditors available to do the work;

(2) The auditor's experience in performing audits of utilities, related industries, or in the case of grantees, experience in auditing entities comparable to the grantee; and

(3) The auditor's ability to complete the audit and submit the reporting package within 90 days of the audit date.

(b) Board approval of selection. The board's approval of an auditor must be recorded by a board resolution that states:

(1) The auditor represents that it meets RUS qualifications to perform an audit; and

(2) The auditee and auditor will enter into an audit engagement in accordance with § 1773.6.

(c) Notification of selection. When the initial selection or subsequent change of an auditor has been made, the auditee must notify the AA-PARA, in writing, at least 90 days prior to the audit date.

(1) Within 30 days of the date of receipt of such notice, RUS will notify the auditee, in writing, if the selection or change in auditor is not satisfactory.

(2) Notification to RUS that the same auditor has been selected for succeeding audits of the auditee's financial statements is not required; however, the procedures outlined in this part must be followed for each new auditor selected, even though such auditor may previously have been approved by RUS to audit records of other RUS auditees. Changes in the name of an auditor are considered to be a change in the auditor.

(d) Audit engagement letter. The auditee must enter into an audit agreement with the auditor that complies with § 1773.6 prior to the initiation of the audit.

(e) Debarment certification. The auditee must obtain, from the selected auditor, a lower tier covered transaction certification (Form AD-1048, Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions), as required by Executive Orders 12549 and 12689, Debarment and Suspension, and any rules or regulations issued thereunder.

(f) Peer review report. The auditee must obtain, from the selected auditor, a copy of the auditor's current approved peer review report.

(g) Preparation of schedules. The auditee must prepare any schedules that are required by the auditor to perform the audit, including a schedule of deferred debits and deferred credits and a detailed schedule of investments in subsidiary and affiliated companies accounted for on the cost, equity, or consolidated basis. The detailed schedule of investments can be included in the notes to the financial statements or as a separate schedule as long as all information required is adequately disclosed. Samples of these schedules can be found in Appendices A-D, of RUS Bulletin 1773-1.

(1) The schedule of deferred debits and deferred credits must include a description of the deferral and a notation as to whether the deferral has received written approval from RUS. If a determination is made that prior written approval is not required, cite the specific authority for the deferral.

(2) The schedule of investments must include investments in subsidiary and affiliated companies, corporations, limited liability corporations and partnerships, joint ventures, etc. accounted for on either the cost, equity or on a consolidated basis. For all investments, the auditee must list the name of the entity, ownership percentage, and the principal business in which the entity is engaged. For investments recorded on the cost basis, the auditee must include the original investment, advances, dividends declared or paid in the current and prior years and the net investment. For investments recorded on the equity or consolidated basis, the auditee must include the ownership percentage, original investment, advances, dividends declared or paid in the current and prior years, and current and prior years' earnings and losses, including accumulated losses in excess of the original investment.

(h) Scope limitations. The auditee will not limit the scope of the audit to the extent that the auditor is unable to provide an unqualified opinion that the financial statements are presented fairly in conformity with GAAP due to the scope limitation.

(i) Submission of reporting package. The auditee must submit to RUS the required reporting package as set forth in § 1773.21.

(1) A reporting package that fails to meet the requirements detailed in this part will be returned to the auditee with a written explanation of noncompliance.

(2) The auditee must, within 30 days of the date of the letter or email detailing the noncompliance, submit a corrected reporting package to RUS.

(3) If a corrected reporting package is not received within 30 days of the date of the letter or email detailing the noncompliance, RUS will take appropriate action, depending on the severity of the noncompliance.

(j) Submission of a plan of corrective action. If the auditor's report contains findings and recommendations but does not include the auditee's response, the auditee must submit written responses to RUS within 180 days of the audit date. The written responses must address:

(1) The corrective action already taken or planned, or the reason the auditee believes no action is necessary; and

(2) The status of corrective action taken on previously reported findings and recommendations.

§ 1773.5 Qualifications of the auditor.

Auditors that meet the qualifications criteria of this section and enter into an audit engagement with the auditee that complies with § 1773.6, will be considered satisfactory to RUS.

(a) Licensing. Auditors that audit the financial statements of an RUS auditee must be licensed to perform attestation engagements in the United States of America. Auditors do not have to be licensed by the state in which the auditee is located; however, auditors must abide by the rules and regulations of professional conduct promulgated by the accountancy board of the state in which the auditee is located.

(b) Independence. Auditors must be independent as determined by the standards for independence in the AICPA Code of Professional Conduct and in GAGAS in effect at the time of the audit.

(c) Peer review requirement. Auditors must be enrolled and participating in a peer review program, and must have undergone a satisfactory peer review of their accounting and audit practice. The peer review must be in effect at the date of the audit report opinion.

(1) Peer review reports. RUS reserves the right to request peer review reports from selected auditors.

(2) Peer review requirements for new auditors. New auditing firms must meet the requirements of their state board of accountancy with regard to enrolling in a peer review program, timing of the first peer review, and any other peer review requirements.

§ 1773.6 Auditor communication.

(a) GAGAS and AICPA standards require that the auditor communicate with the auditee the auditor's understanding of the services to be performed and document that understanding through a written communication to those charged with governance. To be acceptable to RUS, the auditor's communication must take the form of an audit engagement letter prepared by the auditor and must be formally accepted by the governance board or an audit committee representing the governance board. In addition to the requirements of the AICPA's professional auditing standards and GAGAS, the engagement letter must also include the following:

(1) The nature of planned work and level of assurance to be provided related to internal control over financial reporting and compliance with laws, regulation, and provision of contracts or grant agreements;

(2) That the auditee and auditor acknowledge that the audit is being performed and that the reporting package is being issued to enable the auditee to comply with the provisions of RUS's security instrument which requires compliance with this part;

(3) That the auditor acknowledges the mandatory reporting requirements for fraud, illegal acts, or noncompliance with provisions of laws, regulations, contracts, and grant agreements in § 1773.9. Acceptance of the engagement letter by the auditee is required, thus granting the auditor permission to directly notify the appropriate officials which may include but is not limited to the governance board, RUS, and OIG;

(4) That the auditor acknowledges that it is required under § 1773.7 to contact RUS if the auditor is unable to resolve scope limitations imposed by the auditee, or if such limitations in scope violate this part. Acceptance of the engagement letter by the auditee is required, thus granting the auditor permission to directly notify the AA-PARA as needed;

(5) That the auditee and auditor acknowledge that RUS will consider the auditee to be in violation of its RUS Security Agreement and this part if the auditee fails to have an audit performed and documented in compliance with GAGAS and this part;

(6) That the auditor represents that it meets the requirements under this part to perform the audit;

(7) That the auditor will perform the audit and will prepare the reporting package in accordance with the requirements of this part;

(8) That the auditor will document the audit work performed in accordance with GAGAS, and the requirements of this part; and

(9) That the auditor will make all audit documentation, including the reporting package available to RUS or its representatives (including but not limited to OIG and GAO), upon request, and will permit the photocopying of all such audit documentation.

(b) A copy of the audit engagement letter must be available at the auditee's office for inspection by RUS personnel. One copy of the current audit engagement letter must be maintained in the auditor's audit documentation.

§ 1773.7 Audit standards.

(a) The audit of the financial statements must be performed in accordance with GAGAS and this part in effect at the audit date unless the auditee is directed otherwise, in writing, by RUS.

(b) The audit of the financial statements must include such tests of the accounting records and such other auditing procedures that are sufficient to enable the auditor to express an opinion on the financial statements and to issue the required reporting package.

(c)(1) The auditee will not limit the scope of the audit to the extent that the auditor is unable to meet RUS audit requirements without prior written approval of the AA-PARA.

(2) If the auditor determines during the audit that an unqualified opinion cannot be issued due to a scope limitation imposed by the auditee, the auditor should use professional judgment to determine what levels of the auditee's management and/or those charged with governance should be informed.

(3) After informing the auditee's management and/or those charged with governance, if the scope limitation is not adequately resolved, the auditor should immediately contact the AA-PARA.

§ 1773.8 Audit date.

(a) The annual audit must be performed as of the end of the same calendar month each year unless prior approval to change the audit date is obtained, in writing, from RUS.

(1) An auditee may request a change in the audit date by writing to the AA-PARA at least 60 days prior to the currently approved audit date, providing justification for the change.

(2) The time period between the prior audit date and the newly requested audit date must be no longer than twenty-three months.

(3) Comparative financial statements must be prepared and audited for the 12 months ending as of the new audit date and for the 12 months immediately preceding that period.

§ 1773.9 Disclosure of fraud, and noncompliance with provisions of laws, regulations, contracts, and loan and grant agreements.

(a) In accordance with GAGAS, the auditor is responsible for planning and performing the audit to provide reasonable assurance about whether the financial statements are free of material misstatement due to error or fraud. The auditor must also plan the audit to provide reasonable assurance of detecting material misstatements resulting from violations of provisions of laws, regulations, contracts or loan and grant agreements that could have a direct and material effect on the financial statements.

(b) If specific information comes to the auditor's attention that provides evidence concerning the existence of possible violations of provisions of laws, regulations, contracts or loan and grant agreements that could have a material indirect effect on the financial statements, the auditor should apply audit procedures specifically directed to ascertaining whether a violation of provisions of laws, regulations, contract or grant agreements has occurred.

(c) Pursuant to the terms of its audit engagement letter with the auditee, the auditor must immediately report, in writing, all instances of fraud, illegal acts, and all indications or instances of noncompliance with laws, whether material or not, to:

(1) The president of the auditee's governance board;

(2) AA-PARA; and

(3) OIG, as follows:

(i) For all audits performed in accordance with § 1773.3(d) (audits conducted in accordance with 2 CFR part 200 “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”), report to the USDA-OIG-Audit, National Single Audit Coordinator for USDA, 401 W. Peachtree St NW, Room 2328, Atlanta, GA 30308,

(ii) For all other audits conducted in accordance with § 1773.3 report to the appropriate office based on location. See https://www.usda.gov/oig/national.htm to determine the correct reporting location.

§ 1773.10 Access to audit documentation.

Pursuant to the terms of this part and the audit engagement letter, the auditor must make all audit documentation available to RUS, or its designated representative, upon request and must permit RUS, or its designated representative, to photocopy all audit documentation.

§§ 1773.11-1773.19 [Reserved]
Subpart C—RUS Requirements for the Submission and Review of the Reporting Package
§ 1773.20 The auditor's submission of the reporting package.

(a) Time limit. Within 90 days of the audit date, the auditor must deliver the reporting package to the auditee's governance board. At a minimum, copies should be provided for each member of the governance board and the manager. The auditor must also provide an electronic copy of the audit which meets the requirements of § 1773.21 for subsequent transmittal to RUS.

(b) Communication with the governance board. In addition to providing sufficient copies of the reporting package for each member of the auditee's governance board, RUS requires that the auditor report all audit findings to the auditee's governance board. RUS recommends that audit findings also be communicated orally unless oral communication would not be adequate. If the information is communicated orally, the auditor must document the communication by appropriate memoranda or notations in the audit documentation. If the auditor communicates in writing, a copy of the written communication must be included in the auditor's audit documentation.

(c) Matters to be communicated. Matters communicated to those charged with governance must include, but are not limited to the matters to be communicated as prescribed in the AICPA's professional standards AU-C Section 260, “The Auditor's Communication with Those Charged with Governance”.

§ 1773.21 Auditee's review and submission of the reporting package.

(a) The auditee's governance board should note and record receipt of the reporting package and any action taken in response to the reporting package in the minutes of the board meeting at which such reporting package is presented.

(b) The auditee must furnish RUS with an electronic copy of the reporting package within 120 days of the audit date as provided for in § 1773.3.

(c) The auditee must furnish AA-PARA with a copy of its plan for corrective action, if any, within 180 days of the audit date.

(d) The auditee must include in the reporting package a copy of each special report, summary of recommendations or similar communications, if any, received from the auditor as a result of the audit.

(e) All required submissions to RUS described in paragraphs (b) through (d) of this section should be furnished electronically. The electronic copy must be provided in a Portable Document Format (PDF). Auditees with a designation from 0001 through 0199 in the Electric program and 500 through 699 in the Telecommunications programs shall upload the reporting package to the DCS or its successor system. Borrowers and/or grantees with a designation from 1100 through 1199, 1300 through 1399, and 1400 through 1499 in the Broadband program shall upload the reporting package to the BCAS or its successor system. All other borrowers and/or grantees may upload their reporting package through DCS or its successor system. Specific instructions for submission are available from the Technical Accounting and Auditing Staff.

§§ 1773.22-1773.29 [Reserved]
Subpart D—RUS Reporting Requirements
§ 1773.30 [Reserved]
§ 1773.31 Auditor's report on the financial statements.

The auditor must prepare a written report on comparative balance sheets, statements of revenue and patronage capital (or statement of operations customary to the type of entity reporting) and statements of cash flows. The report must include the manual or printed signature of the auditor, cover all statements presented, and refer to the separate report on internal controls over financial reporting and on compliance and other matters and the report on compliance with aspects of contractual agreements and regulatory requirements issued in conjunction with the auditor's report on the financial statements. The auditor's report on the financial statements should also state that the report on internal controls over financial reporting and on compliance and other matters is an integral part of a GAGAS audit, and in considering the results of the audit, that this report should be read along with the auditor's report on the financial statements.

§ 1773.32 Report on internal control over financial reporting and on compliance and other matters.

(a) As required by GAGAS, the auditor must prepare a written report describing the scope of the auditor's testing of internal control over financial reporting and of compliance with provisions of laws, regulations, contracts, and loan and grant agreements, and that the tests provided sufficient, appropriate evidence to support opinions on the effectiveness of internal control and on compliance with provisions of laws, regulations, contracts, and loan and grant agreements. This report must include the manual or printed signature of the auditor and must include the following items as appropriate:

(1) Significant deficiencies and material weaknesses in internal control;

(2) Instances of fraud and noncompliance with provisions of laws or regulations that have a material effect on the audit and any other instances that warrant the attention of those charged with governance;

(3) Noncompliance with provisions of contracts or grant agreements that have a material effect on the audit; and

(4) Abuse that has a material effect on the audit.

(b) When the auditor detects instances of noncompliance or abuse that have an effect on the financial statements that are less than material but warrant the attention of those charged with governance, they should communicate those findings in writing to those charged with governance in a separate communication. If the auditor has issued a separate communication detailing immaterial instances of noncompliance or abuse, the report on internal controls over financial reporting and on compliance and other matters must be modified to include a statement such as:

“We noted certain immaterial instances of noncompliance [and/or abuse], which we have reported to the management of (auditee's name) in a separate letter dated (month, day, 20XX).”

(c) If the auditor has issued a separate letter to management to communicate other matters involving the design and operation of the internal control over financial reporting, the report on internal controls over financial reporting and on compliance and other matters must be modified to include a statement such as:

“However, we noted other matters involving the internal control over financial reporting that we have reported to the management of (auditee's name) in a separate letter dated (month, day, 20XX).”

(d) The report must contain the status of known but uncorrected deficiencies from prior audits that affect the current audit objective.

§ 1773.33 Report on compliance with aspects of contractual agreements and regulatory requirements.

The auditor must prepare a report on compliance with aspects of contractual agreements and regulatory requirements that includes, at a minimum, comments on:

(a) Audit procedures. State whether the audit has been performed in accordance with this part;

(b) Special reports. State whether any special reports, summaries of recommendations, or similar communications were furnished to the auditee's management during the course of the audit or during interim audit work, and provide a description of the information furnished;

(c) Accounting and records. Comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the auditee did not maintain adequate and effective accounting procedures and records and utilize adequate and fair methods for accumulating and recording labor, material, and overhead costs, and for distributing these costs to construction, retirement, and maintenance or other expense accounts. Where appropriate, comment on whether anything came to the auditor's attention to indicate that the auditee did not:

(1) Establish continuing property records (CPRs) that are updated on a current basis, at least annually, and are reconciled with the controlling general ledger plant accounts;

(2) Promptly clear construction clearing accounts of costs of completed construction to the proper classified plant accounts and accrue depreciation on such completed construction from the date the plant was placed in service;

(3) Currently and systematically record and properly price retirements of plant;

(4) Properly account for the accumulated provision for depreciation accounts associated with retirements of plant or properly disclose any unusual charges or credits to such accounts; and

(5) Obtain RUS approval for the sale, lease or transfer of capital assets secured under the RUS security agreement when approval is required, and properly handle any proceeds from the sale or lease of plant, material or scrap in conformance with RUS requirements.

(d) Materials control. Comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the control over materials and supplies was not adequate.

(e) Compliance with RUS loan and security instrument provisions. Comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the following provisions of RUS' loan and security instruments have not been complied with:

(1) For electric auditees, provisions related to:

(i) The requirements for an auditee to obtain written approval of mortgagees to enter into any contract for the management, operation, or maintenance of the auditee's system if the contract covers all or substantially all of the electric system. For purposes of this part, the following contracts shall be deemed as requiring RUS approval:

(A) Management contracts in which the auditee has contracted to have another auditee or other entity manage its affairs;

(B) Operations and maintenance contracts in which the auditee has contracted to have another auditee or other entity operate and/or maintain all or substantially all of the physical plant facilities of the auditee.

(C) Operations and maintenance contracts in which the auditee has contracted to operate and maintain the physical plant facilities of another auditee or other utility system;

(ii) The requirement for an auditee to prepare and furnish mortgagees annual or periodic financial and operating reports on the auditee's financial condition and operations accurately and within the required deadlines. The auditor shall comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the information represented by the auditee as having been submitted to RUS in its most recent December 31 Financial and Operating Report Electric Distribution or Financial and Operating Report Electric Power Supply was not in agreement with the auditee's audited records. If the auditee represents that an amended report has been filed as of December 31, the comments must relate to the amended report; and

(iii) The requirement for an auditee to use depreciation rates that are within the ranges established by RUS for each primary plant account (See RUS Bulletin 183-1, Depreciation Rates and Procedures at https://www.rd.usda.gov/files/UPA_Bulletin_183-1.pdf), or with the requirements of the state regulatory body having jurisdiction over the auditee's depreciation rates in computing monthly accruals.

(2) For telecommunications auditees, provisions related to:

(i) The requirement for an auditee to obtain written approval of the mortgagees to enter into any contract, agreement or lease between the auditee and an affiliate other than as allowed under 7 CFR part 1744, subpart E; and

(ii) The requirement for an auditee to prepare and furnish mortgagees annual or periodic financial and operating reports on the auditee's financial condition and operations accurately and within the required deadlines. The auditor shall comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the information represented by the auditee as having been submitted to RUS in its most recent December 31 Operating Report for Telecommunications Borrowers was not in agreement with the auditee's audited records. If the auditee represents that an amended report has been filed as of December 31, the comments must be related to the amended report.

(3) For Broadband auditees, provisions relating to the requirement for an auditee to prepare and furnish mortgagee quarterly or periodic financial and operating reports on the auditee's financial condition and operations accurately and within the required deadlines. The auditor shall comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the information represented by the auditee as having been submitted to RUS in its most recent BCAS filing was not in agreement with the auditee's audited records. If the auditee represents that an amended report has been filed, the comments must be related to the amended report.

(4) For grantees, provisions related to:

(i) Recipients of Broadband Initiatives Program loans and grants, the requirement for the recipient to prepare and furnish RUS quarterly and annual financial and operating reports on the financial condition and operations of the auditee accurately and within the required deadlines. The auditor shall comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the information represented by the auditee as having been submitted to RUS in its most recent BCAS filing was not in agreement with the audited records of the auditee. If the auditee represents that an amended report has been filed, the comments must relate to the amended report. The auditor must state whether the Annual Compliance Certificate required by the RUS Security Agreement has been filed in a timely manner with RUS.

(ii) Recipients of all other grant programs within the electric and telecommunications programs, the requirements to prepare and furnish RUS with any required financial reporting accurately and within required deadlines, as appropriate for that specific program. The auditor shall comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the information represented by the grantee as having been submitted to RUS in its most recent filing was not in agreement with the audited records of the grantee. If the grantee represents that an amended report has been filed, the comments must relate to the amended report.

(f) Related party transactions. Comment on whether, during the course of the audit, anything came to the attention of the auditor to indicate that all material related party transactions have not been disclosed in the notes to the financial statements in accordance with ASC 850, entitled “Related Party Disclosures”.

(g) Deferred debits and deferred credits. For electric auditees, comment on whether, during the course of the audit anything came to the attention of the auditor to indicate that the auditee provided detailed schedule of deferred debits and deferred credits, including, but not limited to, margin stabilization plans, revenue deferral plans, and expense deferrals is not accurately presented. This schedule must be included as supplemental information or within the notes to the financial statements; and

(h) Investments. For electric and telecommunications auditees, comment on whether, during the course of the audit, anything came to the auditor's attention to indicate that the auditee provided detailed schedule of investments is not accurately presented. This schedule must be included as supplemental information or within the notes to the financial statements. The auditor must state that the audit did not disclose any investments in subsidiary or affiliated companies.

§ 1773.34 Schedule of findings and recommendations.

The auditor must prepare a schedule of findings and recommendations to be included with the audited financial statements. The schedule of findings and recommendations shall be developed and presented utilizing the elements of a finding discussed in GAGAS and shall include recommendations for remediation. If the schedule does not include responses from management, as well as any planned corrective actions, those items must be submitted directly to the AA-PARA by management in accordance with § 1773.4(j).

§§ 1773.35-1773.37 [Reserved]
Subpart E—RUS Audit Requirements and Documentation
§ 1773.38 Scope of engagement.

The audit requirements set forth in § 1773.39 through 1773.45 must be met annually by the auditor during the audit of the RUS auditee's financial statements. The auditor must exercise professional judgment in determining whether any auditing procedures in addition to those mandated by GAGAS or this part should be performed on the auditee's financial records in order to afford a reasonable basis for rendering the auditor's report on the financial statements, report on internal controls over financial reporting and on compliance and other matters, report on compliance with aspects of contractual agreements and regulatory requirements, and schedule of findings and recommendations.

§ 1773.39 Utility plant and accumulated depreciation.

(a) General. The audit of these accounts shall include tests of additions, replacements, retirements, and changes. The auditor's audit documentation shall support that the auditor:

(1) Examined direct labor and material transactions to determine whether the auditee's accounting records reflect a complete accumulation of costs;

(2) Examined indirect costs and overhead charges to determine if they conform to the Uniform System of Accounts or the Federal Acquisitions Regulations as required under the RUS Security Agreement;

(3) Reviewed the costs of completed construction and retirement projects to determine if they were cleared promptly from the work in progress accounts to the classified plant in service accounts and the related depreciation accounts;

(4) Examined direct purchases of special equipment and general plant;

(5) Determined the degree of accuracy and control of costing retirements, including tests of salvage and removal costs;

(6) Reviewed the auditee's work order procedures; and

(7) Reviewed depreciation rates for adequate support, and compared them to RUS guidelines to determine that they were in compliance.

(b) Construction work in progress. (1) The audit documentation shall include a summary of open work orders reconciled to the general ledger and note on the summary any unusual or atypical projects.

(2) The auditor's audit documentation shall support that the auditor:

(i) Reviewed equipment purchases charged to work orders, including payments and receiving reports;

(ii) Reviewed contracts showing the scope of the work, the nature of the contract, the contract amount, and scheduled payments and reviewed supporting documents to determine that services contracted for were in fact rendered;

(iii) Reviewed time cards and pay rates for a sample of employees who allocate their time to work orders;

(iv) Reviewed the nature of material and supplies issued to the project, traced amounts and quantities to supporting documents, and reviewed the reasonableness of clearing rates for assignment of stores expense to the work order;

(v) Reviewed the accuracy of the computation of overheads applied to the work order; and

(vi) Reviewed other costs charged to the work order for support and propriety.

(3) The auditor's audit documentation shall support that the auditor:

(i) Scheduled payments to contractors and traced to verify payments and supporting invoices;

(ii) Traced contract costs to final closeout documents, to the general ledger, and to the continuing property records; and

(iii) Verified the costs of owner furnished materials, if applicable.

(4) The auditor shall review the auditee's procedures for unitization and classification of work order and contract costs. The auditor's audit documentation shall support that the auditor:

(i) Reviewed the tabulation of record units for construction from the work order staking sheets to the tabulation of record units, to the unitization sheets, and to the continuing property records;

(ii) Reviewed the procedures for unitizing and distributing costs of completed construction to the plant accounts;

(iii) Verified that standard costs were being used;

(iv) Evaluated the basis for development of standard costs; and

(v) Determined that costs of completed construction were cleared promptly from work in progress accounts.

(c) Continuing property records. The auditor's audit documentation shall support that the auditor:

(1) Determined whether the subsidiary plant records agree with the controlling general ledger plant accounts;

(2) Noted differences in the audit documentation; and

(3) Commented, in the report on compliance with aspects of contractual agreements and regulatory requirements, on any discrepancies.

(d) Retirement work-in-progress. The auditor's audit documentation shall support that the auditor:

(1) Determined that plant retirements are currently and systematically recorded and priced on the basis of the continuing property records, and determined that costs of removal have been properly accounted for;

(2) Explained the method used in computing the cost of units of plant retired if continuing property records have not been established and determined whether costs appeared reasonable; and

(3) Determined the manner in which net losses due to retirements were accounted for and traced clearing entries to the depreciation reserve, the plant accounts, and the continuing property records.

(e) Provision for accumulated depreciation. The auditor's audit documentation shall support that the auditor:

(1) Verified the depreciation accruals for the period, including the depreciation base;

(2) Reviewed the basis of the depreciation rates, any change in rates and the reason for the change, and, if appropriate, determined whether the rates are in compliance with RUS requirements or with the requirements of the state regulatory body having jurisdiction over the auditee's depreciation rates;

(3) Reviewed salvage and removal costs; and

(4) Searched for unrecorded retirements.

(f) Other reserves. The auditor's audit documentation shall include an account analysis for all other material plant reserves, such as the reserve for the amortization of plant acquisition adjustments. The auditor's audit documentation shall support that appropriate tests of transactions were performed.

(g) Narrative. The auditor shall include in the audit documentation a comprehensive narrative on the scope of work performed, observations made, and conclusions reached. Matters covered in this narrative shall include:

(1) The nature of construction and other additions;

(2) The control over, and the accuracy of pricing retirements;

(3) The accuracy of distributing costs to classified utility plant accounts;

(4) An evaluation of the method of:

(i) Capitalizing the direct loadings on labor and material costs;

(ii) Distributing transportation costs and other expense clearing accounts; and

(iii) Capitalizing overhead costs;

(5) The tests of depreciation;

(6) A review of agreements such as those relating to acquisitions, property sales, and leases which affect the plant accounts; and

(7) Notations, if applicable, of RUS approval of property sales and the propriety of the disposition of the proceeds.

§ 1773.40 Regulatory assets.

The auditor's audit documentation shall support that the auditor tested whether all regulatory assets comply with the requirements of ASC 980. For Electric auditees only, the auditor's audit documentation shall support that all regulatory assets have received RUS approval.

§ 1773.41 Extraordinary retirement losses.

The auditor's audit documentation shall support that the auditor tested retirement losses, including any required approval by a regulatory commission with jurisdiction in the matter, or RUS, in the absence of commission jurisdiction.

§ 1773.42 Clearing accounts.

The auditor's audit documentation shall support that the auditor tested all clearing accounts and that transactions selected for testing were reviewed for proper allocation between expense and capital accounts.

§ 1773.43 Capital and equity accounts.

(a) Capital stock. For privately owned companies, the audit documentation shall include analyses of all stock transactions during the audit period. The auditor's audit documentation shall support that the auditor:

(1) Reviewed the subsidiary records and reconciled them to the general ledger control account;

(2) Reviewed authorizations and issuances or redemptions of capital stock for proper approvals by the governance board, stockholders, regulatory commissions and RUS, as required;

(3) Determined that transactions were made in accordance with the appropriate provisions of the articles of incorporation, bylaws, and RUS loan documents; and

(4) Determined that transactions were recorded in accordance with the Uniform System of Accounts.

(b) Memberships. For cooperative organizations, the audit documentation shall include an analysis of the membership transactions during the audit period. The auditor's audit documentation shall support that the auditor:

(1) Reviewed the subsidiary records and reconciled them to the general ledger control account; and

(2) Determined that transactions were made in accordance with the appropriate provisions of the articles of incorporation, bylaws, and RUS loan documents.

(c) Patronage capital, retained earnings, margins, and other equities. The audit documentation shall include an analysis of the patronage capital, retained earnings, margins and other equities, and any related reserve accounts. The auditor's audit documentation shall support that the auditor:

(1) Determined that the transactions were made in accordance with the appropriate provisions of the articles of incorporation, bylaws, RUS loan documents, Uniform System of Accounts, or orders of regulatory commissions;

(2) Traced payments to underlying support; and

(3) Determined whether, under the terms of the RUS security instrument, restrictions of retained earnings or margins are required and, if so, whether they have been properly recorded.

§ 1773.44 Long-term debt.

The auditor's audit documentation shall support that the auditor:

(a) Confirmed RUS, FFB, and RTB debt to the appropriate confirmation schedule (RUS Form 690, Confirmation Schedule Obligation to the FFB; Form 614, Confirmation Schedule—Long-term Obligation to RUS; or, Confirmation Schedule for RTB Debt);

(b) Confirmed other long-term debt directly with the lender;

(c) Examined notes executed or cancelled during the audit period; and

(d) Tested accrued interest computations.

§ 1773.45 Regulatory liabilities.

The auditor's audit documentation shall support that all regulatory liabilities comply with the requirements of ASC 980. For electric auditees only, the auditor's audit documentation shall document whether all regulatory liabilities have received RUS approval.

§§ 1773.46-1773.48 [Reserved]
§ 1773.49 OMB Control Number.

The information collection requirements in this part are approved by the Office of Management and Budget (OMB) and assigned the OMB Control Number 0572-0095.

Date: April 30, 2018. Kenneth L. Johnson, Administrator, Rural Utilities Service.
[FR Doc. 2018-09501 Filed 5-4-18; 8:45 am] BILLING CODE P
SMALL BUSINESS ADMINISTRATION 13 CFR Part 120 RIN 3245-AG79 Debt Refinancing in 504 Loan Program AGENCY:

U.S. Small Business Administration.

ACTION:

Final rule.

SUMMARY:

This rule finalizes the interim final rule (IFR) that was published on May 25, 2016, to implement the debt refinancing program reauthorized by Section 521 of Division E of the Consolidated Appropriations Act, 2016. In response to comments received on the IFR, this final rule makes some additional revisions to the program's regulations with respect to the definition of Qualified debt, the requirements related to Eligible Business Expenses, the refinancing of Projects involving single or limited use properties, and the disbursement period.

DATES:

This rule is effective June 6, 2018.

FOR FURTHER INFORMATION CONTACT:

Linda Reilly, 504 Program Chief at [email protected] or 202-205-9949.

SUPPLEMENTARY INFORMATION: I. Background Information

The 504 Loan Program is an SBA financing program authorized under Title V of the Small Business Investment Act of 1958 (the “SBIAct”), 15 U.S.C. 695 et seq. The core mission of the 504 Loan Program is to provide long-term financing to small businesses for the purchase or improvement of land, buildings, and major equipment, in an effort to facilitate the creation or retention of jobs and local economic development. Under the 504 Loan Program, loans are made to small business applicants by Certified Development Companies (“CDCs”), which are certified and regulated by SBA to promote economic development within their community. In general, a project in the 504 Loan Program (a “504 Project”) includes: A loan obtained from a private sector lender with a senior lien covering at least 50 percent of the project cost; a loan obtained from a CDC (a “504 Loan”) with a junior lien covering up to 40 percent of the total cost (backed by a 100 percent SBA-guaranteed debenture); and a contribution from the Borrower of at least 10 percent equity.

The Small Business Jobs Act of 2010 (the “Jobs Act”), Public Law 111-240, 124 Stat. 2504, enacted on September 27, 2010, temporarily expanded the ability of a small business to use the 504 Loan Program to refinance certain qualifying debt. Prior to the Jobs Act, a 504 Project could include a refinancing component only if the project involved an expansion of the small business and the existing indebtedness did not exceed 50% of the project cost of the expansion. See 13 CFR 120.882(e). The temporary Jobs Act program authorized the use of the 504 Loan Program for the refinancing of debt where there is no expansion of the small business concern (the “Debt Refinancing Program”). That program expired on September 27, 2012.

Section 521 of Division E of the Consolidated Appropriations Act, 2016 (the “2016 Act”), Public Law 114-113, enacted on December 22, 2015, reauthorized the Debt Refinancing Program with three modifications:

(1) The Debt Refinancing Program shall be in effect only in those fiscal years during which the cost to the Federal Government of making guarantees under the Debt Refinancing Program and under the 504 Loan Program is zero;

(2) A CDC is required to limit its financings under the 504 Loan Program so that, during any fiscal year, new financings under the Debt Refinancing Program do not exceed 50% of the dollars the CDC loaned under the 504 Loan Program during the previous fiscal year. The 2016 Act provides that this limitation may be waived by SBA upon application by a CDC and after determining that the refinance loan is needed for good cause; and

(3) The alternate job retention goal authorized by the Jobs Act for the Debt Refinancing Program is eliminated.

On May 25, 2016, SBA published an interim final rule to implement the 2016 Act (81 FR 33123) and, with the “zero cost” requirement satisfied for fiscal year 2016, SBA began accepting applications for assistance under the Debt Refinancing Program on June 25, 2016, the effective date of the interim final rule. With the “zero cost” requirement satisfied for fiscal years 2017 and 2018, the Debt Refinancing Program has continued to be in effect without interruption. The regulations governing this program are found at 13 CFR 120.882(g).

II. Summary of Comments Received

SBA received 49 comments during the comment period for the interim final rule, which closed on July 25, 2016. Of the comments received, 44, or 90%, were from Certified Development Companies, one was from a trade association, one was from a law firm, one was from a commercial real estate broker, one was from a financial institution, and one was from a private citizen. Below is a summary of the comments received.

A. Definition of Qualified Debt—Section 120.882(g)(15)

The Jobs Act authorizes the refinancing of “Qualified Debt” which is defined to mean, among other factors, “indebtedness” that “was incurred not less than 2 years before the date of the application for assistance”, that “is a commercial loan”, and the proceeds of which were used to acquire an Eligible Fixed Asset. See section 502(7)(C)(III)(aa)(AA), (BB), and (DD) of the SBIAct. In imposing the two-year requirement, Congress clearly did not want the Debt Refinancing Program to apply to new loans (i.e., loans less than two years old). In implementing this statutory requirement, the current regulations define “Qualified debt”, in part, as a “commercial loan . . . [t]hat was incurred not less than 2 years before the date of the application for the refinancing available under [the 504 Debt Refinancing Program]”. See 13 CFR 120.882(g)(15) (definition of “Qualified debt”). Debt that was refinanced through the execution of a new Note within the two year period would not be considered Qualified debt under the current regulations.

Twenty-nine commenters requested that the definition of Qualified debt be revised to include debt that has been refinanced within the 2 years prior to the date of the 504 Debt Refinancing application. The commenters argue that, as long as the debt being refinanced was originally incurred more than 2 years before application, it falls under the statutory definition. Some of the commenters also contend that the term “indebtedness” is broader than the term “commercial loan”, and that SBA should look to the date of the “original” indebtedness and not the date that the loan was refinanced. One commenter suggested that a refinancing within two years of the application date that extends the date of the balloon payment should be allowed if the borrower did not receive any additional funds with the new loan.

SBA has reconsidered this issue and agrees that it is appropriate to consider the substance of the refinancing, rather than the form (i.e., whether the most recent debt is evidenced by a new Note), to determine whether it is the same “indebtedness” as the prior loan. SBA has concluded that certain loans that are refinanced within two years of the date of application (the resulting loan herein referred to as the “most recent loan”) may qualify as the same indebtedness, but only if the most recent loan is, in effect, a replacement for the prior loan. Specifically, in order to be considered the same indebtedness, the most recent loan cannot have advanced any additional funds to the Borrower (other than to pay the closing costs of the refinancing). SBA is revising the definition of “Qualified debt” to reflect that SBA will consider the most recent loan to be the same indebtedness as the prior loan if the effect of the most recent loan was to extend the prior loan's maturity date without advancing any additional proceeds to the Borrower. The collateral for the most recent loan must also include, at a minimum, the same Eligible Fixed Asset(s) that served as collateral for the prior loan that was refinanced. (Other terms of the most recent loan, however, such as interest rate or amortization schedule, may be different and may also include the addition of other eligible collateral.) In order to ensure that the Debt Refinancing Program complies with the statutory prohibition against refinancing new indebtedness, CDCs must submit to SBA as part of the application copies of the most recent loan and lien instruments, as well as copies of the loan and lien instruments for the loan that was replaced by the most recent loan, to show that the effect of the most recent loan was to extend the prior loan's maturity date without advancing any additional funds to the Borrower (other than to pay the closing costs of the refinancing).

In addition, SBA received comments relating to the statutory requirement that the applicant be current on all payments due for not less than one year preceding the date of application. See section 502(7)(C)(III)(bb) of the SBIAct. The current regulations define “current on all payments due” to mean that “no payment was more than 30 days past due from either the original payment terms or modified payment terms (including deferments) if such modification was agreed to in writing by the Borrower and the lender of the existing debt no less than one year preceding the date of application.” See 13 CFR 120.882(g)(15) (definition of “Qualified debt”, ¶ (vii)). In the Interim Final Rule published on May 25, 2016, SBA explained that it established the requirement that the modification be executed no less than one year preceding the 504 application because a debt should not be considered “current on all payments due for not less than one year preceding the date of application” if the payment terms were modified during the one year period. This requirement was imposed, in part, to ensure that the Debt Refinancing Program would not be used to refinance loans that had been modified for the sole purpose of avoiding a delinquency or default within the prior year.

Some commenters requested that SBA allow a modification (including through a renewal or extension) within the one year period when the purpose of the modification is to extend a balloon payment. SBA has reconsidered this issue and agrees that modifications that extend the maturity date of the loan may be allowed, provided that, during the one year period prior to the date of application (i.e., in the months prior to and after the modification), the applicant is current on all payments due, there have been no deferments of any payments, and no additional proceeds were advanced through the modification. To conform the current regulation to this revision, SBA is removing the reference to deferments from the regulatory text.

In addition, as SBA is now allowing certain refinanced loans to satisfy the 2-year indebtedness requirement described in ¶ II.A. above, these refinanced loans should not be excluded from the definition of “current on all payments due for not less than one year preceding the date of application” merely because the refinance occurred within the year prior to application. Thus, SBA will allow a refinanced loan to satisfy the “current on all payments due” requirement provided that it satisfies the same requirements as a modified loan, including that, during the one year period prior to the date of application (i.e., in the months prior to and after the refinancing), the applicant was current on all payments due, there were no deferments of any payments, and no additional proceeds were advanced through the refinancing (other than to pay the closing costs of the refinancing). (To be consistent with the change to the “Qualified debt” definition regarding when the indebtedness is incurred, the modified or refinanced loan may also change the interest rate and other terms.)

SBA emphasizes that it expressly reserves the right to determine, at its discretion on a loan-by-loan basis, whether the modified or refinanced repayment terms fail to satisfy prudent lending standards.

B. Refinancing Projects Involving Limited or Single Purpose Properties—13 CFR 120.882(g)(5)

Concerns were expressed by 24 commenters about requiring Borrowers to contribute 15%, instead of 10%, for the refinancing of projects involving limited/single purpose properties. The commenters noted that, under the temporary Debt Refinancing Program, SBA required such Borrowers to make only a 10% contribution but, when SBA began to process applications under the reauthorized Debt Refinancing Program, SBA required Borrowers to contribute 15%. SBA notes that the temporary Debt Refinancing Program was implemented during very different economic conditions, when the projects to be refinanced under this program were sometimes significantly under-collateralized. By requiring Borrowers to contribute only 10% and not 15% for refinancing projects involving limited or single purpose properties, SBA made the program more available to Borrowers at a time when it was difficult for small businesses to access capital. Because the project was for the refinancing of an existing debt, and was not for the acquisition, construction, conversion, or expansion of a limited or single purpose property, SBA concluded that the 15% contribution was not required under statutory or regulatory requirements. See section 502(3)(C)(ii) and 13 CFR 120.910(a)(2). Due to the critical need to provide small businesses with access to capital during that time, SBA was willing to absorb the additional risk posed by debt refinancing projects where the underlying collateral was limited or single purpose properties.

However, when SBA implemented the 2016 Act, SBA reconsidered this policy in light of the fact that, with the economic recovery, project properties are now typically over-collateralized and can readily provide the additional 5% equity and often more, thereby mitigating the risk presented to SBA by projects involving single or limited purpose properties in the event of liquidation. The 2016 Act states that the Debt Refinancing Program may provide “not more than 90% of the value of the collateral” for the refinancing of the Qualified Debt, and SBA has determined that, where the underlying collateral is limited or single purpose properties, the financing provided through the Debt Refinancing Program will be limited to 85% of the collateral value, with 15% being contributed by the Borrower.

In the event that general market conditions result again in 504 Projects that are significantly under-collateralized, however, SBA wants the Debt Refinancing Program to have the flexibility to allow Borrowers to contribute only 10% toward the cost of a project involving single or limited use properties. Accordingly, the rule will provide that, if the Refinancing Project involves a limited or single purpose building or structure, the Borrower must contribute not less than 15%; provided, however, that SBA may determine, in its discretion, that in the event of an economic recession, as determined by the National Bureau of Economic Research or its equivalent, the required Borrower contribution may be not less than 10% for such projects. In such circumstance, SBA will publish a notice in the Federal Register of its determination and setting forth the justification for the lower required Borrower contribution. This lower Borrower contribution requirement would be in effect until the first day of the calendar quarter after the economic recession has ended as determined by the National Bureau of Economic Research or its equivalent. SBA will publish a notice in the Federal Register to announce that the lower required Borrower contribution ceased being in effect as of that date.

With respect to the loan provided by the Third Party Lender, the statute requires the Third Party Lender to contribute 50% to the project cost when the project is financing the construction (or acquisition, conversion or expansion) of a single or limited purpose property. See section 502(3)(B)(ii) of the SBIAct. While this statutory requirement does not strictly apply to the refinancing of existing debt involving single/limited purpose property, SBA has considered whether Third Party Lenders should nevertheless be required to contribute 50% in the case of refinancing a debt involving such properties. As Borrowers are now often able in the current market to contribute 20% or more equity to the Refinancing Project's costs, the 504 loan would amount to 30% or less of the project cost if the Third Party Lender were required to contribute 50%, which does not maximize the economic benefit of the 504 Loan Program to the small business. Thus, SBA has determined that Third Party Lenders will not be required to contribute 50% but, as required for all projects financed under the Debt Refinancing Program, their participation must be at least equal to the SBA 504 loan.

C. Extension of Disbursement Deadline—13 CFR 120.882(g)(12)

The current rule requires that the 504 loan proceeds be disbursed within 6 months after loan approval, and authorizes the Director, Office of Financial Assistance, or his or her designee, to approve any request for extension of the disbursement period for good cause. 13 CFR 120.882(g)(12). A commenter stated that, now that the program is permanent, the rule should be revised to allow up to one year for disbursement. The commenter observed that six months may not be sufficient time to, for example, satisfy certain environmental requirements. SBA has considered this comment and agrees to change the disbursement period to nine months, and to provide the Director, Office of Financial Assistance (D/FA), or his or her designee, with the authority to approve any request for extension of the disbursement period for not more than an additional six months for good cause. SBA finds that this increase, along with the limited authority to approve any request for extension for good cause, is sufficient to address the commenter's concerns. SBA is revising 13 CFR 120.882(g)(12) accordingly.

D. Financing of Eligible Business Expenses—13 CFR 120.882(g)(6)(i) and (ii) 1. Loan-to-Value Limitations With Financing of Eligible Business Expenses

Under the Debt Refinancing Program, Borrowers may finance Eligible Business Expenses as part of the Refinancing Project if the amount of cash funds that will be provided for the Refinancing Project exceeds the amount to be paid to the lender of the Qualified debt. See 13 CFR 120.882(g)(6)(ii).

When SBA first implemented the reauthorized Debt Refinancing Program in 2016, SBA applied a maximum 75% loan-to-value (LTV) for any project that financed business expenses and limited such financing of business expenses to no more than 25% of the value of the Eligible Fixed Asset(s) securing the Qualified Debt. See Policy Notice 5000-1382, effective May 26, 2016. Thirty-six commenters expressed concerns that the 75% LTV was severely restrictive and would impair utilization of the program, and many urged SBA to allow for a 90% LTV for all Refinancing Projects. SBA considered these comments and decided to revise 13 CFR 120.882(g)(6)(i) to allow a maximum LTV of 85% for any project that includes the financing of Eligible Business Expenses. SBA concludes that this higher LTV will provide increased access to credit without adding undue risk to SBA.

In addition, most of the commenters expressed support for the 25% limitation on the amount that may be financed for business expenses, though SBA did receive at least one comment suggesting that the small business should determine the percentage of these expenses that may be financed. SBA notes that the financing of business expenses during Fiscal Year 2017 averaged less than 15% of the value of the Eligible Fixed Asset(s) securing the Qualified Debt. In addition, with the statutory requirement that SBA maintain the Debt Refinancing Program at zero subsidy in order for the program to be in effect during any fiscal year, SBA must be diligent in placing prudent controls on the program to mitigate SBA's risk and exposure. Accordingly, SBA has decided to limit the portion of the financing that may be for business expenses to 20% of the value of the Eligible Fixed Asset(s). In addition, if the Refinancing Project includes the financing of Eligible Business Expenses, SBA will not accept as collateral any fixed assets other than the Eligible Fixed Asset(s) securing the Qualified Debt. Accordingly, SBA is revising 13 CFR 120.882(g)(6)(i) and (ii) and the definition of “Refinancing Project” in 13 CFR 120.882(g)(15).

2. Eligible Business Expenses May Include Non-Capital Expenditures

Twenty-eight commenters requested that SBA allow Borrowers to finance minor renovations or “non-substantial modifications or improvements to the Eligible Fixed Assets” as an Eligible Business Expense under the Debt Refinancing Program. Enacted by Congress in 2010, the Jobs Act created the temporary Debt Refinancing Program for projects that do not involve the expansion of a small business. See section 502(7)(C)(ii) of the SBIAct. SBA has concluded that the regulations would benefit from greater clarity regarding the type of minor renovations or “non-substantial modifications or improvements” that SBA regards as not involving the expansion of the small business.

SBA believes that a reasonable approach to this issue is to permit the financing of business expenses in the program as long as the expenses may be deducted as ordinary and necessary expenses on the small business's federal tax returns during the taxable year in which they were paid or incurred. See Internal Revenue Code, section 162. Examples of such expenses may include repairs, maintenance and minor improvements or renovations. Capital expenditures, on the other hand, would not be eligible for financing in the program because they have a useful life substantially beyond the taxable year. See Internal Revenue Code, section 263(a). Examples of such capital expenses may include the acquisition of land or improvements or betterments made to increase the value of any property. SBA believes that using this distinction between operating and capital expenditures is consistent with the statutory requirement that the Debt Refinancing Program be used for Refinancing Projects that do not involve the expansion of a small business.

Accordingly, SBA is revising the definition of Eligible Business Expenses to allow the financing of “any other expenses of the business that are not capital expenditures.” With the addition of this category, SBA is clarifying that the Borrower may finance any operating expense that it records and deducts as an expense in the taxable year in which it was paid or incurred, but may not finance any capital expense that is used to acquire or improve assets and which the Borrower may not claim as a deduction in the taxable year in which the expense was paid or incurred. SBA will rely upon the CDC and the small business to represent the nature of the expense and that the expense may be deducted as an ordinary and necessary expense during the taxable year in which it was paid or incurred. CDCs must document their determination regarding the nature of the expense in the credit memorandum.

SBA is also removing the phrase “or other obligations of the business” from the definition to clarify that, except as described below, other debt of the business is not included as an Eligible Business Expense. As SBA recently clarified, credit card debt may be included as an Eligible Business Expense if the credit card is issued in the name of the Applicant small business and the Applicant certifies that the credit card debt being refinanced was incurred exclusively for business related purposes. See SOP 50 10 5(J), Subpart C, Chapter 2, ¶ IV.E.3.g). SBA has also determined that business lines of credit may be included as an Eligible Business Expense if the business line of credit satisfies the same requirements as credit card debt. For debt that was incurred with a credit card or a business line of credit, the proceeds of the debt being refinanced, like all other business expenses financed under the Debt Refinancing Program, must have been used for expenses of the business that are not capital expenditures.

E. Waiver of the 50% Limitation—13 CFR 120.882(g)(10)

The 2016 Act requires that a CDC limit its financings under the 504 Loan Program so that, during any fiscal year, new financings under the Debt Refinancing Program do not exceed 50% of the dollars the CDC loaned under the 504 Loan Program during the previous fiscal year. The 2016 Act also provides that this limitation may be waived upon application by a CDC and upon SBA's determination that the refinance loan is needed for good cause. In the interim final rule, SBA stated that it would provide guidance regarding the good cause determination in its Standard Operating Procedures or other guidance documents. SBA received many comments suggesting various factors for SBA to consider in making the good cause determination, including projects that (i) assist manufacturing firms, (ii) will employ 1 full time equivalent job for every $100,000 in requested assistance, (iii) include the participation of another economic development entity, (iv) involve a borrower who has a pre-existing relationship with the CDC, or (v) involve a CDC with less than $5 million in 504 loans during the prior fiscal year. Some commenters also expressed concerns that the 50% limitation is disadvantageous to smaller or rural CDCs that may not have the same capacity as larger CDCs to finance these projects.

SBA considered these comments and concludes that the focus of the good cause determination should be only on the Borrower's financing needs, and not on the circumstances of the CDCs or other factors. Accordingly, as reflected in the recently issued SOP 50 10 5(J), Subpart C, Chapter 2, § IV.E.2, SBA will consider the following factors in determining whether there is good cause for the Borrower to obtain the refinancing through a CDC that exceeds the 50% requirement: (1) Whether the Borrower has access to other sources of financing, including other CDCs that have not exceeded their 50% cap; and (2) whether the CDC has an existing 504 loan with the Borrower that is in current status. No change to the regulation is necessary.

F. Statutory Requirements

Several commenters requested changes to other program requirements in the Debt Refinancing Program, including that SBA: (i) Allow 504 or 7(a) loans to be refinanced in the Debt Refinancing Program, (ii) allow CDCs participating in the Premier Certified Lenders Program (PCLP) to use their delegated authority to approve loans made in the Debt Refinancing Program, and (iii) reinstate the alternative job retention goal provided in the Jobs Act for Borrowers that do not meet the job creation and retention goals under sections 501(d) and (e) of the Small Business Investment SBIAct.

However, each of these program requirements is mandated by statute: the prohibition against refinancing a loan subject to a guarantee by a Federal agency is mandated by section 502(7)(C)(i)(III)(aa)(CC) of the SBIAct; the prohibition against PCLP CDCs using their delegated authority to approve loans made in the Debt Refinancing Program is mandated by section 502(7)(C)(v) of the SBIAct; and the elimination of the alternative job retention goal was made by section 521(a)(1) of the 2016 Act. SBA notes that, with the elimination of the alternate job retention goal, all applicants for a loan under the Debt Refinancing Program are required to meet the job creation and retention goals under section 501(d) and (e) of the SBIAct. Based on these goals, a 504 Project, including a project financed under the Debt Refinancing Program, must achieve one of the economic development objectives set forth in 13 CFR 120.861 or 120.862.

Accordingly, SBA cannot adopt the requested changes.

III. Section-by-Section Analysis

Except as set forth below, 13 CFR 120.882(g) remains unchanged.

Section 120.882(g) Introductory Text. In the Interim Final Rule, SBA revised the introductory text in this section to remove the following phrase that is no longer applicable: “For applications received on or after February 17, 2011 and approved by SBA no later than September 27, 2012”. Also, with the permanent reauthorization of the Debt Refinancing Program by the 2016 Act, a specific application period is unnecessary. No comments were received on this provision and no further changes are being made.

Section 120.882(g)(3). In the Interim Final Rule, SBA revised this section by removing the maturity date requirement. In its place, SBA inserted the 2016 Act's requirement that, for the Debt Refinancing Program to be in effect during any fiscal year, the cost to the Federal government of making guarantees under the Debt Refinancing Program and under the 504 Loan Program must be zero. No comments were received on this provision and no further changes are being made.

Section 120.882(g)(5). This paragraph is being revised to provide that, if the Refinancing Project involves a limited or single purpose building or structure, the Borrower must contribute not less than 15%. However, SBA may determine, in its discretion, that in the event of an economic recession as determined by the National Bureau of Economic Research or its equivalent, the required Borrower contribution may be not less than 10% for such projects. This lower Borrower contribution requirement may be in effect until the recession ends as determined by the National Bureau of Economic Research or its equivalent. As explained above, SBA will publish a notice in the Federal Register to announce the lower Borrower contribution requirement and explaining its justification, and a notice to announce that, due to the end of the recession, the lower Borrower contribution requirement is no longer in effect.

Section 120.882(g)(6). As discussed above, SBA is revising § 120.882(g)(6)(i) to allow a maximum LTV of 85% for any project that includes the financing of Eligible Business Expenses, and to limit the portion of the financing that may be used for Eligible Business Expenses to 20% of the value of the Eligible Fixed Asset(s). SBA is also revising § 120.882(g)(6)(ii) to amend the definition of Eligible Business Expenses to include “any other expenses of the business that are not capital expenditures”, and to remove the phrase “other obligations of the business” from the definition to clarify that Eligible Business Expense may include credit card debt and business lines of credit in the name of the small business that were incurred exclusively for business related purposes, but no other debt of the business may be included.

Section 120.882(g)(10). As discussed above, the 2016 Act eliminated the alternate job retention goal and, accordingly, SBA removed the alternate job retention goal provision from the regulations in the Interim Final Rule.

Instead, the Interim Final Rule revised § 120.882(g)(10) to reflect the 2016 Act's requirement that a CDC limit its financings under the Debt Refinancing Program so that, during any fiscal year (October 1 to September 30), new financings under the Debt Refinancing Program do not exceed 50% of the dollars loaned by the CDC under the 504 Loan Program during the previous fiscal year. Because the 2016 Act provides that the 50% limitation applies to the dollars loaned under the 504 Loan Program during the previous fiscal year, all financings made by the CDC during the previous fiscal year will be included in determining this number, including those financings made under the Debt Refinancing Program.

The Interim Final Rule provided that, as authorized by the 2016 Act, the 50% limitation may be waived upon application by a CDC and a determination by SBA that the refinance loan is needed for good cause. As discussed above, SBA received comments on this provision and SBA has issued waiver guidance in the recently issued Standard Operating Procedure 50 10 5(J). SBA will monitor the implementation of this guidance and update it as needed in its policy guidance. For clarity, SBA is changing the term “refinance loan” to “504 loan” in the last sentence of section 120.882(g)((10). No further changes are being made to the regulation.

Section 120.882(g)(12). As discussed above, this paragraph is being revised to change the period by which a loan must be disbursed from six months to nine months. The Director, Office of Financial Assistance (D/FA), or his or her designee, will have the authority to approve any request for extension of the disbursement period for not more than an additional six months for good cause.

Section 120.882(g)(13). This section prohibits the Third Party Loan from being sold on the secondary market as a part of a pool guaranteed under subpart J of part 120 when the debt being refinanced is same institution debt. Subpart J of part 120, the Secondary Market Guarantee Program for First Lien Position 504 Loan Pools, expired on September 23, 2012; however, should this program be reauthorized, SBA wants to ensure that this prohibition remains in effect. Accordingly, in the Interim Final Rule, SBA revised this provision to make it clear that the prohibition would apply to any successor to the program described in subpart J of part 120. No comments were received on this provision and no further changes are being made.

Section 120.882(g)(15) (Definition of “Qualified debt”). As discussed above, SBA is revising the criterion in paragraph (i) to allow certain loans that are refinanced within the two years prior to the date of application to be eligible as the same “indebtedness” if the effect of the refinancing was to extend the maturity date without advancing any additional proceeds, and the collateral for the most recent loan includes, at a minimum, the same Eligible Fixed Asset(s) that served as collateral for the former loan that was refinanced. Other terms of the most recent loan, such as interest rate and the addition of other collateral, may be different. To be considered for eligibility by SBA, the loan documents and lien instruments for the most recent loan, as well as the loan documents and lien instruments for the loan that was replaced by the most recent loan, must be submitted to SBA as part of the application.

SBA is also revising the definition of “current on all payments due” in paragraph (vii) to allow the payment terms of a loan to be modified less than one year prior to the date of application (whether through a modification to an existing Note or a refinancing that results in a new Note) if the purpose of the modification or refinancing is to extend the maturity date of the loan, including balloon payments, no additional proceeds were advanced to the Borrower, and the Borrower was current on all payments due for the one year period prior to the date of application (i.e., in the months prior to and after the effective date of the modification or refinancing), including that there were no deferments of any payment.

SBA emphasizes that it reserves the right to determine, at its discretion on a loan-by-loan basis, whether the terms of any modification or refinancing are consistent with prudent lending standards.

Section 120.882(g)(15) (Definition of “Refinancing Project”). SBA is revising this definition to provide that, if the Refinancing Project includes the financing of Eligible Business Expenses, SBA will not accept as collateral any fixed assets other than the Eligible Fixed Asset(s) securing the Qualified debt.

Compliance With Executive Orders 12866, 12988, 13132, and 13563, 13771, the Paperwork Reduction Act (44 U.S.C., Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612) Executive Order 12866

The Office of Management and Budget has determined that this rule does not constitute a “significant regulatory action” under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act.

Executive Order 12988

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

Executive Order 13132

This rule does not have federalism implications as defined in Executive Order 13132. 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, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.

Executive Order 13563

The Consolidated Appropriations Act, 2016, reauthorized the Debt Refinancing Program, which was first authorized by the Jobs Act. The Agency received significant public comments on the Jobs Act interim final rule that was issued to implement the temporary Debt Refinancing Program (see 76 FR 9213, February 17, 2011). To assist in developing that interim final rule, the Agency held a public forum on November 17, 2010 in Boston, Massachusetts. As discussed above, SBA received a significant number of public comments on the interim final rule that was published to implement the reauthorized Debt Refinancing Program, and the revisions made by this final rule are the result of the public participation in the rulemaking process.

Executive Order 13771

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

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

SBA has determined that this final rule does not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

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

The RFA requires administrative agencies to consider the effect of their actions on small entities, including small non-profit businesses, and small local governments. Pursuant to the RFA, when an agency issues a rule, the agency must prepare an analysis that describes whether the impact of the rule will have a significant economic impact on a substantial number of these small entities. However, the RFA requires such analysis only where notice and comment rulemaking is required. This rule finalizes the interim final rule that was published in 2016 to implement the reauthorized Debt Refinancing Program. In issuing that rule, SBA provided just cause why it could be published without notice and comment, and therefore, exempted from the RFA requirement to prepare an initial regulatory flexibility analysis. Since this final rule merely finalizes that exempted interim rule, SBA believes a final regulatory analysis is also not required.

List of Subjects in 13 CFR Part 120

Loan programs—business, Small businesses, Reporting and recordkeeping requirements.

Accordingly, the interim final rule amending 13 CFR part 120 which was published at 81 FR 33123 on May 25, 2016, is adopted as a final rule with the following changes:

PART 120—BUSINESS LOANS 1. The authority citation for 13 CFR part 120 is revised to read as follows: Authority:

15 U.S.C. 634(b) (6), (b) (7), (b) (14), (h), and note, 636(a), (h) and (m), 650, 687(f), 696(3) and (7), and 697(a) and (e); Pub. L. 111-5, 123 Stat. 115, Pub. L. 111-240, 124 Stat. 2504.

2. Amend § 120.882 by: a. Adding three sentences after the first sentence of paragraph (g)(5), and removing “10%” in the last sentence; b. Revising paragraph (g)(6)(i); c. Removing the third and fourth sentences of paragraph (g)(6)(ii) and adding in their place five sentences; d. Removing the words “refinance loan” in the last sentence of paragraph (g)(10) and adding the words “504 loan” in their place; e. Revising paragraph (g)(12); f. Removing the semicolon at the end of paragraph (i) in the definition of “Qualified debt” in paragraph (g)(15), adding a period in its place, and adding two sentences to the end of the paragraph; g. Removing the second sentence of paragraph (vii) in the definition of “Qualified debt” in paragraph (g)(15) and adding in its place two sentences; and h. Revising the definition of “Refinancing Project” in paragraph (g)(15).

The additions and revisions read as follows:

§ 120.882 Eligible Project costs for 504 loans.

* * *

(g) * * *

(5) * * * If the Refinancing Project involves a limited or single purpose building or structure, the Borrower must contribute not less than 15% (excluding administrative costs), unless SBA determines, in its discretion, and publishes a notice in the Federal Register, that due to an economic recession, as determined by the National Bureau of Economic Research or its equivalent, Borrowers may contribute not less than 10% for Refinancing Projects involving a limited or single purpose property during the recession. The lower required contribution by the Borrower will be in effect until the first day of the calendar quarter following the end of the economic recession as determined by the National Bureau of Economic Research or its equivalent. SBA will publish a notice in the Federal Register announcing the date on which the requirement of the lower Borrower contribution ended. * * *

(6)(i) The portion of the Refinancing Project provided by the 504 loan and the Third Party Loan may be no more than 90% of the fair market value of the fixed assets that will serve as collateral, except that if the Borrower's application includes a request to finance the Eligible Business Expenses described in paragraph (g)(6)(ii) of this section, the portion of the Refinancing Project provided by the 504 loan and the Third Party Loan may be no more than 85% of the fair market value of the fixed assets that will serve as collateral and the Borrower may receive no more than 20% of the fair market value of the Eligible Fixed Asset(s) securing the Qualified Debt for Eligible Business Expenses;

(ii) * * * For the purposes of this paragraph (g), “Eligible Business Expenses” are limited to the operating expenses of the business that were incurred but not paid prior to the date of application or that will become due for payment within 18 months after the date of application. These expenses may include salaries, rent, utilities, inventory, and other expenses of the business that are not capital expenditures. Debt is not included as an Eligible Business Expense, except debt that was incurred with a credit card or a business line of credit may be included if the credit card or business line of credit is issued in the name of the small business and the Applicant certifies that the debt being refinanced was incurred exclusively for business related purposes. Loan proceeds must not be used to refinance any personal expenses. Both the CDC and the Borrower must certify in the application that the funds will be used to cover Eligible Business Expenses. * * *

(12) The 504 loans approved under this paragraph (g) must be disbursed within 9 months after loan approval. The Director, Office of Financial Assistance, or his or her designee, may approve a request for extension of the disbursement period for an additional 6 months for good cause.

(15) * * *

Qualified debt is a commercial loan:

* * *

(i) * * * A commercial loan that was refinanced within the two years prior to the date of application (the most recent loan) may be deemed incurred not less than 2 years before the date of the application provided that the effect of the most recent loan was to extend the maturity date without advancing any additional proceeds (except to cover closing costs) and the collateral for the most recent loan includes, at a minimum, the same Eligible Fixed Asset(s) that served as collateral for the former loan that was refinanced. The loan documents and lien instruments for the most recent loan, as well as the loan documents and lien instruments for the loan that was replaced by the most recent loan, must be submitted to SBA as part of the application.

(vii) * * * For the purposes of this paragraph (vii), “current on all payments due” means that no payment was more than 30 days past due from either the original payment terms or modified payment terms (whether through a modification to an existing Note or through a refinancing that results in a new Note). The modification (or refinancing) must have been agreed to in writing by the Borrower and the lender of the existing debt no less than one year preceding the date of application, except that a modified (or refinanced) loan may be allowed if the purpose of the modification (or refinancing) was to extend the maturity date of the loan, including any balloon payment, and if, during the one year period prior to the date of application (i.e., in the months prior to and after the modification or refinancing), the Borrower was current on all payments due, there have been no deferments of any payments, and no additional proceeds were advanced through the modification or refinancing (except to cover closing costs). * * *

Refinancing Project means the fair market value of the Eligible Fixed Asset(s) securing the qualified debt and any other fixed assets acceptable to SBA, except that if the Refinancing Project includes the financing of Eligible Business Expenses, SBA will not accept as collateral any fixed assets other than the Eligible Fixed Asset(s) securing the Qualified Debt.

Dated: April 26, 2018. Linda E. McMahon, Administrator.
[FR Doc. 2018-09638 Filed 5-4-18; 8:45 am] BILLING CODE 8025-01-P
SMALL BUSINESS ADMINISTRATION 13 CFR Part 120 Express Bridge Loan Pilot Program; Modification of Fee Policy AGENCY:

U.S. Small Business Administration.

ACTION:

Notification of change to Express Bridge Loan Pilot Program and impact on regulatory provision.

SUMMARY:

On October 16, 2017, the U.S. Small Business Administration (SBA) published a document announcing the Express Bridge Loan Pilot Program (Express Bridge Pilot). In that document, SBA provided an overview of the Express Bridge Pilot and modified an Agency regulation relating to loan underwriting for loans made under the Express Bridge Pilot. SBA continues to refine and improve the design of the Express Bridge Pilot and is issuing this document to revise the program requirements, including the modification of an Agency regulation relating to fees that can be collected from the Applicant or Borrower in connection with a loan made under the Express Bridge Pilot.

DATES:

The revised program requirements described in this document apply to all Express Bridge Pilot loans approved on or after May 7, 2018, and the Express Bridge Pilot will remain available through September 30, 2020.

FOR FURTHER INFORMATION CONTACT:

Dianna Seaborn, Director, Office of Financial Assistance, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416; Telephone (202) 205-3645; email address: [email protected]

SUPPLEMENTARY INFORMATION:

On October 16, 2017, SBA published a document announcing the Express Bridge Pilot. (82 FR 47958) The Express Bridge Pilot is designed to supplement the Agency's disaster response capabilities and authorizes the Agency's 7(a) Lenders with SBA Express lending authority to deliver expedited SBA-guaranteed financing on an emergency basis for disaster-related purposes to small businesses located in communities impacted by a Presidentially-declared disaster, while the businesses apply for and await long-term financing (including through SBA's direct disaster loan program, if eligible).

The Express Bridge Pilot applies the policies and procedures in place for the Agency's SBA Express program, except as outlined in the Federal Register document published on October 16, 2017. Pursuant to the authority provided to SBA under 13 CFR 120.3 to suspend, modify or waive certain regulations in establishing and testing pilot loan initiatives, SBA modified the regulation at 13 CFR 120.150 (“What are SBA's lending criteria?”), which applies to loans made in the 7(a) Business Loan Program. SBA modified the regulation in order to minimize the burdens on the businesses applying for loans through the Express Bridge Pilot and to expand the opportunities for SBA Express lenders to participate in the pilot.

SBA continues to refine and improve the design of the Express Bridge Pilot and, therefore, is issuing this document to clarify the fees that Lenders or third parties are able to collect from Applicants or Borrowers in connection with loans made under the pilot. All Express Bridge Pilot loans are subject to the same upfront guaranty fees required for 7(a) loans of similar size and maturity as set forth in 13 CFR 120.220. In addition, all Express Bridge Pilot loans are subject to the same Lender's annual service fee required for all 7(a) loans as set forth in 13 CFR 120.220(f).

In order to ensure that Applicants and Borrowers are charged only those additional fees reasonably necessary in connection with an Express Bridge Pilot loan, SBA is modifying the regulation at 13 CFR 120.221 (“Fees and expenses which the Lender may collect from a loan applicant or Borrower”), using the term modify as contemplated under 13 CFR 120.3, to permit Lenders to collect only the following:

1. Lender Fees: An SBA Express Lender must not impose any fees or direct costs on an Express Bridge Pilot Applicant or Borrower, except for the following:

a. Application Fee: SBA Express Lenders may charge an Express Bridge Pilot Applicant an application fee. The maximum permissible application fee is 2% of the loan amount or $250, whichever is greater. If an application fee is charged, it must be disclosed on SBA Form 159(7a), Fee Disclosure Form and Compensation Agreement for Agent Services in Connection with a SBA 7(a) Loan. If an undisbursed loan is canceled, the Lender may retain the application fee;

b. Late Payment Fee: A late payment fee not to exceed 5 percent of the scheduled Express Bridge Pilot loan payment; and

c. Liquidation Costs: The reasonable direct costs of liquidation.

2. Prohibition on all other fees and charges, including by loan packagers, referral agents or brokers. Except as permitted in 1. above, no other fee or costs may be charged to an Express Bridge Pilot Applicant or Borrower by the Lender. In addition, no fee or costs may be charged to an Express Bridge Pilot Applicant or Borrower by any third party in connection with an Express Bridge Pilot loan, including any referral fee, broker's fee, or similar fee.

The modification of this regulation will permit SBA Express lenders to recoup some of their costs in processing the application, without subjecting the Applicant to excessive or unnecessary fees for these small guaranteed loans that are intended to provide immediate cash to assist the small business with rebuilding and continuing or restarting its operations while awaiting long-term disaster financing. SBA believes that the costs of the program should be kept as low as possible to aid the disaster-affected small business. The application fee is optional; therefore an SBA Express Lender may choose not to collect an application fee from an Express Bridge Pilot Applicant. Additionally, because an Express Bridge Pilot loan Applicant must have had an existing banking relationship with the SBA Express lender, there is no need for either the Applicant or the Lender to pay a referral fee, broker's fee, or similar fee for these loans.

SBA's modification of 13 CFR 120.221 is authorized by 13 CFR 120.3 of its regulations, which provides that the SBA Administrator may suspend, modify or waive rules for a limited period of time to test new programs or ideas. This modification applies only to loans made under the Express Bridge Pilot and will last only for the duration of the pilot, which expires September 30, 2020. As part of the Express Bridge Pilot, this modification applies only to those small businesses that were located, as of the date of the applicable disaster, in counties that have been Presidentially-declared as disaster areas, plus any contiguous counties. A listing of Presidentially-declared disaster declarations, including primary and contiguous counties can be located at www.sba.gov/disaster.

All other SBA terms and conditions and regulatory waivers related to the Express Bridge Pilot remain unchanged.

SBA will provide more detailed guidance in the form of a program guide, which will be available on SBA's website, http://www.sba.gov. SBA may also provide additional guidance, if needed, through SBA notices, which also will be published on SBA's website, http://www.sba.gov.

Authority:

15 U.S.C. 636(a)(25); 13 CFR 120.3.

Dated: April 26, 2018. Linda E. McMahon, Administrator.
[FR Doc. 2018-09627 Filed 5-4-18; 8:45 am] BILLING CODE 8025-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1163; Product Identifier 2017-CE-041-AD; Amendment 39-19260; AD 2018-09-04] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Gulfstream Aerospace Corporation Models G-IV and GIV-X airplanes. This AD was prompted by the potential for fatigue cracks developing in the main landing gear actuator attachment fitting that had a certain repair incorporated. This AD requires incorporating new revisions into the Instructions for Continued Airworthiness of the Limitations section of the FAA-approved maintenance program (e.g., maintenance manual) that establish an inspection cycle for the repaired MLG side brace actuator fittings. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective June 11, 2018.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of June 11, 2018.

ADDRESSES:

For service information identified in this final rule, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Savannah, Georgia 31402-2206; telephone: (800) 810-4853; fax 912-965-3520; email: [email protected]; internet: http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1163.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1163; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

William O. Herderich, Aerospace Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5547; fax: (404) 474-5605; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Gulfstream Aerospace Corporation Models G-IV and GIV-X airplanes. The NPRM published in the Federal Register on December 12, 2017 (82 FR 58362). The NPRM was prompted by the potential for fatigue cracks developing in the main landing gear actuator attachment fitting that had a certain repair incorporated. The NPRM proposed to require incorporating new revisions into the Instructions for Continued Airworthiness of the Limitations section of the FAA-approved maintenance program (e.g., maintenance manual) that establish an inspection cycle for the repaired MLG side brace actuator fittings. We are issuing this AD to address the unsafe condition on these products.

Comments

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

Request To Change Compliance Time

Gulfstream Aerospace Corporation stated that the compliance time for the actions required in the proposed AD should be changed to be in-line with the service information incorporated by reference in the proposed AD.

Gulfstream Aerospace Corporation stated that the compliance time specified in the service information incorporated by reference in the proposed AD is 24 months from September 16, 2016. Gulfstream Aerospace Corporation believes that the 100-hour time-in-service (TIS) compliance time after the effective date of the proposed AD significantly reduces the original compliance time and may cause an undue burden on the owner/operators of the affected airplanes.

We agree that the compliance time can be changed to more fully coincide with the service bulletin without affecting the safety risk of this AD. We have changed the compliance time of this AD to “Within the next 100 hours time-in-service (TIS) after the effective date of this AD or within the next 3 months after the effective date of this AD, whichever occurs later.” The 3-month compliance time combined with the 35 days after publication in the Federal Register effective date should coincide with the compliance time in the service bulletin.

Conclusion

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Gulfstream G350 Customer Bulletin Number 192A, dated June 15, 2017, including Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016 (for model Gulfstream G350); Gulfstream G450 Customer Bulletin 192A, dated June 15, 2017, including Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016 (for model Gulfstream G450); Gulfstream IV Customer Bulletin Number 238A, dated June 15, 2017, including Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016 (for model Gulfstream IV); Gulfstream G300 Customer Bulletin Number 238A, dated June 15, 2017, including Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016 (for model Gulfstream G300); and Gulfstream G400 Customer Bulletin Number 238A, dated June 15, 2017, including Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016 (for model Gulfstream G400). For the applicable models, the service information describes procedures for inspecting maintenance records to determine if repair SE05732102 for the main landing gear side brace fitting has been incorporated and determining initial and repetitive inspection requirements for the main landing gear side brace fitting. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 709 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspect Maintenance Records 1 work-hour × $85 per hour = $85 Not applicable $85 $60,265 Incorporate new revisions into the Instructions for Continued Airworthiness of the Limitations section of the FAA-approved maintenance program (e.g., maintenance manual) 1 work-hour × $85 per hour = $85 Not applicable 85 60,265
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to small airplanes, gliders, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-09-04 Gulfstream Aerospace Corporation: Amendment 39-19260; Docket No. FAA-2017-1163; Product Identifier 2017-CE-041-AD. (a) Effective Date

    This AD is effective June 11, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the following Gulfstream Aerospace Corporation model airplanes that are certificated in any category:

    (1) Model G-IV, serial numbers (S/Ns) 1000 through 1399 having Aircraft Service Change (ASC) 416A (MSG-3) incorporated; and S/Ns 1400 through 1535; and

    (2) Model GIV-X, S/Ns 4001 through 4355.

    (d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 32, Landing Gear.

    (e) Unsafe Condition

    This AD was prompted by the potential for fatigue cracks in the main landing gear (MLG) actuator attachment fitting that had a certain repair incorporated. We are issuing this AD to prevent failure of the MLG actuator attachment. The unsafe condition, if not addressed, could compromise the lateral support of the MLG during ground maneuvers, possibly leading to collapse of the affected MLG with consequent loss of control. In addition, this condition could also cause the MLG side brace to fail, which could result in a penetration of the wing fuel tank causing an uncontained fire.

    (f) Compliance

    At whichever of the following in paragraphs (f)(1) and (f)(2) that occurs later, comply with the actions in paragraphs (g) through (i) of this AD, unless already done.

    (1) Within the next 100 hours time-in-service after June 11, 2018 (the effective date of this AD); or

    (2) Within the next 3 months after June 11, 2018 (the effective date of this AD).

    (g) Inspect Maintenance Records

    Inspect the airplane maintenance records to determine if repair SE05732102 for the MLG side brace fitting has been incorporated. To do this inspection, use the Accomplishment Instructions in Gulfstream G350 Customer Bulletin Number 192A; Gulfstream G450 Customer Bulletin 192A; Gulfstream IV Customer Bulletin Number 238A; Gulfstream G300 Customer Bulletin Number 238A; and Gulfstream G400 Customer Bulletin Number 238A; all dated June 15, 2017, as applicable. The service information referenced in this paragraph specifies sending a service reply card back to Gulfstream Aerospace Corporation if repair SE05732102 for the MLG side brace fitting has been not been incorporated. This action is not required in this AD.

    (h) Determine Initial and Repetitive Inspection Requirements

    If it is determined during the maintenance records inspection required in paragraph (g) of this AD that repair SE05732102 for the MLG side brace fitting has been incorporated, determine the initial and repetitive inspection requirements using the Accomplishment Instructions of the service information identified in paragraph (g) of this AD along with the following documents, as applicable. Comply with the inspection requirements as determined.

    (1) Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016, to Gulfstream G350 Customer Bulletin No. 192A, dated June 15, 2017;

    (2) Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016, to Gulfstream G450 Customer Bulletin No. 192A, dated June 15, 2017;

    (3) Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016, to Gulfstream IV Customer Bulletin No. 283A, dated June 15, 2017;

    (4) Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016, to Gulfstream G300 Customer Bulletin No. 283A, dated June 15, 2017; and

    (5) Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016, to Gulfstream G400 Customer Bulletin No. 283A, dated June 15, 2017.

    (i) Revise Limitations Section

    Insert the documents listed in paragraphs (h)(1) through (5) of this AD into the Instructions for Continued Airworthiness of the Limitations section of the FAA-approved maintenance program (e.g., maintenance manual), as applicable. The revised limitations sections establish inspections of the repaired MLG side brace actuator fittings.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (g) through (i) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (k) Related Information

    For more information about this AD, contact William O. Herderich, Aerospace Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474-5547; fax: (404) 474-5605; email: [email protected]

    (l) Material Incorporated by Reference

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

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

    (i) Gulfstream G350 Customer Bulletin Number 192A, dated June 15, 2017, that incorporates Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016.

    (ii) Gulfstream G450 Customer Bulletin 192A, dated June 15, 2017, that incorporates Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016.

    (iii) Gulfstream IV Customer Bulletin Number 238A, dated June 15, 2017, that incorporates Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016.

    (iv) Gulfstream G300 Customer Bulletin Number 238A, dated June 15, 2017, that incorporates Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016.

    (v) Gulfstream G400 Customer Bulletin Number 238A, dated June 15, 2017, that incorporates Appendix A, Gulfstream Document GIV-SGER-553, Revision A, Instructions for Continued Airworthiness for Gulfstream Repair Drawing SE05732102, dated December 14, 2016.

    (3) For Gulfstream Aerospace Corporation service information identified in this AD, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Savannah, Georgia 31402-2206; telephone: (800) 810-4853; fax 912-965-3520; email: [email protected]; internet: http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm.

    (4) You may view this service information at FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

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

    Issued in Kansas City, Missouri, on April 19, 2018. Melvin Johnson, Deputy Director, Policy and Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-08956 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1245; Product Identifier 2017-NM-099-AD; Amendment 39-19266; AD 2018-09-09] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A318 series airplanes and Model A319 series airplanes; all Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and all Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the holes of the upper cleat to upper stringer attachments at certain areas of the left- and right-hand wings are subject to widespread fatigue damage (WFD). This AD requires modifying the holes of the upper cleat to upper stringer attachments at certain areas of the left- and right-hand wings. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective June 11, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 11, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; internet: http://www.airbus.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1245.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1245; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A318 series airplanes and Model A319 series airplanes; all Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and all Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on January 12, 2018 (83 FR 1579) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the holes of the upper cleat to upper stringer attachments at certain areas of the left- and right-hand wings are subject to WFD. The NPRM proposed to require modifying the holes of the upper cleat to upper stringer attachments at certain areas of the left- and right-hand wings. We are issuing this AD to prevent fatigue cracking in the stringer attachment holes of the wings, which could result in reduced structural integrity of the wings.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0117, dated July 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318 series airplanes and Model A319 series airplanes; all Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and all Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:

    Within the scope of work of service life extension for A320 aeroplanes and of widespread fatigue damage evaluations, it has been determined that a structural modification is required to allow the aeroplanes to continue operation up to the limit of validity (LoV).

    This condition, if not corrected, may affect the structural integrity of the wing.

    To address this potential unsafe condition, Airbus issued [service bulletin] SB A320-57-1208, providing instructions to oversize the holes of the upper cleat to upper stringer attachments at Rib 2 to Rib 7 (inclusive).

    For the reason described above, this [EASA] AD requires modification of the affected holes.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1245.

    Comments

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

    Request To Clarify Applicability

    Allegiant Air asked that we clarify the manufacturer serial numbers (MSNs) identified in the applicability section of the proposed AD. Allegiant Air stated that the effectivity specified in Airbus Service Bulletin A320-57-1208, dated November 21, 2016, identifies airplanes up to and including MSN 7493, and asked about airplanes having MSNs higher than 7493. Allegiant Air noted that it has 11 Model A320 airplanes with MSNs outside those listed in Airbus Service Bulletin A320-57-1208, dated November 21, 2016. Allegiant Air added that it understands the AD takes precedence over the service information, but there are several configurations listed therein. Allegiant Air also added that since the MSNs in question are not listed in the effectivity of the service information, an operator with an MSN outside the effectivity will not know which modification kit to order.

    We agree to clarify. The effectivity in Airbus Service Bulletin A320-57-1208, dated November 21, 2016, does not include all MSNs for Model A320 airplanes, and the applicability specified in paragraph (c) of this AD includes all MSNs for Model A320 airplanes, except for airplanes having certain modifications. We acknowledge that the referenced service information may not be adequate for certain airplane configurations. Therefore, we have revised paragraph (g) of this AD to provide an option for doing the modification, including identification of the appropriate modification kit, using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).

    In addition, Airbus has informed us that Revision 1 of the referenced service information will expand the effectivity to include MSNs up to 8555. Airbus has also informed us that, upon request, it will issue a technical adaptation as an interim method of compliance until a revised service bulletin is issued.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Airbus Service Bulletin A320-57-1208, dated November 21, 2016. This service information describes procedures for modifying the stringer attachments at rib 2 through rib 7 of the left- and right-hand wings. The modification includes oversizing the holes, doing an eddy current inspection of the affected holes for damage, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 1,136 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Modification (by oversizing and doing eddy current inspection) 125 work-hours × $85 per hour = $10,625 $26,260 $36,885 $41,901,360

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-09-09 Airbus: Amendment 39-19266; Docket No. FAA-2017-1245; Product Identifier 2017-NM-099-AD. (a) Effective Date

    This AD is effective June 11, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes; certificated in any category; all manufacturer serial numbers, except airplanes specified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model A318 series airplanes on which Airbus Modification (Mod) 39195 has been embodied in production or Airbus Service Bulletin A320-00-1219 has been embodied in service.

    (2) Model A319 series airplanes on which Airbus Mod 28238, Mod 28162, and Mod 28342 have been embodied in production.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by an evaluation by the design approval holder indicating that the holes of the upper cleat to upper stringer attachments at rib 2 through rib 7 of the left- and right-hand wings are subject to widespread fatigue damage. We are issuing this AD to prevent fatigue cracking in the stringer attachment holes of the wings, which could result in reduced structural integrity of the wings.

    (f) Compliance

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

    (g) Modification

    Before reaching the upper limit, but not before reaching the lower limit, as defined in table 1 to paragraph (g) of this AD, as applicable: Modify the holes of the upper cleat to upper stringer attachments at rib 2 through rib 7 inclusive, on the left- and right-hand wings by oversizing the holes, doing eddy current inspections of the holes for damage, and repairing any damage found before further flight, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1208, dated November 21, 2016, except as required by paragraph (h) of this AD; or 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.

    ER07MY18.026 (h) Service Information Exception

    Where Airbus Service Bulletin A320-57-1208, dated November 21, 2016, specifies to contact Airbus for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, accomplish corrective actions in accordance with the procedures specified in paragraph (i)(2) of this AD.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

    (2) Contacting the Manufacturer: As of the effective date of this AD, 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 EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0117, dated July 7, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1245.

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

    (k) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A320-57-1208, dated November 21, 2016.

    (ii) Reserved.

    (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.

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

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

    Issued in Des Moines, Washington, on April 20, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09280 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0838; Product Identifier 2017-NE-33-AD; Amendment 39-19275; AD 2018-10-01] RIN 2120-AA64 Airworthiness Directives; Safran Helicopter Engines, S.A., Turboshaft Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Safran Helicopter Engines, S.A., Arriel 2E turboshaft engines. This AD was prompted by reports of ruptured front support pins on the accessory gearbox front support. This AD requires replacement of the accessory gearbox front support. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD becomes effective June 11, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Safran Helicopter Engines, S.A., 40220 Tarnos, France; phone: (33) 05 59 74 40 00; fax: (33) 05 59 74 45 15. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0838.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0838; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Robert Green, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Safran Helicopter Engines, S.A., Arriel 2E turboshaft engines. The NPRM published in the Federal Register on November 3, 2017 (82 FR 51170). The NPRM was prompted by reports of ruptured front support pins on the accessory gearbox front support. The NPRM proposed to require replacement of the accessory gearbox front support. We are issuing this AD to address the unsafe condition on these products.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0235, dated November 24, 2016 (referred to after this as the MCAI), to address the unsafe condition on these products. The MCAI states:

    Some cases were reported of ruptured front support pins on ARRIEL 1E2 engines. That condition, if not detected and corrected, could lead to the loss of the load path integrity of the engine front support. Consequently, Turboméca issued Mandatory Service Bulletin (MSB) 292 72 0842 to provide instructions for the inspection of the pins and front support replacement, and EASA issued AD 2015-0064 (later revised) to require those actions. Since EASA AD 2015-0064R1 was issued, SAFRAN Helicopter Engines developed a new pin design, in order to increase the mechanical strength of the pin, through modification TU380, for ARRIEL 1E2 engines. Although no cases of front support pin rupture have been reported on ARRIEL 2E engines, since the ARRIEL 1E2 and 2E type designs have the same front support, SAFRAN Helicopter Engines decided to also apply this new pin design on ARRIEL 2E engines through modification TU197. To address this potential unsafe condition, SAFRAN Helicopter Engines decided, as precautionary measure, to replace the front support on ARRIEL 2E engines, and published MSB 292 72 2197 to provide instructions for in-service front support replacement. For the reasons described above, this [EASA] AD requires modification of the affected engines by replacement of each pre-mod TU197 front support.

    You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0838.

    Comments

    We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

    Conclusion

    We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed.

    Related Service Information

    We reviewed Safran Helicopter Engines, S.A., Mandatory Service Bulletin (MSB) No. 292 72 2197, Version A, dated September 15, 2016. The MSB describes procedures for replacement of the accessory gearbox front support.

    Costs of Compliance

    We estimate that this AD affects 28 engines installed on aircraft of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Front support replacement 2 work-hours × $85 per hour = $170 $19,731 $19,901 $557,228
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-10-01 Safran Helicopter Engines, S.A.: Amendment 39-19275; Docket No. FAA-2017-0838; Product Identifier 2017-NE-33-AD. (a) Effective Date

    This AD is effective June 11, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Safran Helicopter Engines, S.A., Arriel 2E turboshaft engines with front support, part number 0 292 11 715 0, installed (pre-mod TU 197 configuration).

    (d) Subject

    Joint Aircraft System Component (JASC) Code 8300, Accessory Gearboxes.

    (e) Unsafe Condition

    This AD was prompted by reports of ruptured front support pins on the accessory gearbox front support. We are issuing this AD to prevent failure of a front support, loss of engine thrust control and reduced control of the helicopter.

    (f) Compliance

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

    (g) Required Actions

    Before the accessory gearbox and transmission shaft module (Module 01) accumulates 1,600 engine operating hours since new, or within 80 engine operating hours after the effective date of this AD, whichever occurs later, replace the front support with a part eligible for installation.

    (h) Definition

    For the purpose of this AD, a part eligible for installation is a Module 01 with a pre-mod TU 197 front support, that has not accumulated more than 1,680 engine operating hours since new; or a Module 01 with a post-mod TU 197 front support.

    (i) Installation Prohibition

    As of the effective date of this AD, you may not install a pre-mod TU 197 front support on any engine with a post-mod TU 197 front support installed.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, FAA, ECO Branch, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ECO Branch, send it to the attention of the person identified in paragraph (k)(1) of this AD. You may email your request to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (k) Related Information

    (1) For more information about this AD, contact Robert Green, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    (2) Refer to EASA AD 2016-0235, dated November 24, 2016, for more information. You may examine the EASA AD in the AD docket on the internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2017-0838.

    (l) Material Incorporated by Reference

    None.

    Issued in Burlington, Massachusetts, on May 1, 2018. Karen M. Grant, Acting Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-09466 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0721; Airspace Docket No. 17-AGL-15] Amendment of Class E Airspace; Charlotte, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies Class E airspace extending upward from 700 feet above the surface at Fitch H. Beach Airport, Charlotte, MI, due to the decommissioning of the Lansing VHF omnidirectional range (VOR) and collocated tactical air navigation (TACAN) which provided navigation guidance for the instrument procedures to this airport. The Lansing VOR/TACAN is being decommissioned as part of the VOR Minimum Operational Network (MON) Program. This action enhances safety and management of instrument flight rules (IFR) operations at this airport. Additionally, the geographic coordinates of the airport are being adjusted to coincide with the FAA's aeronautical database. An editorial change is also being made removing the city associated with the airport name in the airspace legal designation.

    DATES:

    Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    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:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    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 amends the Class E airspace extending upward from 700 feet above the surface at Fitch H. Beach Airport, Charlotte, MI, to support IFR operations for instrument approach procedures at the airport.

    History

    The FAA published notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 44541; September 25, 2017) for Docket No. FAA-2017-0721 to modify the Class E airspace extending upward from 700 feet above the surface at Fitch H. Beach Airport, Charlotte, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received stating “. . . increasing one class of airspace would diminish the boundary between two. This would require the Pilot In Command to request access in their airspace.”

    The FAA does not agree. The airspace classification, currently Class E airspace extending upward from 700 feet above the surface, is being amended to increase the radius of the airspace by 0.1 mile to fully protect the transitional IFR requirements to and from the terminal and en route environments at Fitch H. Beach Airport, Charlotte, MI, as required by FAA Order 7400.2L, Procedures for Handling Airspace Matters. This amendment only affects the class E airspace extending upward from 700 feet above the surface at Fitch H. Beach Airport and does not affect or impact any other airspace within the area. This amendment does not change the class of airspace, and therefore does not change any of the current requirements on the pilot in command when operating at Fitch H. Beach Airport.

    Due to a recent change to FAA Order 7400.2L, dated October 12, 2017, the name of the city associated with the airport is removed from the airspace legal designation.

    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 designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace area extending upward from 700 feet above the surface within a 6.4-mile radius (increased from a 6.3-mile radius) at Fitch H. Beach, Charlotte, MI, and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

    The name of the city associated with the airport is removed from the airspace legal designation to comply with a recent change to FAA Order 7400.2L. Except for the change noted above, this rule is the same as published in the NPRM.

    Airspace reconfiguration is necessary due to the decommissioning of the Lansing VOR/TACAN, which provided navigation guidance for the instrument procedures to this airport, as part of the VOR MON Program. This action enhances safety and the management of IFR operations at this airport.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL MI E5 Charlotte, MI [Amended] Fitch H. Beach Airport, MI (Lat. 42°34′27″ N, long. 84°48′44″ W)

    That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Fitch H. Beach Airport.

    Issued in Fort Worth, Texas, on April 30, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-09562 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1002; Airspace Docket No. 17-ACE-12] RIN 2120-AA66 Amendment of Class E Airspace; Muscatine, IA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies Class E airspace designated as a surface area and Class E airspace extending upward from 700 feet above the surface at Muscatine Municipal Airport, Muscatine, IA. This action is required due to the decommissioning of the Port City VHF omnidirectional range (VOR) facility, which provided navigation guidance for the instrument procedures to this airport. The VOR has been decommissioned as part of the VOR Minimum Operational Network (MON) Program.

    DATES:

    Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    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:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    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 amends Class E airspace designated as a surface area and Class E airspace extending upward from 700 feet above the surface at Muscatine Municipal Airport, Muscatine, IA, to support instrument flight rules (IFR) operations at the airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 61698; December 29, 2017) for Docket No. FAA-2017-1002 to modify Class E airspace designated as a surface area and Class E airspace extending upward from 700 feet above the surface at Muscatine Municipal Airport, Muscatine, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Class E airspace designations are published in paragraph 6002 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 E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    The FAA amends Title 14, Code of Federal Regulations (14 CFR) part 71 by:

    Modifying Class E airspace designated as a surface area to within a 4.1-mile radius (increased from a 3.9-mile radius) of Muscatine Municipal Airport, Muscatine, IA, with an extension 1.0 mile either side of the 305° bearing from the airport from the 4.1-mile radius to 4.4 miles northwest of the airport, and an extension 1.0 mile either side of the 238° bearing from the airport from the 4.1-mile radius to 4.4 miles southwest of the airport. This action also makes an editorial change to the airspace legal description replacing “Airport/Facility Directory” with “Chart Supplement”; and

    Modifying Class E airspace extending upward from 700 feet above the surface at Muscatine Municipal Airport by removing the Port City VOR/DME from the airspace description, removing the extensions referencing the Port City VOR/DME, and adding an extension 3.8 miles either side of the 238° bearing from the airport from the 6.6-mile radius to 10.5 miles southwest of the airport.

    Airspace reconfiguration is necessary due to the decommissioning of the Port City VOR as part of the VOR MON Program, and to bring the airspace and airspace descriptions into compliance with FAA Order 7400.2L, Procedures for Handling Airspace Matters. Controlled airspace is necessary for the safety and management of IFR operations at the airport.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6002 Class E Airspace Areas Designated as Surface Areas. ACE IA E2 Muscatine, IA [Amended] Muscatine Municipal Airport, IA (Lat. 41°22′04″ N, long. 91°08′54″ W)

    Within a 4.1-mile radius of Muscatine Municipal Airport, and within 1.0 mile either side of the 305° bearing from the airport from the 4.1-mile radius to 4.4 miles northwest of the airport, and within 1.0 mile either side of the 238° bearing from the airport from the 4.1-mile radius to 4.4 miles southwest of the airport. This Class E airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE IA E5 Muscatine, IA [Amended] Muscatine Municipal Airport, IA (Lat. 41°22′04″ N, long. 91°08′54″ W)

    That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Muscatine Municipal Airport and within 3.8 miles either side of the 238° bearing from the airport from the 6.6-mile radius to 10.5 miles southwest of the airport.

    Issued in Fort Worth, Texas, on April 25, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-09403 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0740; Airspace Docket No. 17-AGL-18] RIN 2120-AA66 Amendment of Class E Airspace; Milwaukee, WI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies Class E airspace extending upward from 700 feet above the surface at Batten International Airport, Racine, WI, contained within the Milwaukee, WI, airspace description. This action is required due to the decommissioning of the Horlick VHF omnidirectional range (VOR) which provided navigation guidance for the standard instrument approach procedures to this airport. The Horlick VOR is being decommissioned as part of the VOR Minimum Operational Network (MON) Program. This action enhances the safety and management of instrument flight rules (IFR) operations at the airport.

    DATES:

    Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    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:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    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 amends Class E airspace extending upward from 700 feet above the surface at Batten International Airport, Racine, WI, contained within the Milwaukee, WI, airspace description, to support IFR operations at the airport.

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 44365; September 22, 2017) for Docket No. FAA-2017-0740 to modify Class E airspace extending upward from 700 feet above the surface at Batten International Airport, Racine, WI, contained within the Milwaukee, WI, airspace legal description. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    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 designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace area extending upward from 700 feet above the surface to within a 6.6-mile radius (decreased from an 8.1-mile radius) at Batten International Airport, Racine, WI, contained within the Milwaukee, WI, airspace legal description.

    Airspace reconfiguration is necessary due to the decommissioning of the Horlick VOR, which provided navigation guidance for the instrument procedures to this airport, as part of the VOR MON Program. This action enhances safety and the management of IFR operations at this airport.

    The names of the cities associated with the airports listed in the Milwaukee, WI, airspace designation have been removed to comply with a recent change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

    Except for the change noted above, this rule is the same as published in the NPRM.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL WI E5 Milwaukee, WI [Amended] General Mitchell International Airport, WI (Lat. 42°56′49″ N, long. 87°53′49″ W) Batten International Airport, WI (Lat. 42°45′40″ N, long. 87°48′50″ W) Waukesha County Airport, WI (Lat. 43°02′28″ N, long. 88°14′13″ W) Lawrence J. Timmerman Airport, WI (Lat. 43°06′37″ N, long. 88°02′04″ W)

    That airspace extending upward from 700 feet above the surface within an 8.4-mile radius of General Mitchell International Airport, and within a 6.6-mile radius of Batten International Airport, and within a 7.5-mile radius of Waukesha County Airport, and within 2 miles each side of the 282° bearing from Waukesha County Airport extending from the 7.5-mile radius to 10.5 miles west of Waukesha County Airport, and within an 8.9-mile radius of Lawrence J. Timmerman Airport.

    Issued in Fort Worth, Texas, on April 30, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-09561 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 573 [Docket No. FDA-2014-F-1509] Food Additives Permitted in Feed and Drinking Water of Animals; Marine Microalgae AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA, we, or the Agency) is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of dried marine microalgae as a source of docosahexaenoic acid (DHA) for use in complete, dry foods for adult dogs. This action is in response to a food additive petition filed by DSM Nutritional Products.

    DATES:

    This rule is effective May 7, 2018. See section V of this document for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by June 6, 2018.

    ADDRESSES:

    You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before June 6, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of June 6, 2018. Objections received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic objections in the following way:

    • Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting objections. Objections submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on https://www.regulations.gov.

    • If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2014-F-1509 for “Food Additives Permitted in Feed and Drinking Water of Animals; Marine Microalgae.” Received objections, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies in total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of objections. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your objections and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper objections received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl. (HFV-224), Rockville, MD 20855, 240-402-6729, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    In a document published in the Federal Register of October 16, 2014 (79 FR 62090), FDA announced that we had filed a food additive petition (animal use) (FAP 2288) submitted by DSM Nutritional Products, 45 Waterview Blvd., Parsippany, NJ 07054. The petition proposed that the regulations for food additives permitted in feed and drinking water of animals be amended to provide for the safe use of Schizochytrium sp. dried marine microalgae as a source of DHA for use in complete, dry foods for adult dogs.

    II. Conclusion

    FDA concludes that the data establish the safety and utility of Schizochytrium sp. dried marine microalgae as a source of DHA for use in complete, dry foods for adult dogs and that the food additive regulations should be amended as set forth in this document. This is not a significant regulatory action subject to Executive Order 12866.

    III. Public Disclosure

    In accordance with § 571.1(h) (21 CFR 571.1(h)), the petition and documents we considered and relied upon in reaching our decision to approve the petition will be made available for inspection at the Center for Veterinary Medicine by appointment with the information contact person (see FOR FURTHER INFORMATION CONTACT). As provided in § 571.1(h), we will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

    IV. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.32(r) 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.

    V. Objections and Hearing Requests

    Any person who will be adversely affected by this regulation may file with the Dockets Management Staff (see ADDRESSES) either electronic or written objections. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provision of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection.

    List of Subjects in 21 CFR Part 573

    Animal feeds, Food additives.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 573 is amended as follows:

    PART 573—FOOD ADDITIVES PERMITTED IN FEED AND DRINKING WATER OF ANIMALS 1. The authority citation for part 573 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348.

    2. Add § 573.615 to subpart B to read as follows:
    § 573.615 Marine microalgae.

    The food additive, marine microalgae, may be safely used as a source of docosahexaenoic acid (DHA) and other omega-3 fatty acids in accordance with the following prescribed conditions:

    (a) The additive is dried whole cells of nonviable, nontoxigenic, nonpathogenic Schizochytrium sp. algae grown as a pure culture.

    (b) The additive is used in complete, dry adult maintenance food for dogs in accordance with good manufacturing and feeding practices not to exceed 16.5 pounds per ton (7.5 kilograms (kg) per 1000 kg) of complete, dry, adult maintenance dog food.

    (c) The additive consists of not less than 17.0 percent (4Z,7Z,10Z,13Z,16Z,19Z)-docosa-4,7,10,13,16,19-hexaenoic acid (docosahexaenoic acid or DHA).

    (d) The additive meets the following specifications:

    (1) Not less than 40 percent crude fat;

    (2) Not more than 12 percent ash;

    (3) Not more than 8 percent unsaponifiable matter;

    (4) Not more than 5 percent insoluble impurities;

    (5) Not more than 5 percent free fatty acids; and

    (6) Not more than 6 percent water.

    (e) To ensure the safe use of the additive, in addition to other information required by the Federal Food, Drug, and Cosmetic Act:

    (1) The label and labeling of the additive, any feed premix, and complete feed, shall contain the name of the additive, marine microalgae.

    (2) The label and labeling of the additive and any feed premix shall also contain:

    (i) A statement to indicate that the maximum use level of the additive shall not exceed 16.5 pounds per ton (7.5 kg per 1000 kg) of complete, dry, adult maintenance dog food.

    (ii) Adequate directions for use.

    Dated: May 1, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-09636 Filed 5-4-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 600 [Docket No. FDA-2017-N-7007] RIN 0910-AH49 Removal of Certain Time of Inspection and Duties of Inspector Regulations for Biological Products; Withdrawal AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Direct final rule; withdrawal.

    SUMMARY:

    The Food and Drug Administration (FDA) published in the Federal Register of January 26, 2018, a direct final rule to amend the general biologics regulations relating to time of inspection requirements and to also remove duties of inspector requirements. The comment period closed April 11, 2018. FDA is withdrawing the direct final rule because the Agency received significant adverse comment.

    DATES:

    The direct final rule published at January 26, 2018 (83 FR 3586), is withdrawn effective May 7, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Segal, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.

    SUPPLEMENTARY INFORMATION:

    Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, the direct final rule published on January 26, 2018 (83 FR 3586) is withdrawn.

    Dated: May 1, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-09589 Filed 5-4-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA-2018-0003] RIN 1218-AB76 Revising the Beryllium Standard for General Industry AGENCY:

    Occupational Safety and Health Administration (OSHA), Department of Labor.

    ACTION:

    Direct final rule; request for comment.

    SUMMARY:

    On January 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule adopting a comprehensive general industry standard for exposure to beryllium and beryllium compounds. In this Direct Final Rule (DFR), OSHA is adopting a number of clarifying amendments to address the application of the standard to materials containing trace amounts of beryllium. OSHA believes this rule will maintain safety and health protections for workers while reducing the burden to employers of complying with the current rule.

    DATES:

    This DFR will become effective on July 6, 2018 unless significant adverse comment is submitted (transmitted, postmarked, or delivered) by June 6, 2018. If DOL receives significant adverse comment, the Agency will publish a timely withdrawal in the Federal Register informing the public that this DFR will not take effect (see Section III, “Direct Final Rulemaking,” for more details on this process). Comments to this DFR, hearing requests, and other information must be submitted (transmitted, postmarked, or delivered) by June 6, 2018. All submissions must bear a postmark or provide other evidence of the submission date.

    ADDRESSES:

    The public can submit comments, hearing requests, and other material, identified by Docket No. OSHA-2018-0003, using any of the following methods:

    Electronically: Submit comments and attachments, as well as hearing requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions online for submitting comments. Note that this docket may include several different Federal Register notices involving active rulemakings, so it is extremely important to select the correct notice or its ID number when submitting comments for this rulemaking. After accessing “all documents and comments” in the docket (OSHA-2018-0003), check the “Rule” box in the column headed “Document Type,” find the document posted on the date of publication of this document, and click the “Submit a Comment” link. Additional instructions for submitting comments are available from the http://www.regulations.gov homepage.

    Facsimile: OSHA allows facsimile transmission of comments that are 10 pages or fewer in length (including attachments). Fax these documents to the OSHA Docket Office at (202) 693-1648. OSHA does not require hard copies of these documents. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210. These attachments must clearly identify the sender's name, the date, the subject, and the docket number (OSHA-2018-0003) so that the Docket Office can attach them to the appropriate document.

    Regular mail, express delivery, hand delivery, and messenger (courier) service: Submit comments and any additional material to the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The Docket Office will accept deliveries (express delivery, hand delivery, messenger service) during the Docket Office's normal business hours, 10:00 a.m. to 3:00 p.m., ET.

    Instructions: All submissions must include the Agency's name, the title of the rulemaking (Beryllium Standard: Direct Final Rule), and the docket number (OSHA-2018-0003). OSHA will place comments and other material, including any personal information, in the public docket without revision, and the comments and other material will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others), such as Social Security Numbers, birth dates, and medical data.

    Docket: To read or download comments or other material in the docket, go to http://www.regulations.gov or to the OSHA Docket Office at the above address. The electronic docket for this direct final rule established at http://www.regulations.gov contains most of the documents in the docket. However, some information (e.g., copyrighted material) is not available publicly to read or download through this website. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

    FOR FURTHER INFORMATION CONTACT:

    Press inquiries: Mr. Frank Meilinger, OSHA Office of Communications, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-1999; email: [email protected]

    General information and technical inquiries: William Perry or Maureen Ruskin, Directorate of Standards and Guidance, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3718, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-1950.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Consideration of Comments III. Direct Final Rulemaking IV. Discussion of Changes V. Legal Considerations VI. Final Economic Analysis and Regulatory Flexibility Act Certification VII. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act of 1995 VIII. Federalism IX. State Plan States X. Unfunded Mandates Reform Act I. Background

    On January 9, 2017, OSHA published its final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82 FR 2470). OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding permissible exposure limits (PELs) were at significant risk of material impairment of health, specifically chronic beryllium disease and lung cancer. OSHA concluded that the new 8-hour time-weighted average (TWA) PEL of 0.2 µg/m3 reduced this significant risk to the maximum extent feasible. Based on information submitted to the record, in the final rule OSHA issued three separate standards—general industry, shipyards, and construction. In addition to the revised PEL, the final rule established a new short-term exposure limit (STEL) of 2.0 µg/m3 over a 15-minute sampling period and an action level of 0.1 µg/m3 as an 8-hour TWA, along with a number of ancillary provisions intended to provide additional protections to employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping similar to those found in other OSHA health standards.

    This DFR amends the text of the beryllium standard for general industry to clarify OSHA's intent with respect to certain terms in the standard, including the definition of Beryllium Work Area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. It also clarifies OSHA's intent with respect to provisions for disposal and recycling and with respect to provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight.

    This direct final rule is expected to be an Executive Order (E.O.) 13771 deregulatory action. Details on OSHA's cost/cost savings estimates for this direct final rule can be found in the rule's economic analysis. OSHA has estimated that, at a 3 percent discount rate over 10 years, there are net annual cost savings of $0.36 million per year for this direct final rule; at a discount rate of 7 percent, there are net annual cost savings of $0.37 million per year. When the Department uses a perpetual time horizon, the annualized cost savings of the direct final rule is $0.37 million with 7 percent discounting. While the 2017 Beryllium Final Rule went into effect on May 20, 2017, compliance obligations do not begin until May 11, 2018.

    II. Consideration of Comments

    OSHA will consider comments on all issues related to this action including economic or other regulatory impacts of this action on the regulated community. If OSHA receives no significant adverse comment, OSHA will publish a Federal Register document confirming the effective date of this DFR and withdrawing the companion Notice of Proposed Rulemaking (NPRM). Such confirmation may include minor stylistic or technical changes to the document. For the purpose of judicial review, OSHA views the date of confirmation of the effective date of this DFR as the date of promulgation.

    III. Direct Final Rulemaking

    In direct final rulemaking, an agency publishes a DFR in the Federal Register, with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. The agency may publish an identical concurrent NPRM. If the agency receives no significant adverse comment in response to the DFR, the rule goes into effect. OSHA typically confirms the effective date of a DFR through a separate Federal Register document. If the agency receives a significant adverse comment, the agency withdraws the DFR and treats such comment as a response to the NPRM. An agency typically uses direct final rulemaking when an agency anticipates that a rule will not be controversial.

    For purposes of this DFR, a significant adverse comment is one that explains why the amendments to OSHA's beryllium standard would be inappropriate. In determining whether a comment necessitates withdrawal of the DFR, OSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. OSHA will not consider a comment recommending an additional amendment to this rule to be a significant adverse comment unless the comment states why the DFR would be ineffective without the addition.

    In addition to publishing this DFR, OSHA is publishing a companion NPRM in the Federal Register. The comment period for the NPRM runs concurrently with that of the DFR. OSHA will treat comments received on the companion NPRM as comments also regarding the DFR. Similarly, OSHA will consider significant adverse comment submitted to the DFR as comment to the companion NPRM. Therefore, if OSHA receives a significant adverse comment on either this DFR or the NPRM, it will withdraw this DFR and proceed with the companion NPRM. In the event OSHA withdraws the DFR because of significant adverse comment, OSHA will consider all timely comments received in response to the DFR when it continues with the NPRM. After carefully considering all comments to the DFR and the NPRM, OSHA will decide whether to publish a new final rule.

    OSHA determined that the subject of this rulemaking is suitable for direct final rulemaking. This amendment to the standard is clarifying in nature and does not adversely impact the safety or health of employees. The amended standard will clarify OSHA's intent regarding certain terms in the standard, including the definition of Beryllium Work Area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. It will also clarify OSHA's intent with respect to provisions for disposal and recycling and with respect to provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight. The revisions do not impose any new costs or duties. For these reasons, OSHA does not anticipate objections from the public to this rulemaking action.

    IV. Discussion of Changes

    On January 9, 2017, OSHA adopted comprehensive standards addressing exposure to beryllium and beryllium compounds in general industry, construction, and shipyards. 82 FR 2470. Beryllium “occurs naturally in rocks, soil, coal, and volcanic dust,” but can cause harm to workers through exposure in the workplace. 80 FR 47579. OSHA has thus set a general industry exposure limit for beryllium and beryllium compounds since 1971, modified most recently in 2017. See 80 FR 47578-47579; 82 FR 2471. This DFR amends that 2017 general industry beryllium standard (codified at 29 CFR 1910.1024) to clarify its applicability to materials containing trace amounts of beryllium and to make related changes. This DFR does not affect the construction and shipyard standards, which are being addressed in a separate rulemaking. See 82 FR 29182.

    During the last rulemaking, OSHA addressed the issue of trace amounts of beryllium. In its notice of proposed rulemaking, OSHA proposed to exempt from its beryllium standard materials containing less than 0.1% beryllium by weight on the premise that workers in exempted industries are not exposed at levels of concern, 80 FR 47775, but noted evidence of high airborne exposures in some of those industries, in particular the primary aluminum production and coal-fired power generation industries. 80 FR 47776. Therefore, OSHA proposed for comment several regulatory alternatives, including an alternative that would “expand the scope of the proposed standard to also include all operations in general industry where beryllium exists only as a trace contaminant.” 80 FR 47730. After receiving comment, OSHA adopted in the final rule an alternative limiting the exemption for materials containing less than 0.1% beryllium by weight to where the employer has objective data demonstrating that employee exposure to airborne beryllium will remain below the action level (AL) of 0.1 µg/m3, measured as an 8-hour TWA, under any foreseeable conditions. 29 CFR 1910.1024(a)(2). In doing so, OSHA noted that the AL exception ensured that workers with airborne exposures of concern were covered by the standard:

    OSHA agrees with the many commenters and testimony expressing concern that materials containing trace amounts of beryllium (less than 0.1 percent by weight) can result in hazardous [airborne] exposures to beryllium. We disagree, however, with those who supported completely eliminating the exemption because this could have unintended consequences of expanding the scope to cover minute amounts of naturally occurring beryllium (Ex 1756 Tr. 55). Instead, we believe that alternative #1b—essentially as proposed by Materion and USW [United Steelworkers] and acknowledging that workers can have significant [airborne] beryllium exposures even with materials containing less than 0.1%—is the most appropriate approach. Therefore, in the final standard, it is exempting from the standard's application materials containing less than 0.1% beryllium by weight only where the employer has objective data demonstrating that employee [airborne] exposure to beryllium will remain below the action level as an 8-hour TWA under any foreseeable conditions. 82 FR 2643.

    As the regulatory history makes clear, OSHA intended to protect employees working with trace beryllium only when it caused airborne exposures of concern. OSHA did not intend for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium. Since the publication of the final rule, however, stakeholders have suggested that an unintended consequence of the final rule's revision of the trace exemption is that provisions designed to protect workers from dermal contact with beryllium-contaminated material could be read as applying to materials with only trace amounts of beryllium.

    This DFR adjusts the regulatory text of the general industry beryllium standard to clarify that OSHA does not intend for requirements that primarily address dermal contact to apply in processes, operations, or areas involving only materials containing less than 0.1% beryllium by weight. These clarifications are made through changes to the definition of beryllium work area; the addition of definitions of dermal contact, beryllium-contaminated, and contaminated with beryllium; clarifications of certain hygiene provisions with respect to beryllium contamination; and the clarifications to provisions for disposal and recycling. In addition, because under these changes it is possible to have a regulated area that is not a beryllium work area, this DFR makes changes to certain housekeeping provisions to ensure they apply in all regulated areas. Finally, this DFR also includes a change to the definition of “emergency”, adding detail to the definition so as to clarify the nature of the circumstances OSHA intends to be considered an emergency for the purposes of the standard.

    Definition of beryllium work area. Paragraph (b) of the beryllium standard published in January 2017 defined a beryllium work area as any work area containing a process or operation that can release beryllium where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium. This DFR amends the definition as follows: “Beryllium work area means any work area: (1) Containing a process or operation that can release beryllium and that involves materials that contain at least 0.1% beryllium by weight; and (2) where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium.” This change clarifies OSHA's intent that many of the provisions associated with beryllium work areas should only apply to areas where there are processes or operations involving materials at least 0.1% beryllium by weight.

    Specifically, this change to the beryllium work area definition clarifies OSHA's intent that the following provisions associated with beryllium work areas do not apply where processes and operations involve only materials containing trace amounts of beryllium (less than 0.1% beryllium by weight): Establishing and demarcating beryllium work areas (paragraphs (e)(1)(i) and (e)(2)(i)); including procedures for minimizing cross-contamination within (paragraph (f)(1)(i)(D)) or minimizing migration of beryllium out of (paragraph (f)(1)(i)(F)) such areas in the written exposure control plan; ensuring that at least one engineering or process control is in place to reduce beryllium exposure where airborne beryllium levels meet or exceed the AL (revised paragraph (f)(2)(ii)).1 Additionally, for areas where beryllium is only present in materials at concentrations of less than 0.1% beryllium by weight, unless that area is also a regulated area, employers are not required to ensure that all surfaces in such areas are as free as practicable of beryllium (paragraph (j)(1)(i)); ensure that all surfaces in such areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure (paragraph (j)(2)(i)); or prohibit dry sweeping or brushing for cleaning surfaces in such areas (paragraph (j)(2)(ii)).

    1 As explained in the preamble to the January 2017 rule, in industries that process or handle materials with only trace amounts of beryllium and that encounter exposures to beryllium above the action level, the PEL would “be exceeded only during operations that generate [an] excessive amount of visible airborne dust.” 82 FR 2583. OSHA therefore expects that if exposures in such a facility are below the PEL but above the AL, there is already at least one engineering or process control in place, so this requirement had no effect on primary aluminum production or coal-fired utilities. The 2017 FEA explained that this provision would only require additional controls in two job categories in two application groups, neither of which are in primary aluminum production or coal-fired utilities. (Document ID OSHA-H005C-2006-0870-2042, p. V-12).

    This DFR also includes conforming changes to maintain the January 2017 rule's requirements for housekeeping in regulated areas. Because all regulated areas were also beryllium work areas under the January 2017 beryllium standard, OSHA did not specify whether requirements for beryllium work areas should also apply in regulated areas (areas in which airborne beryllium exposure meets or exceeds the TWA PEL or STEL). This DFR's clarification to the definition of beryllium work area, however, means that it is possible for a work area to be a regulated area, but not a beryllium work area. This would occur when processes that involve only materials containing less than 0.1% beryllium by weight nevertheless create airborne beryllium exposures at or above the TWA PEL or STEL. 82 FR 2583. It is thus important to clarify that housekeeping (paragraph (j)) requirements continue to apply in regulated areas, even if the processes or operations in these areas involve materials with only trace beryllium. Operations or processes involving trace beryllium materials must generate extremely high dust levels in order to exceed the TWA PEL or STEL. Following the housekeeping methods required by paragraph (j) will help to protect workers against resuspension of surface beryllium accumulations from extremely dusty operations and limit workers' airborne exposure to beryllium.

    The DFR accordingly amends paragraphs (j)(1)(i), (j)(2)(i), and (j)(2)(ii) to state explicitly that they apply to regulated areas, as follows. Paragraph (j)(1)(i), as amended, states that “[t]he employer must maintain all surfaces in beryllium work areas and regulated areas as free as practicable of beryllium and in accordance with the written exposure control plan required under paragraph (f)(1) and the cleaning methods required under paragraph (j)(2) of this standard.” Paragraph (j)(2)(i), as amended, states that “[t]he employer must ensure that surfaces in beryllium work areas and regulated areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure.” Paragraph (j)(2)(ii), as amended, states that “[t]he employer must not allow dry sweeping or brushing for cleaning surfaces in beryllium work areas or regulated areas unless HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure are not safe or effective.”

    This DFR also makes conforming changes to the engineering controls requirements to ensure that the hierarchy of controls continues to apply in all regulated areas. Paragraph (f)(2) of the January 2017 beryllium standard provided that, if airborne exposures still exceed the PEL or STEL after implementing at least one control for each operation in a beryllium work area that releases airborne beryllium, the employer must implement additional or enhanced engineering and work practice controls to reduce airborne exposure to or below the limit exceeded. OSHA intended this provision to apply to all operations within the scope of the standard that can release airborne beryllium. 82 FR 2671-72. Because, under this DFR's revisions, not all regulated areas will be beryllium work areas, this DFR rearranges the regulatory text of paragraph (f)(2) to make clear that the hierarchy of controls will continue to apply in regulated areas that are not beryllium work areas.

    Definitions related to beryllium contamination. To further clarify OSHA's intent that the standard's requirements aimed at reducing the effect of dermal contact with beryllium should not apply to areas where there are no processes or operations involving materials containing at least 0.1% beryllium by weight, this DFR defines “beryllium-contaminated or contaminated with beryllium” and adds those terms to certain provisions in the standard. The DFR defines those terms as follows: “Contaminated with beryllium and beryllium-contaminated mean contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight.” The DFR adds the terms to certain provisions in the standard's requirements for hygiene areas and disposal and recycling.

    The use of this definition accordingly clarifies OSHA's intent that the following provisions, which apply where clothing, hair, skin, or work surfaces are beryllium-contaminated, do not apply where the contaminating material contains less than 0.1% beryllium by weight: Paragraph (h)(2)(i) and paragraph (h)(2)(ii), which require the employer to ensure that each employee removes all beryllium-contaminated personal protective clothing and equipment at the appropriate time and as specified in the written exposure control plan required by paragraph (f)(1); and paragraph (h)(2)(iii) and paragraph (h)(2)(iv), which require the employer to ensure that measures to prevent cross contamination between beryllium-contaminated personal protective clothing and equipment and street clothing are observed and that beryllium-contaminated personal protective clothing and equipment are not removed from the workplace. This DFR also amends paragraph (h)(3)(ii), which requires the employer to ensure that beryllium is properly removed from PPE, by adding the term “beryllium-contaminated” so that this requirement applies only where the contaminating material contains at least 0.1% beryllium by weight. The amended paragraph (h)(3)(ii) reads as follows: “The employer must ensure that beryllium is not removed from beryllium-contaminated personal protective clothing and equipment by blowing, shaking, or any other means that disperses beryllium into the air.”

    Similarly, the DFR's inclusion of the term “contaminated with beryllium” in paragraphs (i)(3)(i)(B) and (i)(3)(ii)(B) clarifies OSHA's intent that those provisions, which require employers to provide and ensure use of showers where employees' hair or body parts other than hands, face, and neck can reasonably be expected to become contaminated with beryllium, do not apply where the contaminating material contains less than 0.1% beryllium by weight.

    The DFR's adoption of the definition of “beryllium-contaminated” further clarifies the application of certain requirements that are meant to minimize re-entrainment of airborne beryllium and reduce the effect of dermal contact with beryllium. Specifically, it clarifies that paragraph (j)(2)(iii), which prohibits the use of compressed air for cleaning beryllium-contaminated surfaces except where used in conjunction with an appropriate ventilation system, and paragraph (j)(2)(iv), which requires the use of respiratory protection and PPE in accordance with paragraphs (g) and (h) of the standard when dry sweeping, brushing, or compressed air are used to clean beryllium-contaminated surfaces, do not apply where the contaminating material contains less than 0.1% beryllium by weight. OSHA does not expect the additional airborne exposure from dry brushing, sweeping, or using compressed air to significantly increase the levels of airborne exposure outside regulated areas when working with trace beryllium. This is because for trace beryllium to generate airborne exposures of concern, excessive amounts of dust would need to be generated, and this would not happen outside of regulated areas.

    This DFR also adds the term “beryllium-contaminated” to certain requirements pertaining to eating and drinking areas to clarify that hygiene requirements in these areas apply only where materials containing more than 0.1% beryllium by weight may contaminate such areas. Paragraph (i)(4)(i), as amended by this DFR, states that wherever the employer allows employees to consume food or beverages at a worksite where beryllium is present, the employer must ensure that “[b]eryllium-contaminated surfaces in eating and drinking areas are as free as practicable of beryllium.” Paragraph (i)(4)(ii), as amended by this DFR, requires employers to ensure that “[n]o employees enter any eating or drinking area with beryllium-contaminated personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not disperse beryllium into the air or onto an employee's body.”

    Definition of dermal contact with beryllium. To clarify OSHA's intent that requirements of the standard associated with dermal contact with beryllium should not apply to areas where there are no processes or operations involving materials at least 0.1% beryllium by weight, this DFR also adds a definition for dermal contact with beryllium. This new definition provides, “Dermal contact with beryllium means skin exposure to: (1) Soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight; (2) solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight; or (3) dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight.” Accordingly, the definition clarifies that paragraph (h)(1)(ii), which requires an employer to provide and ensure the use of personal protective clothing and equipment where there is a reasonable expectation of dermal contact with beryllium, applies only where contact may occur with materials containing at least 0.1% beryllium by weight. This definition also clarifies that the requirements related to dermal contact in the written exposure control plan, washing facilities, medical examinations, and training provisions only apply where contact may occur with materials containing at least 0.1% beryllium by weight.

    Definition of emergency. This DFR also clarifies the definition of “emergency” in paragraph (b) of the beryllium standard published in January 2017. That paragraph defined an emergency as “any uncontrolled release of airborne beryllium.” This DFR amends the definition as follows: “Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment, which may or does result in an uncontrolled and unintended release of airborne beryllium that presents a significant hazard.” This change clarifies the circumstances under which the provisions associated with emergencies should apply, including the requirements that employers provide and ensure employee use of respirators and that employers provide medical surveillance to employees exposed in an emergency. This change is consistent with OSHA's intent as explained in the preamble to the 2017 final rule. 82 FR 2690 (“An emergency could result from equipment failure, rupture of containers, or failure of control equipment, among other causes.”). These examples show OSHA's intent to define an “emergency” as something unintended as well as uncontrolled, and including the examples in the new definition make that clear. It is also consistent with other OSHA standards, such as methylenedianiline (1910.1050), vinyl chloride (1910.1017), acrylonitrile (1910.1045), benzene (1910.1028), and ethylene oxide (1910.1047).

    Disposal and recycling. Finally, this DFR clarifies the application of the disposal and recycling provisions. Paragraph (j)(3) of the beryllium standard published in January 2017 required employers to ensure that materials designated for disposal that contain or are contaminated with beryllium are disposed of in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of the standard. It also required that materials designated for recycling which contain or are contaminated with beryllium are cleaned to be as free as practicable of surface beryllium contamination and labeled in accordance with paragraph (m)(3) of the standard, or placed in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of the standard. These provisions were designed to protect workers from dermal contact with beryllium dust generated during processing, where there is a risk of beryllium sensitization. See 82 FR 2694, 2695. This DFR accordingly limits those requirements to “materials that contain beryllium in concentrations of 0.1 percent by weight or more or are contaminated with beryllium,” consistent with OSHA's intention that provisions aimed at protecting workers from the effects of dermal contact do not apply in the case of materials containing only trace amounts of beryllium. The hazard communication standard continues to apply according to its terms. See 29 CFR 1910.1200.

    V. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970) (“OSH Act”; 29 U.S.C. 651 et seq.) is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 655(b), 658. A safety or health standard is a standard that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate when a significant risk of material harm exists in the workplace and the standard would substantially reduce or eliminate that workplace risk. See Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980) (plurality opinion).

    OSHA need not make additional findings on risk for this DFR. As discussed above, this DFR will not diminish the employee protections put into place by the standard being amended. And because OSHA previously determined that the beryllium standard substantially reduces a significant risk (82 FR 2545-52), it is unnecessary for the Agency to make additional findings on risk for the minor changes and clarifications being made to the standard. See, e.g., Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA must “find that each and every aspect of its standard eliminates a significant risk”).

    OSHA has determined that these minor changes and clarifications are technologically and economically feasible. All OSHA standards must be both technologically and economically feasible. See United Steelworkers v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1980) (“Lead I”). The Supreme Court has defined feasibility as “capable of being done.” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (“Cotton Dust”). Courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, “within the limits of the best available evidence . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the PEL in most of its operations.” Lead I, 647 F.2d at 1272. With respect to economic feasibility, courts have held that “a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.” Id. at 1265 (internal quotation marks and citations omitted). In the final economic analysis (FEA) for the 2017 beryllium rule, OSHA concluded that the rule was economically and technologically feasible. OSHA has determined that this DFR is also economically and technologically feasible, because it does not impose any new requirements or costs.

    VI. Final Economic Analysis and Regulatory Flexibility Act Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

    This DFR is not an “economically significant regulatory action” under Executive Order 12866, or a “major rule” under the Congressional Review Act (5 U.S.C. 801 et seq.), and its impacts do not trigger the analytical requirements of UMRA. Neither the benefits nor the costs of this DFR would exceed $100 million in any given year. This DFR would, however, result in a net cost savings for employers in primary aluminum production and coal-fired utilities, which are the only industries in General Industry covered by the 2017 Beryllium Final Rule that OSHA identified with operations involving materials containing only trace beryllium (less than 0.1% beryllium by weight).

    Several calculations illustrate the expected cost savings. At a discount rate of 3 percent, this DFR would yield annualized cost savings of $0.36 million per year for 10 years. At a discount rate of 7 percent, this DFR would yield an annualized cost savings of $0.37 million per year for 10 years. These net cost savings amount to approximately 0.6 percent of the original estimated cost of the 2017 Beryllium Final Rule for General Industry at discount rates of either 3 or 7 percent; to approximately 5.3 percent of the original estimated cost of the 2017 Beryllium Final Rule for primary aluminum production and coal-fired utilities only at a discount rate of 3 percent and 5.2 percent of the original estimated cost of the 2017 Beryllium Final Rule for primary aluminum production and coal-fired utilities only at a discount rate of 7 percent.2 Under a perpetual time horizon, the annualized cost savings of this DFR is $0.37 million at a discount rate of 7 percent.

    2 The original estimated cost of the 2017 beryllium final rule for General Industry, and separately for primary aluminum production and coal-fired utilities, was updated to 2017 dollars and additionally adjusted and corrected, as subsequently explained in the text.

    1. Changes to the Baseline: Updating to 2017 Dollars and Removing Familiarization Costs

    Because baseline costs typically reflect the costs of compliance without the changes set forth in an agency's action—in this case, the DFR—OSHA has revised the baseline costs, as displayed in the FEA in support of the beryllium standard of January 9, 2017, in two ways. First, OSHA updated the projected costs for general industry contained in the FEA that accompanied the rule from 2015 to 2017 dollars, using the latest Occupational Employment Statistics (OES) wage data (for 2016) and inflating them to 2017 dollars. Second, OSHA excluded certain familiarization costs, included in the cost estimates developed in the beryllium FEA for the 2017 Beryllium Final Rule, because OSHA expects that those costs have already been incurred by affected employers. Thus, the baseline costs for this FEA are the projected costs from the 2017 FEA, updated to 2017 dollars, less familiarization costs in the 2017 beryllium final rule (but including some new familiarization costs for employers to become familiar with the revised provisions). Throughout this analysis of costs and cost savings, the context is limited to employers in primary aluminum production and coal-fired utilities.

    2. Discussion of Overhead Costs

    As in the 2017 FEA, OSHA has not accounted for overhead labor costs in its analysis of the cost savings for this DFR due to concerns about consistency. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,3 and government contractors have been reported to use an average of 77 percent.4 Some overhead costs, such as advertising and marketing, may be more closely correlated with output than with labor. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but may change substantially with the addition of 100 employees. If an employer is able to rearrange current employees' duties to implement a rule, then the marginal share of overhead costs, such as rent, insurance, and major office equipment (e.g., computers, printers, copiers) would be very difficult to measure with accuracy.

    3 See Grant Thornton LLP. 2015 Government Contractor Survey (Document ID OSHA-H005C-2006-0870-2153). The application of this overhead rate was based on an approach used by the Environmental Protection Agency, as described in EPA's “Wage Rates for Economic Analyses of the Toxics Release Inventory Program,” June 10, 2002. This analysis itself was based on a survey of several large chemical manufacturing plants: Heiden Associates, Final Report: A Study of Industry Compliance Costs Under the Final Comprehensive Assessment Information Rule, Prepared for the Chemical Manufacturers Association, December 14, 1989.

    4 For further examples of overhead cost estimates, please see the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.

    If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this DFR would increase to approximately $0.39 million per year, at discount rates of either 3 percent or 7 percent.5 The addition of 17 percent overhead on base wages would therefore increase cost savings by approximately 7 percent above the primary estimate at either discount rate.

    5 OSHA used an overhead rate of 17 percent on base wages in a sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in support of the March 25, 2016 final respirable crystalline silica standards (81 FR 16286) and in the PEA in support of the June 27, 2017 proposed beryllium standards in construction and shipyard sectors (82 FR 29201).

    3. Cost Impact of the Changes to the Standard

    OSHA estimates a net cost savings from this DFR for employers at primary aluminum production and coal-fired utilities, which again are the only two industries identified in the 2017 FEA as having costs associated with exposure to trace beryllium materials.6 Annualizing the present value of net cost savings over ten years, the result is an annualized net cost savings of $0.36 million per year at a discount rate of 3 percent, or $0.37 million per year at a discount rate of 7 percent. When the Department uses a perpetual time horizon, the annualized net cost savings of this DFR is $0.37 million at a discount rate of 7 percent.

    6 As noted in Section IV of this preamble, coverage of dermal contact with trace beryllium materials was an unintended consequence of OSHA's decision to cover airborne exposures to beryllium above the action level caused by operations that generate excessive amounts of dust from trace beryllium materials. Likewise, in the 2017 FEA supporting OSHA's Beryllium Final Rule, through an oversight, OSHA made no distinction between trace and non-trace beryllium materials when determining the cost of requirements triggered by dermal contact with beryllium. The cost savings generated by this FEA are a result of correcting these oversights.

    The undiscounted cost savings by provision and year are presented below in Table 1, and the cost savings by provision and discount rate are shown below in Tables 2 and 3. As described elsewhere in this document, the cost savings described in this FEA reflect savings only for provisions covered by the changes in this DFR as well as added familiarization costs. OSHA estimated no cost savings for the PEL, respiratory protection, exposure assessment, regulated areas, medical surveillance, medical removal protection, written exposure control plan, or training provisions because the DFR makes no changes of substance to those provisions.

    a. Beryllium work areas. OSHA is limiting the definition of “beryllium work area” to any work area containing a process or operation “that involves materials that contain at least 0.1% beryllium by weight. . . .” OSHA has determined that affected establishments in primary aluminum production and coal-fired utilities would thus no longer need to designate and demarcate beryllium work areas because their materials would not meet that threshold outside of the “regulated areas” in primary aluminum production where employee exposures to airborne beryllium would exceed the PEL. In its previous economic analysis, OSHA had estimated that each of the establishments in these categories required beryllium work areas in addition to “regulated areas,” which were costed separately. The removal of these beryllium work area designations results in an annualized cost savings of $12,913 using a 3 percent discount rate and $15,682 using a 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    b. Protective work clothing and equipment. OSHA is recognizing no cost savings in this DFR for the elimination of PPE requirements associated with dermal contact in coal-fired utilities. In its 2017 FEA, OSHA listed the PPE compliance rate for utility workers at coal-fired utilities at 75 percent and therefore estimated PPE costs for the residual 25 percent of utility workers in the industry (where airborne exposures exceed the PEL or STEL or where there is dermal contact with beryllium). But upon further review, OSHA has determined that it should not have included those costs because affected employers in coal-fired utilities were already required to wear PPE under 29 CFR 1910.1018(j) to prevent skin and eye irritation from exposure to trace inorganic arsenic found in coal ash. As OSHA noted in its technological feasibility analysis, inorganic arsenic is often found in coal fly ash in “concentrations 10 to 1,000 times greater than beryllium,” fly ash is the primary source of beryllium exposure for employees in coal-fired utilities, and employers in this application group indicated that they were already following a majority of the provisions of the rule to comply with OSHA requirements for other hazardous substances, such as arsenic (p. IV-652). Thus, in all of the areas within a facility in which employees are likely to be exposed to beryllium, they are also likely to be exposed to concentrations of arsenic significantly high so as to trigger the arsenic PPE requirements. Accordingly, coal-fired utility compliance rates with the PPE requirement for affected workers should have been 100 percent in the prior FEA, and no costs for PPE for these workers should have been included in OSHA's cost estimates. Because OSHA should not have included new beryllium PPE costs for this group, OSHA is recognizing no cost savings in this DFR for the elimination of PPE requirements associated with dermal contact in coal-fired utilities.

    There are, however, some small PPE cost savings for primary aluminum production. The January 2017 rule requires employers to provide PPE in two situations: (1) Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; and (2) where there is a reasonable expectation of dermal contact with beryllium. 29 CFR 1910.1024(h)(1). It is the second of these two situations which OSHA believes will trigger cost savings. Because this DFR clarifies that “dermal contact with beryllium” does not include contact with beryllium in concentrations less than 0.1% beryllium by weight, gloves and other PPE requirements will be triggered by a reasonable expectation of dermal contact only with materials containing more than 0.1% beryllium by weight. In primary aluminum production, there is no dermal contact with materials containing beryllium above this threshold. As a result, the Agency has determined that in primary aluminum production, additional PPE is only necessary for workers exposed over the PEL. This change results in an annualized cost savings for employers in primary aluminum production of $35,023 using a 3 or 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    c. Hygiene areas and practices. The DFR's adoption of a definition for “contaminated with beryllium” also reduces the costs of complying with the Hygiene Areas and Practices provision in primary aluminum production (the costs for coal-fired utilities would not be affected). The 2017 Final Beryllium Rule requires employers to provide showers where both of two conditions are met:

    (A) Airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; and

    (B) Beryllium can reasonably be expected to contaminate employees' hair or body parts other than hands, face, and neck.

    29 CFR 1910.1024(i)(3)(i). By revising (B) to incorporate the newly defined term “contaminated with beryllium,” the condition in paragraph (B) will not be met in primary aluminum production because no employees in this application group can reasonably be expected to become “contaminated with beryllium.” Thus, the beryllium standard does not require employers in this application group to provide showers. Similarly, employers need not provide the estimated lower-cost alternative of head coverings, discussed in the 2017 FEA.7 Removing the cost of head coverings for workers in this application group results in an annualized cost savings for employers in primary aluminum production of $415 using a 3 or 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    7 In the previous FEA, OSHA had included costs for head coverings in lieu of showers, reasoning that employees could avoid the need for showers because the head coverings and other PPE would prevent their hair or body parts from becoming contaminated with beryllium.

    d. Housekeeping. Similar to the above discussion about PPE in coal-fired utilities, OSHA is recognizing no cost savings in this DFR for coal-fired utilities as a result of the modification of the housekeeping requirements. In the FEA in support of the 2017 Beryllium Final Rule, the Agency listed the housekeeping compliance rate for affected workers at coal-fired utilities at 75 percent and therefore estimated housekeeping costs for the residual 25 percent of utility workers in a beryllium work area. But upon further review, OSHA has determined that affected employers in coal-fired utilities were already required to perform comparable housekeeping duties under 29 CFR 1910.1018(k) to prevent accumulations of inorganic arsenic found in coal ash. Accordingly, coal-fired utility compliance rates with the housekeeping requirements for affected workers should have been 100 percent in the prior FEA, and no costs for housekeeping for these workers should have been included in OSHA's cost estimates. Consequently, OSHA is recognizing no cost savings in this DFR for coal-fired utilities as a result of the modification of the housekeeping requirements.

    The rule clarification also means that employers in primary aluminum production facilities will typically only be required to comply with the beryllium housekeeping provisions in “regulated areas,” which for cost purposes OSHA identified as employees exposed over the PEL in its exposure profile. There are several exceptions, none of which have a quantifiable impact on costs: Employers in this industry would still need to follow the housekeeping requirements when cleaning up spills and emergency releases of beryllium (paragraph (j)(1)(ii)), handling and maintaining cleaning equipment (paragraph (j)(2)(v)), and when necessary to reduce some workers exposures below the PEL (serving as an engineering control to prevent over-exposure to beryllium within regulated areas or the need for regulated areas). OSHA did not identify separate costs in its prior FEA for this use of housekeeping as a form of engineering control and does not do so here. Thus, for cost calculation purposes in this new FEA, OSHA removed housekeeping costs for all employees exposed below the PEL in its exposure profile. This change results in an annualized cost savings for employers in primary aluminum production of $323,664 using a 3 percent discount rate and $330,324 using a 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3. OSHA believes that these estimated cost savings might be slightly overstated to the extent that some housekeeping outside of the regulated areas will still be needed to perform an engineering-control function in some facilities, but the Agency is unable to quantify them now because of the variability among facilities and controls that employers may implement to comply with the standard.

    e. Additional familiarization. In the FEA in support of OSHA's 2017 Beryllium Final Rule, the Agency determined that employers would need to spend time familiarizing themselves with the rule and allocated 4, 8, and 40 hours, depending on establishment size (fewer than 20 employees, between 20 and 499 employees, and 500 or more employees, respectively). OSHA has similarly determined that establishments will need to spend time familiarizing themselves with this DFR. As the affected provisions in this DFR are only a fraction of all the provisions in the 2017 final rule and would not require any new actions on the part of employers, the Agency has estimated familiarization time of 2, 4, and 20 hours per employer, depending on establishment size, for a supervisor to review the changes to the beryllium rule reflected in this DFR. This results in an annualized cost of $9,404 using a 3 percent discount rate and $11,421 using a 7 percent discount rate. Annualized costs by provision and discount rate—3 and 7 percent—can be seen below in Tables 2 and 3, respectively.

    f. Unchanged provisions. As discussed earlier, this DFR primarily serves to clarify OSHA's intent with respect to certain terms and requirements in OSHA's 2017 beryllium general industry standard. These changes largely deal with clarifying the application of various requirements to trace beryllium. The triggers for most provisions in the standard—the PEL, respiratory protection, exposure assessment, regulated areas, medical surveillance, medical removal protection, written exposure control plan, and training provisions 8 —are determined by factors other than beryllium concentration and are unchanged by this DFR. Similarly, the revised definition of “emergency” in this DFR would not affect the costs estimated for the other provisions in the standard.

    8 While the changes in the standard do not mandate any additional employee training, OSHA notes that it had previously accounted for costs of annual re-training required by the standard (Document ID OSHA-H005C-2006-0870-2042, p. V-221).

    4. Economic and Technological Feasibility

    In the FEA for the 2017 beryllium standard, OSHA concluded that the rule was economically and technologically feasible. This DFR does not impose any new requirements and has the net impact of removing a small amount of cost, so OSHA has determined that this final rule is also economically and technologically feasible.

    5. Effects on Benefits

    This DFR clarifies aspects of the 2017 general industry beryllium standard to address unintended consequences regarding the applicability of provisions designed to protect workers from dermal contact with beryllium-containing materials and trace amounts of beryllium. This DFR makes clear that OSHA did not, and does not, intend to apply the provisions aimed at protecting workers from the effects of dermal contact to industries that only work with beryllium in trace amounts where there is limited or no airborne exposure. In the prior FEA, OSHA did not identify any quantifiable benefits from avoiding beryllium sensitization from dermal contact (see discussion at p. VII-16 through VII-18). Thus, the revisions in this DFR, which are focused on dermal contact, do not have any impact on OSHA's previous benefit estimates.

    6. Regulatory Flexibility Act Certification

    This DFR will result in cost savings for affected small entities, and those savings fall below levels that could be said to have a significant positive economic impact on a substantial number of small entities.9 Therefore, OSHA certifies that this direct final rule would not have a significant impact on a substantial number of small entities.

    9 OSHA investigated whether the projected cost savings would exceed 1 percent of revenues or 5 percent of profits for small entities and very small entities for every industry. To determine if this was the case, OSHA returned to its original regulatory flexibility analysis (in the 2017 FEA) for small entities and very small entities. OSHA found that the cost savings of this DFR are such a small percentage of revenues and profits for every affected industry that OSHA's criteria would not be exceeded for any industry.

    Table 1—Total Undiscounted Net Cost Savings of the Final Beryllium Standard by Year [2017 Dollars] Application group Year 1 2 3 4 5 6 7 8 9 10 Aluminum Production $613,367 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 Coal Fired Utilities 9,461 0 0 0 0 0 0 0 0 0 Total 622,828 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053 Table 2—Annualized Net Cost Savings of Program Requirements for Industries Affected by the Final Beryllium Standard by Sector and Six-Digit NAICS Industry [In 2017 dollars using a 3 percent discount rate] Application group/NAICS Industry Rule familiarization Exposure assessment Regulated areas Beryllium work areas Medical surveillance Medical
  • removal
  • provision
  • Written
  • exposure
  • control plan
  • Protective work clothing & equipment Hygiene areas and practices Housekeeping Training Total
  • program
  • costs
  • Aluminum Production 331313 Alumina Refining and Primary Aluminum Production −$240 $0 $0 $2,639 $0 $0 $0 $35,023 $415 $323,664 $0 $361,500 Coal Fired Utilities 221112 Fossil Fuel Electric Power Generation −6,209 0 0 8,087 0 0 0 0 0 0 0 1,878 311221 Wet Corn Milling −282 0 0 260 0 0 0 0 0 0 0 −22 311313 Beet Sugar Manufacturing −353 0 0 303 0 0 0 0 0 0 0 −49 311942 Spice and Extract Manufacturing −41 0 0 43 0 0 0 0 0 0 0 2 312120 Breweries −54 0 0 43 0 0 0 0 0 0 0 −11 321219 Reconstituted Wood Product Manufacturing −20 0 0 22 0 0 0 0 0 0 0 2 322110 Pulp Mills −32 0 0 22 0 0 0 0 0 0 0 −10 322121 Paper (except Newsprint) Mills −437 0 0 238 0 0 0 0 0 0 0 −199 322122 Newsprint Mills −705 0 0 519 0 0 0 0 0 0 0 −186 322130 Paperboard Mills −447 0 0 346 0 0 0 0 0 0 0 −101 325211 Plastics Material and Resin Manufacturing −85 0 0 87 0 0 0 0 0 0 0 2 325611 Soap and Other Detergent Manufacturing −23 0 0 22 0 0 0 0 0 0 0 −1 327310 Cement Manufacturing −39 0 0 43 0 0 0 0 0 0 0 4 333111b Farm Machinery and Equipment Manufacturing −24 0 0 22 0 0 0 0 0 0 0 −2 336510b Railroad Rolling Stock Manufacturing −26 0 0 22 0 0 0 0 0 0 0 −4 611310 Colleges, Universities, and Professional Schools −387 0 0 195 0 0 0 0 0 0 0 −193 Total: General Industry Subtotal −9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610 Construction Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Maritime Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Total, All Industries −9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
    Table 3—Annualized Net Cost Savings of Program Requirements for Industries Affected by the Final Beryllium Standard by Sector and Six-Digit NAICS Industry [In 2017 dollars using a 7 percent discount rate] Application Group/NAICS Industry Rule familiarization Exposure assessment Regulated areas Beryllium work areas Medical surveillance Medical
  • removal
  • provision
  • Written
  • exposure
  • control plan
  • Protective work clothing & equipment Hygiene areas and practices Housekeeping Training Total program costs
    Aluminum Production 331313 Alumina Refining and Primary Aluminum Production −$291 $0 $0 $3,205 $0 $0 $0 $35,023 $415 $330,324 $0 $368,675 Coal Fired Utilities 221112 Fossil Fuel Electric Power Generation −7,541 0 0 9,822 0 0 0 0 0 0 0 2,281 311221 Wet Corn Milling −342 0 0 315 0 0 0 0 0 0 0 −27 311313 Beet Sugar Manufacturing −428 0 0 368 0 0 0 0 0 0 0 −60 311942 Spice and Extract Manufacturing −50 0 0 53 0 0 0 0 0 0 0 3 312120 Breweries −66 0 0 53 0 0 0 0 0 0 0 −13 321219 Reconstituted Wood Product Manufacturing −24 0 0 26 0 0 0 0 0 0 0 3 322110 Pulp Mills −39 0 0 26 0 0 0 0 0 0 0 −12 322121 Paper (except Newsprint) Mills −531 0 0 289 0 0 0 0 0 0 0 −242 322122 Newsprint Mills −856 0 0 631 0 0 0 0 0 0 0 −225 322130 Paperboard Mills −543 0 0 421 0 0 0 0 0 0 0 −123 325211 Plastics Material and Resin Manufacturing −103 0 0 105 0 0 0 0 0 0 0 2 325611 Soap and Other Detergent Manufacturing −28 0 0 26 0 0 0 0 0 0 0 −2 327310 Cement Manufacturing −48 0 0 53 0 0 0 0 0 0 0 5 333111b Farm Machinery and Equipment Manufacturing −29 0 0 26 0 0 0 0 0 0 0 −3 336510b Railroad Rolling Stock Manufacturing −31 0 0 26 0 0 0 0 0 0 0 −5 611310 Colleges, Universities, and Professional Schools −471 0 0 237 0 0 0 0 0 0 0 −234 Total: General Industry Subtotal −11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022 Construction Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Maritime Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Total, All Industries −11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
    VII. OMB Review Under the Paperwork Reduction Act of 1995

    This rule contains no information collection requirements subject to OMB approval under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations at 5 CFR part 1320. The PRA defines a collection of information as the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format. See 44 U.S.C. 3502(3)(A). While not affected by this rulemaking, the Department has cleared information collections related to occupational exposure to beryllium standards—general industry, 29 CFR 1910.1024; construction, 29 CFR 1926.1124; and shipyards, 29 CFR 1915.1024—under control number 1218-0267. The existing approved information collections are unchanged by this rulemaking. The Department welcomes comments on this determination.

    VIII. Federalism

    OSHA reviewed this DFR in accordance with the Executive Order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional and statutory authority exists and the problem is national in scope. E.O. 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption is to be limited to the extent possible.

    Under Section 18 of the OSH Act, 29 U.S.C. 651 et seq., Congress expressly provides that States may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards; States that obtain Federal approval for such a plan are referred to as “State Plan States” (29 U.S.C. 667). Occupational safety and health standards developed by State Plan States must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State Plan States are free to develop and enforce under State law their own requirements for safety and health standards.

    This DFR complies with E.O. 13132. In States without OSHA approved State Plans, Congress expressly provides for OSHA standards to preempt State occupational safety and health standards in areas addressed by the Federal standards. In these States, this DFR would limit State policy options in the same manner as every standard promulgated by OSHA. In States with OSHA approved State Plans, this rulemaking does not significantly limit State policy options.

    IX. State Plan States

    When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the 28 States and U.S. Territories with their own OSHA approved occupational safety and health plans (“State Plan States”) must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing State standard covering this area is “at least as effective” as the new Federal standard or amendment. 29 CFR 1953.5(a). The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within six months of the promulgation date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plan States are not required to amend their standards, although the Agency may encourage them to do so. The 28 States and U.S. Territories with OSHA approved occupational safety and health plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming; Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands have OSHA approved State Plans that apply to State and local government employees only.

    This DFR clarifies requirements and addresses the unintended consequences associated with provisions intended to address the effects of dermal contact with beryllium as applied to trace beryllium. It imposes no new requirements. Therefore, no new State standards would be required beyond those already required by the promulgation of the January 2017 beryllium standard for general industry. State-Plan States may nonetheless choose to conform to these revisions.

    X. Unfunded Mandates Reform Act

    OSHA reviewed this DFR according to the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501 et seq.) and Executive Order 12875 (58 FR 58093). As discussed above in Section VI (“Economic Analysis and Regulatory Flexibility Certification”) of this preamble, the Agency determined that this DFR does not impose significant additional costs on any private- or public-sector entity. Accordingly, this DFR does not require significant additional expenditures by either public or private employers.

    As noted above under Section IX (“State-Plan States”), the Agency's standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this DFR does not meet the definition of a “Federal intergovernmental mandate” (see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency certifies that this DFR does not mandate that State, local, or Tribal governments adopt new, unfunded regulatory obligations. Further, OSHA concludes that the rule would not impose a Federal mandate on the private sector in excess of $100 million (adjusted annually for inflation) in expenditures in any one year.

    List of Subjects in 29 CFR Part 1910

    Beryllium, General industry, Health, Occupational safety and health.

    Signed at Washington, DC, on April 27, 2018. Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health. Amendments to Standards

    For the reasons stated in the preamble, OSHA amends 29 CFR part 1910 as follows:

    PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS Subpart Z—Toxic and Hazardous Substances 1. The authority section for subpart Z of part 1910 continues to read as follows: Authority:

    29 U.S.C. 653, 655, 657) Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), 29 CFR part 1911; and 5 U.S.C. 553, as applicable.

    Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat. 1901.

    Section 1910.1201 also issued under 49 U.S.C. 5101 et seq.

    2. Amend § 1910.1024 as follows: a. Revise the definition of “Beryllium work area” in paragraph (b); b. Add definitions for “Contaminated with beryllium and beryllium-contaminated” and “Dermal contact with beryllium” in alphabetical order in paragraph (b); c. Revise the definition of “Emergency” in paragraph (b); d. Revise paragraph (f)(2); e. Revise paragraph (h)(3)(ii); f. Revise paragraphs (i)(3)(i)(B), (i)(3)(ii)(B), (i)(4)(i) and (ii); and g. Revise paragraphs (j)(1)(i), (j)(2)(i) and (ii), and (j)(3).

    The revisions and additions read as follows:

    § 1910.1024 Beryllium.

    (b) * * *

    Beryllium work area means any work area:

    (i) Containing a process or operation that can release beryllium and that involves material that contains at least 0.1 percent beryllium by weight; and

    (ii) Where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium.

    Contaminated with beryllium and beryllium-contaminated mean contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight.

    Dermal contact with beryllium means skin exposure to:

    (i) Soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight;

    (ii) Solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight; or

    (iii) Dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight.

    Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment, which may or does result in an uncontrolled and unintended release of airborne beryllium that presents a significant hazard.

    (f) * * *

    (2) Engineering and work practice controls. (i) The employer must use engineering and work practice controls to reduce and maintain employee airborne exposure to beryllium to or below the PEL and STEL, unless the employer can demonstrate that such controls are not feasible. Wherever the employer demonstrates that it is not feasible to reduce airborne exposure to or below the PELs with engineering and work practice controls, the employer must implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls using respiratory protection in accordance with paragraph (g) of this standard.

    (ii) For each operation in a beryllium work area that releases airborne beryllium, the employer must ensure that at least one of the following is in place to reduce airborne exposure:

    (A) Material and/or process substitution;

    (B) Isolation, such as ventilated partial or full enclosures;

    (C) Local exhaust ventilation, such as at the points of operation, material handling, and transfer; or

    (D) Process control, such as wet methods and automation.

    (iii) An employer is exempt from using the controls listed in paragraph (f)(2)(ii) of this standard to the extent that:

    (A) The employer can establish that such controls are not feasible; or

    (B) The employer can demonstrate that airborne exposure is below the action level, using no fewer than two representative personal breathing zone samples taken at least 7 days apart, for each affected operation.

    (h) * * *

    (3) * * *

    (ii) The employer must ensure that beryllium is not removed from beryllium-contaminated personal protective clothing and equipment by blowing, shaking, or any other means that disperses beryllium into the air.

    (i) * * *

    (3) * * *

    (i) * * *

    (B) Employee's hair or body parts other than hands, face, and neck can reasonably be expected to become contaminated with beryllium.

    (ii) * * *

    (B) The employee's hair or body parts other than hands, face, and neck could reasonably have become contaminated with beryllium.

    (4) * * *

    (i) Beryllium-contaminated surfaces in eating and drinking areas are as free as practicable of beryllium;

    (ii) No employees enter any eating or drinking area with beryllium-contaminated personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not disperse beryllium into the air or onto an employee's body; and

    (j) * * *

    (1) * * *

    (i) The employer must maintain all surfaces in beryllium work areas and regulated areas as free as practicable of beryllium and in accordance with the written exposure control plan required under paragraph (f)(1) and the cleaning methods required under paragraph (j)(2) of this standard; and

    (2) * * *

    (i) The employer must ensure that surfaces in beryllium work areas and regulated areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure.

    (ii) The employer must not allow dry sweeping or brushing for cleaning surfaces in beryllium work areas or regulated areas unless HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure are not safe or effective.

    (3) Disposal and recycling. For materials that contain beryllium in concentrations of 0.1 percent by weight or more or are contaminated with beryllium, the employer must ensure that:

    (i) Materials designated for disposal are disposed of in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of this standard; and

    (ii) Materials designated for recycling are cleaned to be as free as practicable of surface beryllium contamination and labeled in accordance with paragraph (m)(3) of this standard, or place in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of this standard.

    [FR Doc. 2018-09306 Filed 5-4-18; 8:45 am] BILLING CODE 4510-26-P
    NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Information Security Oversight Office 32 CFR Part 2004 [FDMS No. NARA-16-0006; Agency No. NARA-2018-032] RIN 3095-AB79 National Industrial Security Program AGENCY:

    National Archives and Records Administration (NARA).

    ACTION:

    Final rule.

    SUMMARY:

    The Information Security Oversight Office (ISOO) of the National Archives and Records Administration (NARA), is revising the National Industrial Security Program (NISP) Directive. The NISP safeguards classified information the Federal Government or foreign governments release to contractors, licensees, grantees, and certificate holders. This revision adds provisions incorporating executive branch insider threat policy and minimum standards, identifies the Office of the Director of National Intelligence (ODNI) and the Department of Homeland Security (DHS) as new cognizant security agencies (CSAs), and adds responsibilities for all CSAs and non-CSA departments and agencies (to reflect oversight functions that are already detailed for private sector entities in the National Industrial Security Program Operating Manual (NISPOM)). This revision also makes other administrative changes to be consistent with recent revisions to the NISPOM and with updated regulatory language and style.

    DATES:

    This rule is effective on May 7, 2018.

    ADDRESSES:

    National Archives and Records Administration; ATTN: External Policy Program, Suite 4100, 8601 Adelphi Road; College Park, MD 20740.

    FOR FURTHER INFORMATION CONTACT:

    For information about this regulation and the regulatory process, contact Kimberly Keravuori, External Policy Program Manager, by email at [email protected], or by telephone at 301.837.3151. For information about the NISP and the requirements in this regulation, contact Mark A. Bradley, Director, ISOO, by telephone at 202-357-5205.

    SUPPLEMENTARY INFORMATION:

    We published proposed revisions to this rule in the Federal Register on January 11, 2017 (82 FR 3219) and received seven sets of public comments in response, from companies, industry representative organizations, and law firms. The vast majority of the comments were on 32 CFR 2004.32 and 2004.34, relating to national interest determinations (NIDs) made when an entity is under foreign ownership, control, or influence (FOCI) and the proposed mitigation method is a special security agreement. Overall, commenters strongly recommended that NIDs be eliminated, but, if not possible to do so, the commenters suggested ways in which to streamline the process and the regulatory provisions, including granting the Defense Security Service (DSS) authority to make NIDs concurrently with making eligibility determinations, establishing a presumption of approval if an entity otherwise has a favorable record, and making NIDs prior to contract awards.

    We are not at this time able to eliminate NIDs because certain categories of classified information involve assessment of factors specific to that information. The regulation is also not drafted on the basis of what DSS may or may not do, as DSS is not one of the cognizant security agencies (CSAs) specifically named in Executive Order (E.O.) 12829. DSS has authority granted to it by the Department of Defense, one of the CSAs, and each CSA has equivalent authority under the NISP to make entity eligibility determinations and NIDs. We decline to create a presumption of approval because of the potential risk to national security, particularly with regard to certain categories of proscribed information. In addition, no agency has the capability to evaluate companies for a NID prior to any acquisition activity so as to include the NID in contract award documents.

    Nonetheless, we have taken the comments and suggestions into consideration and made changes to further streamline the NID process and these regulatory sections in response to the public comments. We have established that the CSA (or DSS for the CSA, in the case of DoD determinations) makes the NID and does so concurrently with making the entity eligibility determination. In this manner, for several categories of classified information, the NID will take no longer than the entity eligibility determination. In cases in which the proscribed information does not require concurrence from a controlling agency, the entity's access may begin as soon as a positive determination is made. Now, only in cases in which the proscribed information requires concurrence from a controlling agency (RD, COMSEC, SCI), must the entity wait in order to have access to that information. We have revised the process to also allow an entity to begin accessing a category of proscribed information once the CSA informs the entity that the controlling agency concurs, even if other categories of proscribed information are pending concurrence. This allows entities to begin work and have access to at least part of the information at a faster rate.

    In addition, we revised the regulation to allow an entity's access to SCI, RD, or COMSEC to remain in effect so long as the entity remains eligible for access to classified information and the contract or agreement imposing the requirement for access to those categories of proscribed information remains in effect, except under certain circumstances, and to remain in effect across contract renewals, new task orders, and SSA renewals (except under certain circumstances). Both of these revisions reduce the number of NIDs an entity must undergo and reduce the potential disruptions and burdens of previous NID frequency. We believe these regulations significantly streamline the NID process and reduce burdens on entities by: (1) Allowing the CSA to render NIDs for certain categories of information concurrently with eligibility determinations, (2) allowing access to information as NID concurrences are received rather than waiting for all concurrences, and (3) establishing a 30-day timeline for concurrence (this was included in the proposed rule).

    We have coordinated and vetted the comments and resulting revisions through the CSAs listed in E. O. 12829, National Industrial Security Program (January 6, 1993 (58 FR 3479)), as amended by E.O. 13691 (February 13, 2015 (80 FR 9347)): Department of Defense, Department of Energy, Nuclear Regulatory Commission, Office of the Director of National Intelligence, and Department of Homeland Security. We have also coordinated this rule with the other executive branch agencies that are members of the National Industrial Security Program Policy Advisory Committee (NISPPAC) or that release classified information to contractors, licensees, grantees, or certificate holders, and with the industry members of the NISPPAC. These revisions do not change requirements for industry (which are contained in the NISPOM), but instead clarify agency responsibilities.

    Background

    The NISP is the Federal Government's single, integrated industrial security program. E.O. 12829 (amended in 1993) established the NISP to safeguard classified information in industry and preserve the nation's economic and technological interests. The President issued E.O. 13691, Promoting Private Sector Cybersecurity Information Sharing (February 13, 2015 (80 FR 9347)), and E.O. 13708, Continuance or Reestablishment of Certain Federal Advisory Committees (September 30, 2015 (80 FR 60271)), which further amended E.O. 12829.

    E.O. 12829, sec. 102(b), delegated oversight of the NISP to the Director of NARA's Information Security Oversight Office (ISOO). As part of ISOO's responsibilities under E.O. 12829, it is authorized to issue such directives as necessary to implement the E.O., which are binding on agencies. In 2006, ISOO issued, and periodically updates, this regulation, which functions as one of those directives.

    This regulation establishes uniform standards throughout the Program, and helps agencies implement requirements in E.O. 12829, as amended (collectively referred to as “E.O. 12829”).

    This revision also establishes agency responsibilities for implementing the insider threat provisions of E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information (October 7, 2011 (76 FR 63811)) within the NISP. However, the regulation does not stand alone; users should refer concurrently to the underlying executive orders for guidance.

    Nothing in this regulation supersedes the authority of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011, et seq.); the authority of the Director of National Intelligence (or any intelligence community element) under the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458), the National Security Act of 1947 (50 U.S.C. 401, et seq.), as amended, and E.O. 12333 (December 4, 1981), as amended by E.O. 13355, Strengthened Management of the Intelligence Community (August 27, 2004) and E.O. 13470, Further Amendments to Executive Order 12333 (July 30, 2008); or the authority of the Secretary of Homeland Security, as the Executive Agent for the Classified National Security Information Program established under E.O. 13549, Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities (August 18, 2010), or by E. O. 13284, Amendment of Executive Orders, and Other Actions, in Connection with the Establishment of the Department of Homeland Security, (January 23, 2003).

    Regulatory Analysis

    The Office of Management and Budget (OMB) has reviewed this proposed regulation.

    Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (September 30, 1993), and Executive Order 13563, Improving Regulation and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule is not “significant” under Executive Order 12866, sec. 3(f), and is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. The Office of Management and Budget (OMB) has reviewed this regulation.

    Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory flexibility analysis and publish it when the agency publishes the proposed rule. This requirement does not apply if the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities (5 U.S.C. 603). As required by the Regulatory Flexibility Act, we certify that this rulemaking will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies. This regulation does not establish requirements for entities; those requirements are established in the NISPOM. This rule sets out coinciding requirements for agencies. However, agencies implementing this regulation will do so through contracts with businesses (as well as other agreements with entities) and thus it indirectly affects those entities. Agencies have been applying the requirements and procedures contained in the NISPOM (and, to a lesser extent, contained in this regulation) to entities for 20 years, with the exception of insider threat provisions added to the NISPOM in 2016, and the additions to this regulation do not substantially alter those requirements. Most of the provisions being added to this regulation have applied to entities through the NISPOM; we are simply incorporating the agency responsibilities for those requirements into the regulation. Other revisions to this regulation are primarily administrative, except the new insider threat requirements. The insider threat requirements make minor additions to training, oversight, information system security, and similar functions already being conducted by entities, and thus will not have a significant economic impact on a substantial number of small business entities.

    Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule contains information collection activities that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. We refer to the following OMB-approved DoD information collection in § 2004.34(b) and (c)(1) of this regulation: OMB control No. 0704-0194, SF 328/CF 328, Certificate Pertaining to Foreign Interests, approved through September 30, 2019. DoD published the information collection notice in the Federal Register in May 2015 (80 FR 27938, May 15, 2015) for public comment, and the notice of OMB review in the Federal Register in July 2016 (81 FR 47790, July 22, 2016), providing a second opportunity for public comment.

    Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 1999)

    Review under Executive Order 13132 requires that agencies review regulations for federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, prepare a Federal assessment to assist senior policy makers. This rule will not have any direct effects on State and local governments within the meaning of the Executive Order. Therefore, this rule does not include a federalism assessment.

    Review Under Executive Order 13771

    This final rule is not subject to the requirements of Executive Order 13771 because this final rule is related to agency organization, management, or personnel.

    List of Subjects in 32 CFR Part 2004

    Classified information, National Industrial Security Program.

    For the reasons stated in the preamble, the National Archives and Records Administration amends 32 CFR chapter XX by revising part 2004 to read as follows: PART 2004—NATIONAL INDUSTRIAL SECURITY PROGRAM (NISP) Subpart A—Implementation and Oversight Sec. 2004.1 Purpose and scope. 2004.4 Definitions that apply to this part. 2004.10 Responsibilities of the Director, Information Security Oversight Office (ISOO). 2004.11 CSA and agency implementing regulations, internal rules, or guidelines. 2004.12 ISOO reviews of agency NISP implementation. Subpart B—Administration 2004.20 National Industrial Security Program Executive Agent (EA) and Operating Manual (NISPOM). 2004.22 Agency responsibilities. 2004.24 Insider threat program. 2004.26 Reviews of entity NISP implementation. 2004.28 Cost reports. Subpart C—Operations 2004.30 Security classification requirements and guidance. 2004.32 Determining entity eligibility for access to classified information. 2004.34 Foreign ownership, control, or influence (FOCI). 2004.36 Determining entity employee eligibility for access to classified information. 2004.38 Safeguarding and marking. 2004.40 Information system security. 2004.42 [Reserved] Appendix A to Part 2004—Acronym Table Authority:

    Section 102(b)(1) of E.O. 12829 (January 6, 1993), as amended by E.O. 12885 (December 14, 1993), E.O. 13691 (February 12, 2015), and section 4 of E.O. 13708 (September 30, 2015).

    Subpart A—Implementation and Oversight
    § 2004.1 Purpose and scope.

    (a) This part sets out the National Industrial Security Program (“NISP” or “the Program”) governing the protection of agency classified information released to Federal contractors, licensees, grantees, and certificate holders. It establishes uniform standards throughout the Program, and helps agencies implement requirements in E.O. 12829, National Industrial Security Program, as amended by E.O. 12558 and E.O.13691 (collectively referred to as “E.O. 12829”), E.O. 13691, Promoting Private Sector Cybersecurity Information Sharing, and E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information. It applies to any executive branch agency that releases classified information to current, prospective, or former Federal contractors, licensees, grantees, or certificate holders. However, this part does not stand alone; users should refer concurrently to the underlying executive orders for guidance. ISOO maintains policy oversight over the NISP as established by E.O.12829.

    (b) This part also does not apply to release of classified information pursuant to criminal proceedings. The Classified Information Procedures Act (CIPA) (18 U.S.C. Appendix 3) governs release of classified information in criminal proceedings.

    (c) Nothing in this part supersedes the authority of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011, et seq.) (collectively referred to as “the Atomic Energy Act”); the authority of the Director of National Intelligence (or any intelligence community element) under the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458), the National Security Act of 1947 as amended (50 U.S.C. 401, et seq.), and E.O. 12333 (December 4, 1981), as amended by E.O. 13355, Strengthened Management of the Intelligence Community (August 27, 2004) and E.O. 13470, Further Amendments to Executive Order 12333 (July 30, 2008) (collectively referred to as “E.O. 12333”); or the authority of the Secretary of Homeland Security, as the Executive Agent for the Classified National Security Information Program established under E.O. 13549, Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities (August 18, 2010), or as established by E.O. 13284, Amendment of Executive Orders, and Other Actions, in Connection with the Establishment of the Department of Homeland Security (January 23, 2003). In exercising these authorities, CSAs make every effort to facilitate reciprocity, avoid duplication of regulatory requirements, and facilitate uniform standards.

    § 2004.4 Definitions that apply to this part.

    (a) Access is the ability or opportunity to gain knowledge of classified information.

    (b) Agency(ies) are any “Executive agency” as defined in 5 U.S.C. 105; any “Military department” as defined in 5 U.S.C. 102; and any other entity within the executive branch that releases classified information to private sector entities. This includes component agencies under another agency or under a cross-agency oversight office (such as ODNI with CIA), which are also agencies for purposes of this regulation.

    (c) Classified Critical Infrastructure Protection Program (CCIPP) is the DHS program that executes the classified infrastructure protection program designated by E.O. 13691, “Promoting Private Sector Cybersecurity Information Sharing.” The Government uses this program to share classified cybersecurity-related information with employees of private sector entities that own or operate critical infrastructure. Critical infrastructure refers to systems and assets, whether physical or virtual, so vital to the United States that incapacitating or destroying such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination thereof. These entities include banks and power plants, among others. The sectors of critical infrastructure are listed in Presidential Policy Directive 21, Critical Infrastructure Security and Resilience (February 12, 2013).

    (d) Classified Critical Infrastructure Protection Program (CCIPP) security point of contact (security POC) is an official whom a CCIPP entity designates to maintain eligibility information about the entity and its cleared employees, and to report that information to DHS. The CCIPP security POC must be eligible for access to classified information.

    (e) Classified information is information the Government designates as requiring protection against unauthorized disclosure in the interest of national security, pursuant to E.O. 13526, Classified National Security Information, or any predecessor order, and the Atomic Energy Act of 1954, as amended. Classified information includes national security information (NSI), restricted data (RD), and formerly restricted data (FRD), regardless of its physical form or characteristics (including tangible items other than documents).

    (f) Cognizance is the area over which a CSA has operational oversight. Normally, a statute or executive order establishes a CSA's cognizance over certain types of information, programs, or non-CSA agencies, although CSAs may also have cognizance through an agreement with another CSA or non-CSA agency or an entity. A CSA may have cognizance over a particular type(s) of classified information based on specific authorities (such as those listed in § 2004.1(c)), and a CSA may have cognizance over certain agencies or cross-agency programs (such as DoD's cognizance over non-CSA agencies as the EA for NISP, or ODNI's oversight (if applicable) of all intelligence community elements within the executive branch). Entities fall under a CSA's cognizance when they enter or compete to enter contracts or agreements to access classified information under the CSA's cognizance, including when they enter or compete to enter such contracts or agreements with a non-CSA agency or another entity under the CSA's cognizance.

    (g) Cognizant security agencies (CSAs) are the agencies E.O. 12829, sec. 202, designates as having NISP implementation and security responsibilities for their own agencies (including component agencies) and any entities and non-CSA agencies under their cognizance. The CSAs are: Department of Defense (DoD); Department of Energy (DOE); Nuclear Regulatory Commission (NRC); Office of the Director of National Intelligence (ODNI); and Department of Homeland Security (DHS).

    (h) Cognizant security office (CSO) is an organizational unit to which the head of a CSA delegates authority to administer industrial security services on behalf of the CSA.

    (i) Contracts or agreements are any type of arrangement between an agency and an entity or an agency and another agency. They include, but are not limited to, contracts, sub-contracts, licenses, certificates, memoranda of understanding, inter-agency service agreements, other types of documents or arrangements setting out responsibilities, requirements, or terms agreed upon by the parties, programs, projects, and other legitimate U.S. or foreign government requirements. FOCI mitigation or negation measures, such as Voting Trust Agreements, that have the word “agreement” in their title are not included in the term “agreements” within this part.

    (j) Controlling agency is an agency that owns or controls the following categories of proscribed information and thus has authority over access to or release of the information: NSA for communications security information (COMSEC); DOE for restricted data (RD); and ODNI for sensitive compartmented information (SCI).

    (k) Entity is a generic and comprehensive term which may include sole proprietorships, partnerships, corporations, limited liability companies, societies, associations, institutions, contractors, licensees, grantees, certificate holders, and other organizations usually established and operating to carry out a commercial, industrial, educational, or other legitimate business, enterprise, or undertaking, or parts of these organizations. It may reference an entire organization, a prime contractor, parent organization, a branch or division, another type of sub-element, a sub-contractor, subsidiary, or other subordinate or connected entity (referred to as “sub-entities” when necessary to distinguish such entities from prime or parent entities), a specific location or facility, or the headquarters/official business location of the organization, depending upon the organization's business structure, the access needs involved, and the responsible CSA's procedures. The term “entity” as used in this part refers to the particular entity to which an agency might release, or is releasing, classified information, whether that entity is a parent or subordinate organization.

    (l) Entity eligibility determination is an assessment by the CSA as to whether an entity is eligible for access to classified information of a certain level (and all lower levels). Eligibility determinations may be broad or limited to specific contracts, sponsoring agencies, or circumstances. A favorable determination results in eligibility to access classified information under the cognizance of the responsible CSA to the level approved. When the entity would be accessing categories of information such as RD or SCI for which the CSA for that information has set additional requirements, CSAs must also assess whether the entity is eligible for access to that category. Some CSAs refer to their favorable determinations as facility security clearances (FCL). A favorable entity eligibility determination does not convey authority to store classified information.

    (m) Foreign interest is any foreign government, element of a foreign government, or representative of a foreign government; any form of business enterprise or legal entity organized, chartered, or incorporated under the laws of any country other than the United States or its territories; and any person who is not a United States citizen or national.

    (n) Government contracting activity (GCA) is an agency component or subcomponent to which the agency head delegates broad authority regarding acquisition functions. A foreign government may also be a GCA.

    (o) Industrial security services are those activities performed by a CSA to verify that an entity is protecting classified information. They include, but are not limited to, conducting oversight reviews, making eligibility determinations, and providing agency and entity guidance and training.

    (p) Insider(s) are entity employees who are eligible to access classified information and may be authorized access to any U.S. Government or entity resource (such as personnel, facilities, information, equipment, networks, or systems).

    (q) Insider threat is the likelihood, risk, or potential that an insider will use his or her authorized access, wittingly or unwittingly, to do harm to the national security of the United States. Insider threats may include harm to entity or program information to the extent that the information impacts the entity's or agency's obligations to protect classified information.

    (r) Insider threat response action(s) are actions (such as investigations) an agency takes to ascertain whether an insider threat exists, and actions the agency takes to mitigate the threat. Agencies may conduct insider threat response actions through their counterintelligence (CI), security, law enforcement, or inspector general organizations, depending on the statutory authority and internal policies that govern the agency.

    (s) Insider threat program senior official (SO) is the official an agency head or entity designates with responsibility to manage, account for, and oversee the agency's or entity's insider threat program, pursuant to the National Insider Threat Policy and Minimum Standards. An agency may have more than one insider threat program SO.

    (t) Key managers and officials (KMO) are the senior management official (or authorized executive official under CCIPP), the entity's security officer (or security POC under CCIPP), the insider threat program senior official, and other entity employees whom the responsible CSA identifies as having authority, direct or indirect, to influence or decide matters affecting the entity's management or operations, its contracts requiring access to classified information, or national security interests. They may include individuals who hold majority ownership interest in the entity (in the form of stock or other ownership interests).

    (u) Proscribed information is information that is classified as top secret (TS) information; communications security (COMSEC) information (excluding controlled cryptographic items when un-keyed or utilized with unclassified keys); restricted data (RD); special access program information (SAP); or sensitive compartmented information (SCI).

    (v) Security officer is a U.S. citizen employee the entity designates to supervise and direct security measures implementing NISPOM (or equivalent; such as DOE Orders) requirements. Some CSAs refer to this position as a facility security officer (FSO). The security officer must complete security training specified by the responsible CSA, and must have and maintain an employee eligibility determination level that is at least the same level as the entity's eligibility determination level.

    (w) Senior agency official for NISP (SAO for NISP) is the official an agency head designates to direct and administer the agency's National Industrial Security Program.

    (x) Senior management official (SMO) is the person in charge of an entity. Under the CCIPP, this is the authorized executive official with authority to sign the security agreement with DHS.

    (y) Sub-entity is an entity's branch or division, another type of sub-element, a sub-contractor, subsidiary, or other subordinate or connected entity. Sub-entities fall under the definition of “entity,” but this part refers to them as sub-entities when necessary to distinguish such entities from prime contractor or parent entities. See definition of “entity” in paragraph (k) of this section for more context.

    § 2004.10 Responsibilities of the Director, Information Security Oversight Office (ISOO).

    The Director, ISOO:

    (a) Implements E.O. 12829, including ensuring that:

    (1) The NISP operates as a single, integrated program across the executive branch of the Federal Government (i.e., such that agencies that release classified information to entities adhere to NISP principles);

    (2) A responsible CSA oversees each entity's NISP implementation in accordance with § 2004.22;

    (3) All agencies that contract for classified work include the Security Requirements clause, 48 CFR 52.204-2, from the Federal Acquisition Regulation (FAR), or an equivalent clause, in contracts that require access to classified information;

    (4) Those agencies for which the Department of Defense (DoD) serves as the CSA or provides industrial security services have agreements with DoD defining the Secretary of Defense's responsibilities on behalf of their agency;

    (5) Each CSA issues directions to entities under their cognizance that are consistent with the NISPOM insider threat guidance;

    (6) CSAs share with each other, as lawful and appropriate, relevant information about entity employees that indicates an insider threat; and

    (7) CSAs conduct ongoing analysis and adjudication of adverse or relevant information about entity employees that indicates an insider threat.

    (b) Raises an issue to the National Security Council (NSC) for resolution if the EA's NISPOM coordination process cannot reach a consensus on NISPOM security standards (see § 2004.20(d)).

    § 2004.11 CSA and agency implementing regulations, internal rules, or guidelines.

    (a) Each CSA implements NISP practices in part through policies and guidelines that are consistent with this regulation, so that agencies for which it serves as the CSA are aware of appropriate security standards, engage in consistent practices with entities, and so that practices effectively protect classified information those entities receive (including foreign government information that the U.S. Government must protect in the interest of national security).

    (b) Each CSA must also routinely review and update its NISP policies and guidelines and promptly issue revisions when needed (including when a change in national policy necessitates a change in agency NISP policies and guidelines).

    (c) Non-CSA agencies may choose to augment CSA NISP policies or guidelines as long as the agency policies or guidelines are consistent with the CSA's policies or guidelines and this regulation.

    § 2004.12 ISOO review of agency NISP implementation.

    (a) ISOO fulfills its oversight role based, in part, on information received from NISP Policy Advisory Committee (NISPPAC) members, from on-site reviews that ISOO conducts under the authority of E.O. 12829, and from any submitted complaints and suggestions. ISOO reports findings to the responsible CSA or agency.

    (b) ISOO reviews agency policies and guidelines to ensure consistency with NISP policies and procedures. ISOO may conduct reviews during routine oversight visits, when a problem or potential problem comes to ISOO's attention, or after a change in national policy that impacts agency policies and guidelines. ISOO provides the responsible agency with findings from these reviews.

    Subpart B—Administration
    § 2004.20 National Industrial Security Program Executive Agent and Operating Manual.

    (a) The executive agent (EA) for NISP is the Secretary of Defense. The EA:

    (1) Provides industrial security services for agencies that are not CSAs but that release classified information to entities. The EA provides industrial security services only through an agreement with the agency. Non-CSA agencies must enter an agreement with the EA and comply with EA industrial security service processes before releasing classified information to an entity;

    (2) Provides services for other CSAs by agreement; and

    (3) Issues and maintains the National Industrial Security Program Operating Manual (NISPOM) in consultation with all affected agencies and with the concurrence of the other CSAs.

    (b) The NISPOM sets out the procedures and standards that entities must follow during all phases of the contracting process to safeguard any classified information an agency releases to an entity. The NISPOM requirements may apply to the entity directly (i.e., through FAR clauses or other contract clauses referring entities to the NISPOM) or through equivalent contract clauses or requirements documents that are consistent with NISPOM requirements.

    (c) The EA, in consultation with all affected agencies and with the concurrence of the other CSAs, develops the requirements, restrictions, and safeguards contained in the NISPOM. The EA uses security standards applicable to agencies as the basis for developing NISPOM entity standards to the extent practicable and reasonable.

    (d) The EA also facilitates the NISPOM coordination process, which addresses issues raised by entities, agencies, ISOO, or the NISPPAC, including requests to create or change NISPOM security standards.

    § 2004.22 Agency responsibilities.

    (a) Agency categories and general areas of responsibility. Federal agencies fall into three categories for the purpose of NISP responsibilities:

    (1) CSAs. CSAs are responsible for carrying out NISP implementation within their agency, for providing NISP industrial security services on behalf of non-CSA agencies by agreement when authorized, and for overseeing NISP compliance by entities that access classified information under the CSA's cognizance. When the CSA has oversight responsibilities for a particular non-CSA agency or for an entity, the CSA also functions as the responsible CSA;

    (2) Non-CSA agencies. Non-CSA agencies are responsible for entering agreements with a designated CSA for industrial security services, and are responsible for carrying out NISP implementation within their agency consistently with the agreement, the CSA's guidelines and procedures, and this regulation; or

    (3) Agencies that are components of another agency. Component agencies do not have itemized responsibilities under this regulation and do not independently need to enter agreements with a CSA, but they follow, and may have responsibilities under, implementing guidelines and procedures established by their CSA or non-CSA agency, or both.

    (b) Responsible CSA role. (1) The responsible CSA is the CSA (or its delegated CSO) that provides NISP industrial security services on behalf of an agency, determines an entity's eligibility for access, and monitors and inspects an entity's NISP implementation.

    (2) In general, the goal is to have one responsible CSA for each agency and for each entity, to minimize the burdens that can result from complying with differing CSA procedures and requirements.

    (i) With regard to agencies, NISP accomplishes this goal by a combination of designated CSAs and agreements between agencies and CSAs.

    (ii) With regard to entities, CSAs strive to reduce the number of responsible CSAs for a given entity as much as possible. To this end, when more than one CSA releases classified information to a given entity, those CSAs agree on which is the responsible CSA. However, due to certain unique agency authorities, there may be circumstances in which a given entity is under the oversight of more than one responsible CSA.

    (3) Responsible CSA for agencies:

    (i) In general, each CSA serves as the responsible CSA for classified information that it (or any of its component agencies) releases to entities, unless it enters an agreement otherwise with another CSA.

    (ii) DoD serves as the responsible CSA for DHS with the exception of the CCIPP, based on an agreement between the two CSAs.

    (iii) DoD serves as the responsible CSA on behalf of all non-CSA agencies, except CSA components, based on E.O. 12829 and its role as NISP EA.

    (iv) ODNI serves as the responsible CSA for CIA.

    (4) Responsible CSA for entities: When determining the responsible CSA for a given entity, the involved CSAs consider, at a minimum: retained authorities, the information's classification level, number of contracts requiring access to classified information, location, number of Government customers, volume of classified activity, safeguarding requirements, responsibility for entity employee eligibility determinations, and any special requirements.

    (5) Responsible CSAs may delegate oversight responsibility to a cognizant security office (CSO) through CSA policy or by written delegation. The CSA must inform entities under its cognizance if it delegates responsibilities. For purposes of this rule, the term CSA also refers to the CSO.

    (c) CSA responsibilities. (1) The CSA may perform GCA responsibilities as its own GCA.

    (2) As CSA, the CSA performs or delegates the following responsibilities:

    (i) Designates a CSA senior agency official (SAO) for NISP;

    (ii) Identifies the insider threat program senior official (SO) to the Director, ISOO;

    (iii) Shares insider threat information with other CSAs, as lawful and appropriate, including information that indicates an insider threat about entity employees eligible to access classified information;

    (iv) Acts upon and shares—with security management, GCAs, insider threat program employees, and Government program and CI officials—any relevant entity-reported information about security or CI concerns, as appropriate;

    (v) Submits reports to ISOO as required by this part; and

    (vi) Develops, coordinates, and provides concurrence on changes to the NISPOM when requested by the EA.

    (3) As a responsible CSA, the CSA also performs or delegates the following responsibilities:

    (i) Determines whether an entity is eligible for access to classified information (see § 2004.32);

    (ii) Allocates funds, ensures appropriate investigations are conducted, and determines entity employee eligibility for access to classified information (see § 2004.36);

    (iii) Reviews and approves entity safeguarding measures, including making safeguarding capability determinations (see § 2004.38);

    (iv) Conducts periodic security reviews of entity operations (see § 2004.26) to determine that entities: effectively protect classified information provided to them; and follow NISPOM (or equivalent) requirements;

    (v) Provides and regularly updates guidance, training, training materials, and briefings to entities on:

    (A) Entity implementation of NISPOM (or equivalent) requirements, including: responsibility for protecting classified information, requesting NISPOM interpretations, establishing training programs, and submitting required reports;

    (B) Initial security briefings and other briefings required for special categories of information;

    (C) Authorization measures for information systems processing classified information (except DHS) (see § 2004.40);

    (D) Security training for security officers (or CCIPP POCs) and other employees whose official duties include performing NISP-related functions;

    (E) Insider threat programs in accordance with the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs; and

    (F) Other guidance and training as appropriate;

    (vi) Establishes a mechanism for entities to submit requests for waivers to NISPOM (or equivalent) provisions;

    (vii) Reviews, continuously analyzes, and adjudicates, as appropriate, reports from entities regarding events that:

    (A) Impact the status of the entity's eligibility for access to classisfied information;

    (B) Impact an employee's eligibility for access;

    (C) May indicate an employee poses an insider threat;

    (D) Affect proper safeguarding of classified information; or

    (E) Indicate that classified information has been lost or compromised;

    (viii) Verifies that reports offered in confidence and so marked by an entity may be withheld from public disclosure under applicable exemptions of the Freedom of Information Act (5 U.S.C. 552);

    (ix) Requests any additional information needed from an entity about involved employees to determine continued eligibility for access to classified information when the entity reports loss, possible compromise, or unauthorized disclosure of classified information; and

    (x) Posts hotline information on its website for entity access, or otherwise disseminates contact numbers to the entities for which the CSA is responsible.

    (d) Non-CSA agency head responsibilities. The head of a non-CSA agency that is not a CSA component and that releases classified information to entities, performs the following responsibilities:

    (1) Designates an SAO for the NISP;

    (2) Identifies the insider threat program SO to ISOO to facilitate information sharing;

    (3) Enters into an agreement with the EA (except agencies that are components of another agency or a cross-agency oversight office) to act as the responsible CSA on the agency's behalf (see paragraph (a)(1)(ii) of this section);

    (4) Performs, or delegates in writing to a GCA, the following responsibilities:

    (i) Provides appropriate education and training to agency personnel who implement the NISP;

    (ii) Includes FAR security requirements clause 52.204-2, or equivalent (such as the DEAR clause 952.204-2), and a contract security classification specification (or equivalent guidance) into contracts and solicitations that require access to classified information (see § 2004.30); and

    (iii) Reports to the appropriate CSA adverse information and insider threat activity pertaining to entity employees having access to classified information.

    § 2004.24 Insider threat program.

    (a) Responsible CSAs oversee and analyze entity activity to ensure entities implement an insider threat program in accordance with the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (via requirements in the NISPOM or its equivalent) and guidance from the CSA. CSA oversight responsibilities include, but are not limited to:

    (1) Verifying that entities appoint insider threat program SOs;

    (2) Requiring entities to monitor, report, and review insider threat program activities and response actions in accordance with the provisions set forth in the NISPOM (or equivalent);

    (3) Providing entities with access to data relevant to insider threat program activities and applicable reporting requirements and procedures;

    (4) Providing entities with a designated means to report insider threat-related activity; and

    (5) Advising entities on appropriate insider threat training for entity employees eligible for access to classified information.

    (b) CSAs share with other CSAs any insider threat information reported to them by entities, as lawful and appropriate.

    § 2004.26 Reviews of entity NISP implementation.

    (a) The responsible CSA conducts recurring oversight reviews of entities' NISP security programs to verify that the entity is protecting classified information and is implementing the provisions of the NISPOM (or equivalent). The CSA determines the scope and frequency of reviews. The CSA generally notifies entities when a review will take place, but may also conduct unannounced reviews at its discretion.

    (b) CSAs make every effort to avoid unnecessarily intruding into entity employee personal effects during the reviews.

    (c) A CSA may, on entity premises, physically examine the interior spaces of containers not authorized to store classified information in the presence of the entity's representative.

    (d) As part of a security review, the CSA:

    (1) Verifies that the entity limits entity employees with access to classified information to the minimum number necessary to perform on contracts requiring access to classified information.

    (2) Validates that the entity has not provided its employees unauthorized access to classified information;

    (3) Reviews the entity's self-inspection program and evaluates and records the entity's remedial actions; and

    (4) Verifies that the GCA approved any public release of information pertaining to a contract requiring access to classified information.

    (e) As a result of findings during the security review, the CSA may, as appropriate, notify:

    (1) GCAs if there are unfavorable results from the review; and

    (2) A prime entity if the CSA discovers unsatisfactory security conditions pertaining to a sub-entity.

    (f) The CSA maintains a record of reviews it conducts and the results. Based on review results, the responsible CSA determines whether an entity's eligibility for access to classified information may continue. See § 2004.32(g).

    § 2004.28 Cost reports.

    (a) Agencies must annually report to the Director, ISOO, on their NISP implementation costs for the previous year.

    (b) CSAs must annually collect information on NISP implementation costs incurred by entities under their cognizance and submit a report to the Director, ISOO.

    Subpart C—Operations
    § 2004.30 Security classification requirements and guidance.

    (a) Contract or agreement and solicition requirements. (1) The GCA must incorporate FAR clause 52.204-2, Security Requirements (or equivalent set of security requirements), into contracts or agreements and solicitations requiring access to classified information.

    (2) The GCA must also include a contract security classification specification (or equivalent guidance) with each contract or agreement and solicitation that requires access to classified information. The contract security classification specification (or equivalent guidance) must identify the specific elements of classified information involved in each phase of the contract or agreement life-cycle, such as:

    (i) Level of classification;

    (ii) Where the entity will access or store the classified information, and any requirements or limitations on transmitting classified information outside the entity;

    (iii) Any special accesses;

    (iv) Any classification guides or other guidance the entity needs to perform during that phase of the contract or agreement;

    (v) Any authorization to disclose information about the contract or agreement requiring access to classified information; and

    (vi) GCA personnel responsible for interpreting and applying the contract security specifications (or equivalent guidance).

    (3) The GCA revises the contract security classification specification (or equivalent guidance) throughout the contract or agreement life-cycle as security requirements change.

    (b) Guidance. Classification guidance is the exclusive responsibility of the GCA. The GCA prepares classification guidance in accordance with 32 CFR 2001.15, and provides appropriate security classification and declassification guidance to entities.

    (c) Requests for clarification and classification challenges. (1) The GCA responds to entity requests for clarification and classification challenges.

    (2) The responsible CSA assists entities to obtain appropriate classification guidance from the GCA, and to obtain a classification challenge response from the GCA.

    (d) Instructions upon contract or agreement completion or termination. (1) The GCA provides instructions to the entity for returning or disposing of classified information upon contract or agreement completion or termination, or when an entity no longer has a legitimate need to retain or possess classified information.

    (2) The GCA also determines whether the entity may retain classified information for particular purposes after the contract or agreement terminates, and if so, provides written authorization to the entity along with any instructions or limitations (such as which information, for how long, etc).

    § 2004.32 Determining entity eligibility for access to classified information.

    (a) Eligibility determinations. (1) The responsible CSA determines whether an entity is eligible for access to classified information. An entity may not have access to classified information until the responsible CSA determines that it meets all the requirements in this section. In general, the entity must be eligible to access classified information at the appropriate level before the CSA may consider any of the entity's subsidiaries, sub-contractors, or other sub-entities for eligibility. However, when the subsidiary will perform all classified work, the CSA may instead exclude the parent entity from access to classified information rather than determining its eligibility. In either case, the CSA must consider all information relevant to assessing whether the entity's access poses an unacceptable risk to national security interests.

    (2) A favorable access eligibility determination is not the same as a safeguarding capability determination. Entities may access classified information with a favorable eligibility determination, but may possess classified information only if the CSA determines both access eligibility and safeguarding capability, based on the GCA's requirement in the contract security classification specification (or equivalent).

    (3) If an entity has an existing eligibility determination, a CSA will not duplicate eligibility determination processes performed by another CSA. If a CSA cannot acknowledge an entity eligibility determination to another CSA, that entity may be subject to duplicate processing.

    (4) Each CSA maintains a record of its entities' eligibility determinations (or critical infrastructure entity eligibility status under the CCIPP, for DHS) and responds to inquiries from GCAs or entities, as appropriate and to the extent authorized by law, regarding the eligibility status of entities under their cognizance.

    (b) Process. (1) The responsible CSA provides guidance to entities on the eligibility determination process and on how to maintain eligibility throughout the period of the agreement or as long as an entity continues to need access to classified information in connection with a legitimate U.S. or foreign government requirement.

    (2) The CSA coordinates with appropriate authorities to determine whether an entity meets the eligibility criteria in paragraph (e) of this section. This includes coordinating with appropriate U.S. Government regulatory authorities to determine entity compliance with laws and regulations.

    (3) An entity cannot apply for its own eligibility determination. A GCA or an eligible entity must sponsor the entity to the responsible CSA for an eligibility determination. The GCA or eligible entity may sponsor an entity at any point during the contracting or agreement life-cycle at which the entity must have access to classified information to participate (including the solicitation or competition phase). An entity with limited eligibility granted under paragraph (f) of this section may sponsor a sub-entity for a limited eligibility determination for the same contract, agreement, or circumstance so long as the sponsoring entity is not under FOCI (see § 2004.34(i)).

    (4) The GCA must include enough lead time in each phase of the acquisition or agreement cycle to accomplish all required security actions. Required security actions include any eligibility determination necessary for an entity to participate in that phase of the cycle. The GCA may award a contract or agreement before the CSA completes the entity eligibility determination. However, in such cases, the entity may not begin performance on portions of the contract or agreement that require access to classified information until the CSA makes a favorable entity eligibility determination.

    (5) When a CSA is unable to make an eligibility determination in sufficient time to qualify an entity to participate in the particular procurement action or phase that gave rise to the GCA request (this includes both solicitation and performance phases), the GCA may request that the CSA continue the determination process to qualify the entity for future classified work for any GCA, provided that the processing delay was not due to the entity's lack of cooperation. Once the CSA determines that an entity is eligible for access to classified information, but a GCA does not award a contract or agreement requiring access to classified information to the entity, or the entity's eligibility status changes, the CSA terminates the entity eligibility determination in accordance with paragraph (g) of this section.

    (c) Coverage. (1) A favorable eligibility determination allows an entity to access classified information at the determined eligibility level, or lower.

    (2) The CSA must ensure that all entities needing access to classified information as part of a legitimate U.S. or foreign government requirement have or receive a favorable eligibility determination before accessing classified information. This includes both prime or parent entities and sub-entities, even in cases in which an entity intends to have the classified work performed only by sub-entities. A prime or parent entity must have a favorable eligibility determination at the same classification level or higher than its sub-entity(ies), unless the CSA determined that the parent entity could be effectively excluded from access (see paragraph (a)(1) of this section).

    (3) If a parent and sub-entity need to share classified information with each other, the CSA must validate that both the parent and the sub-entity have favorable eligibility determinations at the level required for the classified information prior to sharing the information.

    (d) DHS Classified Critical Infrastructure Protection Program (CCIPP). DHS shares classified cybersecurity information with certain employees of entities under the Classified Critical Infrastructure Protection Program (CCIPP). The CCIPP applies only to entities that do not need to store classified information, have no other contracts or agreements already requiring access to classified information, and are not already determined eligible for access to classified information. DHS establishes and implements procedures consistent with the NISP to determine CCIPP entity eligibility for access to classified information.

    (e) Eligibility criteria. An entity must meet the following requirements to be eligible to access classified information:

    (1) It must need to access classified information as part of a legitimate U.S. Government or foreign government requirement, and access must be consistent with U.S. national security interests as determined by the CSA;

    (2) It must be organized and existing under the laws of any of the 50 States, the District of Columbia, or an organized U.S. territory (Guam, Commonwealth of the Northern Marianas Islands, Commonwealth of Puerto Rico, and the U.S. Virgin Islands); or an American Indian or Alaska native tribe formally acknowledged by the Assistant Secretary—Indian Affairs, of the U.S. Department of the Interior;

    (3) It must be located in the United States or its territorial areas;

    (4) It must have a record of compliance with pertinent laws, regulations, and contracts (or other relevant agreements);

    (5) Its KMOs must each have and maintain eligibility for access to classified information that is at least the same level as the entity eligibility level;

    (6) It and all of its KMOs must not be excluded by a Federal agency, contract review board, or other authorized official from participating in Federal contracts or agreements;

    (7) It must meet all requirements the CSA or the authorizing law, regulation, or Government-wide policy establishes for access to the type of classified information or program involved; and

    (8) If the CSA determines the entity is under foreign ownership, control, or influence (FOCI), the responsible CSA must:

    (i) Agree that sufficient security measures are in place to mitigate or negate risk to national security interests due to the FOCI (see § 2004.34);

    (ii) Determine that it is appropriate to grant eligibility for a single, narrowly defined purpose (see § 2004.34(i)); or

    (iii) Determine that the entity is not eligible to access classified information.

    (9) DoD and DOE cannot award a contract involving access to proscribed information to an entity effectively owned or controlled by a foreign government unless the Secretary of the agency first issues a waiver (see 10 U.S.C. 2536). A waiver is not required if the CSA determines the entity is eligible and it agrees to establish a voting trust agreement (VTA) or proxy agreement (PA) (see § 2004.34(f)) because both VTAs and PAs effectively negate foreign government control.

    (f) Limited entity eligibility determination. CSAs may choose to allow GCAs to request limited entity eligibility determinations (this is not the same as limited entity eligibility in situations involving FOCI when the FOCI is not mitigated or negated; for more information on limited entity eligibility in such FOCI cases, see § 2004.34(i)). If a CSA permits GCAs to request a limited entity eligibility determination, it must set out parameters within its implementing policies that are consistent with the following requirements:

    (1) The GCA, or an entity with limited eligibility, must first request a limited entity eligibility determination from the CSA for the relevant entity and provide justification for limiting eligibility in that case;

    (2) Limited entity eligibility is specific to the requesting GCA's classified information, and to a single, narrowly defined contract, agreement, or circumstance;

    (3) The entity must otherwise meet the requirements for entity eligibility set out in this part;

    (4) The CSA documents the requirements of each limited entity eligibility determination it makes, including the scope of, and any limitations on, access to classified information;

    (5) The CSA verifies limited entity eligibility determinations only to the requesting GCA or entity. In the case of multiple limited entity eligibility determinations for a single entity, the CSA verifies each one separately only to its requestor; and

    (6) CSAs administratively terminate the limited entity eligibility when there is no longer a need for access to the classified information for which the CSA approved the limited entity eligibility.

    (g) Terminating or revoking eligibility. (1) The responsible CSA terminates the entity's eligible status when the entity no longer has a need for access to classified information.

    (2) The responsible CSA revokes the entity's eligible status if the entity is unable or unwilling to protect classified information.

    (3) The CSA coordinates with the GCA(s) to take interim measures, as necessary, toward either termination or revocation.

    § 2004.34 Foreign ownership, control, or influence (FOCI).

    (a) FOCI determination. A U.S. entity is under foreign ownership, control, or influence (FOCI) when:

    (1) A foreign interest has the power to direct or decide matters affecting the entity's management or operations in a manner that could:

    (i) Result in unauthorized access to classified information; or

    (ii) Adversely affect performance of a contract or agreement requiring access to classified information; and

    (2) The foreign interest exercises that power:

    (i) Directly or indirectly;

    (ii) Through ownership of the U.S. entity's securities, by contractual arrangements, or other similar means;

    (iii) By the ability to control or influence the election or appointment of one or more members to the entity's governing board (e.g., board of directors, board of managers, board of trustees) or its equivalent; or

    (iv) Prospectively (i.e., is not currently exercising the power, but could).

    (b) CSA guidance. The CSA establishes guidance for entities on filling out and submitting a Standard Form (SF) 328, Certificate Pertaining to Foreign Interests (OMB Control No. 0704-0194), and on reporting changes in circumstances that might result in a determination that the entity is under FOCI or is no longer under FOCI. The CSA also advises entities on the Government appeal channels for disputing CSA FOCI determinations.

    (c) FOCI factors. To determine whether an entity is under FOCI, the CSA analyzes available information to determine the existence, nature, and source of FOCI. The CSA:

    (1) Considers information the entity or its parent provides on the SF 328/CF 328 (OMB Control No. 0704-0194), and any other relevant information; and

    (2) Considers in the aggregate the following factors about the entity:

    (i) Record of espionage against U.S. targets, either economic or Government;

    (ii) Record of enforcement actions against the entity for transferring technology without authorization;

    (iii) Record of compliance with pertinent U.S. laws, regulations, and contracts or agreements;

    (iv) Type and sensitivity of the information the entity would access;

    (v) Source, nature, and extent of FOCI, including whether foreign interests hold a majority or minority position in the entity, taking into consideration the immediate, intermediate, and ultimate parent entities;

    (vi) Nature of any relevant bilateral and multilateral security and information exchange agreements;

    (vii) Ownership or control, in whole or in part, by a foreign government; and

    (viii) Any other factor that indicates or demonstrates foreign interest capability to control or influence the entity's operations or management.

    (d) Entity access while under FOCI. (1) If the CSA is determining whether an entity is eligible to access classified information and finds that the entity is under FOCI, the CSA must consider the entity ineligible for access to classified information. The CSA and the entity may then attempt to negotiate FOCI mitigation or negation measures sufficient to permit a favorable eligibility determination.

    (2) The CSA may not determine that the entity is eligible to access classified information until the entity has put into place appropriate security measures to negate or mitigate FOCI or is otherwise no longer under FOCI. If the degree of FOCI is such that no mitigation or negation efforts will be sufficient, or access to classified information would be inconsistent with national security interests, then the CSA will determine the entity ineligible for access to classified information.

    (3) If an entity comes under FOCI, the CSA may allow the existing eligibility status to continue while the CSA and the entity negotiate acceptable FOCI mitigation or negation measures, as long as there is no indication that classified information is at risk. If the entity does not actively negotiate mitigation or negation measures in good faith, or there are no appropriate measures that will remove the possibility of unauthorized access to classified information or adverse effect on the entity's performance of contracts or agreements involving classified information, the CSA will take steps, in coordination with the GCA, to terminate eligibility.

    (e) FOCI and entities under the CCIPP. DHS may sponsor, as part of the CCIPP, a U.S. entity that is under FOCI, under the following circumstances:

    (1) The Secretary of DHS proposes appropriate FOCI risk mitigation or negation measures (see paragraph (f) of this section) to the other CSAs and ensures the anticipated release of classified information:

    (i) Is authorized for release to the country involved;

    (ii) Does not include information classified under the Atomic Energy Act; and

    (iii) Does not impede or interfere with the entity's ability to manage and comply with regulatory requirements imposed by other Federal agencies, such as the State Department's International Traffic in Arms Regulation.

    (2) If the CSAs agree the mitigation or negation measures are sufficient, DHS may proceed to enter a CCIPP information sharing agreement with the entity. If one or more CSAs disagree, the Secretary of DHS may seek a decision from the Assistant to the President for National Security Affairs before entering a CCIPP information sharing agreement with the entity.

    (f) Mitigation or negation measures to address FOCI. (1) The CSA-approved mitigation or negation measures must assure that the entity can offset FOCI by effectively denying unauthorized people or entities access to classified information and preventing the foreign interest from adversely impacting the entity's performance on contracts or agreements requiring access to classified information.

    (2) Any mitigation or negation measures the CSA approves for an entity must not impede or interfere with the entity's ability to manage and comply with regulatory requirements imposed by other Federal agencies (such as Department of State's International Traffic in Arms Regulation).

    (3) If the CSA approves a FOCI mitigation or negation measure for an entity, it may agree that the measure, or particular portions of it, may apply to all of the present and future sub-entities within the entity's organization.

    (4) Mitigation or negation measures are different for ownership versus control or influence.

    (5) Methods to mitigate foreign control or influence (unrelated to ownership) may include:

    (i) Assigning specific oversight duties and responsibilities to independent board members;

    (ii) Formulating special executive-level security committees to consider and oversee matters that affect entity performance on contracts or agreements requiring access to classified information;

    (iii) Modifying or terminating loan agreements, contracts, agreements, and other understandings with foreign interests;

    (iv) Diversifying or reducing foreign-source income;

    (v) Demonstrating financial viability independent of foreign interests;

    (vi) Eliminating or resolving problem debt;

    (vii) Separating, physically or organizationally, the entity component performing on contracts or agreements requiring access to classified information;

    (viii) Adopting special board resolutions;

    (ix) A combination of these methods, as determined by the CSA; or

    (x) Other actions that effectively negate or mitigate foreign control or influence.

    (6) Methods to mitigate or negate foreign ownership include:

    (i) Board resolutions. The CSA and the entity may agree to a board resolution when a foreign interest does not own voting interests sufficient to elect, or is otherwise not entitled to representation on, the entity's governing board. The resolution must identify the foreign shareholders and their representatives (if any), note the extent of foreign ownership, certify that the foreign shareholders and their representatives will not require, will not have, and can be effectively excluded from, access to all classified information, and certify that the entity will not permit the foreign shareholders and their representatives to occupy positions that might enable them to influence the entity's policies and practices, affecting its performance on contracts or agreements requiring access to classified information.

    (ii) Security control agreements (SCAs). The CSA and the entity may agree to use an SCA when a foreign interest does not effectively own or control an entity (i.e., the entity is under U.S. control), but the foreign interest is entitled to representation on the entity's governing board. At least one cleared U.S. citizen must serve as an outside director on the entity's governing board.

    (iii) Special security agreements (SSAs). The CSA and the entity may agree to use an SSA when a foreign interest effectively owns or controls an entity. The SSA preserves the foreign owner's right to be represented on the entity's board or governing body with a direct voice in the entity's business management, while denying the foreign owner majority representation and unauthorized access to classified information. When a GCA requires an entity to have access to proscribed information, and the CSA proposes an SSA as the mitigation measure, the CSA makes a national interest determination (NID) as part of determining an entity's eligibility for access. See paragraph (h) of this section for more information on NIDs.

    (iv) Voting trust agreements (VTAs) or proxy agreements (PAs). The CSA and the entity may agree to use one of these measures when a foreign interest effectively owns or controls an entity. The VTA and PA are arrangements that vest the voting rights of the foreign-owned stock in cleared U.S. citizens approved by the CSA. Under the VTA, the foreign owner transfers legal title in the entity to the trustees approved by the CSA. Under the PA, the foreign owner conveys their voting rights to proxy holders approved by the CSA. The entity must be organized, structured, and financed to be capable of operating as a viable business entity independently from the foreign owner. Both VTAs and PAs can effectively negate foreign ownership and control; therefore, neither imposes any restrictions on the entity's eligibility to have access to classified information or to compete for contracts or agreements requiring access to classified information, including those involving proscribed information. Both VTAs and PAs can also effectively negate foreign government control.

    (v) Combinations of the measures in paragraphs (f)(6)(i) through (iv) of this section or other similar measures that effectively mitigate or negate the risks involved with foreign ownership. CSAs must identify combination agreements in a way that distinguishes them from other agreements (e.g., a combination SSA-proxy agreement cannot be identified as either an SSA or a proxy agreement beause those names would not distinguish the combination agreement from either of the other types). CSAs must also coordinate terms in combination agreements with the controlling agency prior to releasing proscribed information.

    (g) Standards for FOCI mitigation or negation measures. The CSA must include the following requirements as part of any FOCI mitigation or negation measures, to ensure that entities implement necessary security and governing controls:

    (1) Annual certification and annual compliance reports by the entity's governing board and the KMOs;

    (2) The U.S. Government remedies in case the entity is not adequately protecting classified information or not adhering to the provisions of the mitigation or negation measure;

    (3) Supplements to FOCI mitigation or negation measures as the CSA deems necessary. In addition to the standard FOCI mitigation or negation measure's requirements, the CSA may require more procedures via a supplement, based upon the circumstances of an entity's operations. The CSA may place these requirements in supplements to the FOCI mitigation or negation measure to allow flexibility as circumstances change without having to renegotiate the entire measure. When making use of supplements, the CSA does not consider the FOCI mitigation measure final until it approves the required supplements (e.g., technology control plan, electronic communication plan); and

    (4) For agreements to mitigate or negate ownership (PAs, VTAs, SSAs, and SCAs), the following additional requirements apply:

    (i) FOCI oversight. The CSA verifies that the entity establishes an oversight body consisting of trustees, proxy holders or outside directors, as applicable, and those officers or directors whom the CSA determines are eligible for access to classified information (see § 2004.36). The entity's security officer is the principal advisor to the oversight body and attends their meetings. The oversight body:

    (A) Maintains policies and procedures to safeguard classified information in the entity's possession with no adverse impact on performance of contracts or agreements requiring access to classified information; and

    (B) Verifies the entity is complying with the FOCI mitigation or negation measure and related documents, contract security requirements or equivalent, and the NISP;

    (ii) Qualifications of trustees, proxy holders, and outside directors. The CSA determines eligibility for access to classified information for trustees, proxy holders, and outside directors at the classification level of the entity's eligibility determination. Trustees, proxy holders, and outside directors must meet the following criteria:

    (A) Be a U.S. citizen residing in the United States who can exercise management prerogatives relating to their position in a way that ensures that the foreign owner can be effectively insulated from the entity or effectively separated from the entity's classified work;

    (B) Be completely disinterested individuals with no prior involvement with the entity, the entities with which it is affiliated, or the foreign owner and its affiliates. Individuals who are serving as trustees, proxy holders, or outside directors as part of a mitigation measure for the entity are not considered to have prior involvement solely by performing that role; and

    (C) Be involved in no other circumstances that may affect an individual's ability to serve effectively, such as the number of boards on which the individual serves or the length of time serving on any other boards;

    (iii) Annual meeting. The CSA meets at least annually with the oversight body to review the purpose and effectiveness of the FOCI mitigation or negation agreement; establish a common understanding of the operating requirements and their implementation; and provide guidance on matters related to FOCI mitigation and industrial security. These meetings include a CSA review of:

    (A) Compliance with the approved FOCI mitigation or negation measure;

    (B) Problems regarding practical implementation of the mitigation or negation measure; and

    (C) Security controls, practices, or procedures and whether they warrant adjustment; and

    (iv) Annual certification. The CSA reviews the entity's annual report; addresses, and resolves issues identified in the report; and documents the results of this review and any follow-up actions.

    (h) National interest determination (NID)—(1) Requirement for a NID. (i) The CSA must determine whether allowing an entity access to proscribed information under an SSA is consistent with national security interests of the United States as part of making an entity eligibility determination in cases in which:

    (A) The GCA requires an entity to have access to proscribed information;

    (B) The entity is under FOCI; and

    (C) The CSA proposes an SSA to mitigate the FOCI.

    (ii) This determination is called a national interest determination (NID). A favorable NID confirms that an entity's access to the proscribed information under an SSA is consistent with national security interests. If the CSA is unable to render a favorable NID, it must consider other FOCI mitigation measures instead of an SSA or reassess the entity's eligibility for access to classified information.

    (2) NID process. (i) The CSA makes the NID for any categories of proscribed information for which the entity requires access.

    (ii) In cases in which any category of the proscribed information is controlled by another agency (ODNI for SCI, DOE for RD, NSA for COMSEC), the CSA asks that controlling agency to concur on the NID for that category of information.

    (iii) The CSA informs the GCA and the entity when the NID is complete. In cases involving SCI, RD, or COMSEC, the CSA also informs the GCA and the entity when a controlling agency concurs or non-concurs on that agency's category of proscribed information. The entity may begin accessing a category of proscribed information once the CSA informs the GCA and the entity that the controlling agency concurs, even if other categories of proscribed information are pending concurrence.

    (iv) An entity's access to SCI, RD, or COMSEC remains in effect so long as the entity remains eligible for access to classified information and the contract or agreement (or program or project) which imposes the requirement for access to those categories of proscribed information remains in effect, except under the following circumstances:

    (A) The CSA, GCA, or controlling agency becomes aware of adverse information that impacts the entity eligibility determination;

    (B) The CSA's threat assessment pertaining to the entity indicates a risk to one of the categories of proscribed information;

    (C) The CSA becomes aware of any material change regarding the source, nature, and extent of FOCI; or

    (D) The entity's record of NISP compliance, based on CSA reviews in accordance with § 2004.26, becomes less than satisfactory.

    (v) Under any of these circumstances, the CSA determines whether an entity may continue being eligible for access to classified information, it must change the FOCI mitigation measure in order to remain eligible, or the CSA must terminate or revoke access.

    (3) Process for concurring or non-concurring on a NID. (i) Each controlling agency tells the CSAs what information the controlling agency requires to consider a NID. ODNI identifies the information it requires to assess a NID for access to SCI, DOE identifies the information it requires to assess a NID for access to RD, and NSA identifies the information it requires to assess a NID for access to COMSEC.

    (ii) The CSA requests from the GCA justification for access, a description of the proscribed information involved, and other information the controlling agency requires to concur or non-concur on the NID.

    (iii) The CSA requests concurrence on the NID from the controlling agency for the relevant category of proscribed information (ODNI for SCI, DOE for RD, NSA for COMSEC), and provides the information that controlling agency identified.

    (iv) The relevant controlling agency (ODNI for SCI, DOE for RD, NSA for COMSEC) responds in writing to the CSA's request for concurrence.

    (A) The controlling agency may concur with the NID for access under a particular contract or agreement, access under a program or project, or for all future access to the same category of proscribed information.

    (B) If the relevant controlling agency does not concur with the NID, the controlling agency informs the CSA in writing, citing the reasons why it does not concur. The CSA notifies the applicable GCA and, in coordination with the GCA, then notifies the entity. The entity cannot have access to the category of proscribed information under the control of that agency (i.e., if ODNI does not concur, the entity may not have access to SCI; if DOE does not concur, the entity may not have access to RD; and if NSA does not concur, the entity may not have access to COMSEC). The CSA, in consultation with the applicable GCA, must decide whether the reason the controlling agency did not concur otherwise affects the entity's eligibility for access to classified information (see § 2004.32(g)), or requires changing the FOCI mitigation measure (see paragraph (f) of this section).

    (v) When an entity is eligible for access to classified information that includes a favorable NID for SCI, RD, or COMSEC, the CSA does not have to request a new NID concurrence for the same entity if the access requirements for the relevant category of proscribed information and terms remain unchanged for:

    (A) Renewing the contract or agreement;

    (B) New task orders issued under the contract or agreement;

    (C) A new contract or agreement that contains the same provisions as the previous one (this usually applies when the contract or agreement is for a program or project); or

    (D) Renewing the SSA.

    (vi) When making the decision whether or not to concur with a NID for proscribed information under its control, the controlling agency will not duplicate work already performed by the GCA during the contract award process or by the CSA when determining entity eligibility for access to classified information.

    (4) Timing for concurrence process. (i) The CSA requests NID concurrence from the controlling agency as soon as the CSA has made a NID, if the entity needs access to SCI, RD, or COMSEC.

    (ii) The controlling agency provides a final, written concurrence or non-concurrence to the CSA within 30 days after receiving the request for concurrence from the CSA.

    (iii) In cases when a controlling agency requires clarification or additional information from the CSA, the controlling agency responds to the CSA within 30 days to request clarification or additional information as needed, and to coordinate a plan and timeline for concurring or non-concurring. The controlling agency must provide written updates to the CSA every 30 days until it concurs or non-concurs. In turn, the CSA provides the GCA and the entity with updates every 30 days.

    (i) Limited eligibility determinations (for entities under FOCI without mitigation or negation). (1) In exceptional circumstances when an entity is under FOCI, the CSA may decide that limited eligibility for access to classified information is appropriate when the entity is unable or unwilling to implement FOCI mitigation or negation measures (this is not the same as limited eligibility in other circumstances; for more information on limited eligibility in other cases, see § 2004.32(f)).

    (2) The GCA first decides whether to request a limited eligibility determination for the entity and must articulate a compelling need for it to the CSA that is in accordance with U.S. national security interests. The GCA must verify to the CSA that access to classified information is essential to contract or agreement performance, and accept the risk inherent in not mitigating or negating the FOCI. See § 2004.32(b)(3).

    (3) The CSA may grant a limited eligibility determination if the GCA requests and the entity meets all other eligibility criteria in § 2004.32(e).

    (4) A foreign government may sponsor a U.S. sub-entity of a foreign entity for limited eligibility when the foreign government desires to award a contract or agreement to the U.S. sub-entity that involves access to classified information for which the foreign government is the original classification authority (i.e., foreign government information), and there is no other need for the U.S. sub-entity to have access to classified information.

    (5) Limited eligibility determinations are specific to the classified information of the requesting GCA or foreign government, and specific to a single, narrowly defined contract, agreement, or circumstance of that GCA or foreign government.

    (6) The access limitations of a favorable limited eligibility determination apply to all of the entity's employees, regardless of citizenship.

    (7) A limited eligibility determination is not an option for entities that require access to proscribed information when a foreign government has ownership or control over the entity. See § 2004.32(e)(9).

    (8) The CSA administratively terminates the entity's limited eligibility when there is no longer a need for access to the classified information for which the CSA made the favorable limited eligibility determination. Terminating one limited eligibility status does not impact other ones the entity may have.

    § 2004.36 Determining entity employee eligibility for access to classified information.

    (a) Making employee eligibility determinations. (1) The responsible CSA:

    (i) Determines whether entity employees meet the criteria established in the Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines (December 10, 2016). Entity employees must have a legitimate requirement (i.e., need to know) for access to classified information in the performance of assigned duties and eligibility must be clearly consistent with the interest of the national security.

    (ii) Notifies entities of its determinations of employee eligibility for access to classified information.

    (iii) Terminates eligibility status when there is no longer a need for access to classified information by entity employees.

    (2) The responsible CSA maintains:

    (i) SF 312s, Classified Information Nondisclosure Agreements, or other approved nondisclosure agreements, executed by entity employees, as prescribed by ODNI in accordance with 32 CFR 2001.80 and E.O. 13526; and

    (ii) Records of its entity employee eligibility determinations, suspensions, and revocations.

    (3) CSAs ensure that entities limit the number of employees with access to classified information to the minimum number necessary to work on contracts or agreements requiring access to classified information.

    (4) The CSA determines the need for event-driven reinvestigations for entity employees.

    (5) CSAs use the Federal Investigative Standards (FIS) issued jointly by the Suitability and Security Executive Agents.

    (6) The CSA provides guidance to entities on:

    (i) Requesting employee eligibility determinations, to include guidance for submitting fingerprints; and

    (ii) Granting employee access to classified information when the employee has had a break in access or a break in employment.

    (7) If the CSA receives adverse information about an eligible entity employee, the CSA should consider and possibly investigate, as authorized, to determine whether the employee's eligibility to access classified information remains clearly consistent with the interests of national security. If the CSA determines that an entity employee's continued eligibility is not in the interest of national security, the CSA implements procedures leading to suspension and ultimate revocation of the employee's eligible status, and notifies the entity.

    (b) Consultants. A consultant is an individual under contract or agreement to provide professional or technical assistance to an entity in a capacity requiring access to classified information. A consultant is considered an entity employee for security purposes. The CSA makes eligibility determinations for entity consultants in the same way it does for entity employees.

    (c) Reciprocity. The responsible CSA determines if an entity employee was previously investigated or determined eligible by another CSA. CSAs reciprocally accept existing employee eligibility determinations in accordance with applicable and current national level personnel security policy, and must not duplicate employee eligibility investigations conducted by another CSA.

    (d) Limited access authorization (LAA). (1) CSAs may make LAA determinations for non-U.S. citizen entity employees in rare circumstances, when:

    (i) A non-U.S. citizen employee possesses unique or unusual skill or expertise that the agency urgently needs to support a specific U.S. Government contract or agreement; and

    (ii) A U.S. citizen with those skills is not available.

    (2) A CSA may grant LAAs up to the secret classified level.

    (3) CSAs may not use LAAs for access to:

    (i) Top secret (TS) information;

    (ii) RD or FRD information;

    (iii) Information that a Government-designated disclosure authority has not determined releasable to the country of which the individual is a citizen;

    (iv) COMSEC information;

    (v) Intelligence information, to include SCI;

    (vi) NATO information, except as follows: Foreign nationals of a NATO member nation may be authorized access to NATO information subject to the terms of the contract, if the responsible CSA obtains a NATO security clearance certificate from the individual's country of citizenship. NATO access is limited to performance on a specific NATO contract;

    (vii) Information for which the U.S. Government has prohibited foreign disclosure in whole or in part; or

    (viii) Information provided to the U.S. Government by another government that is classified or provided in confidence.

    (4) The responsible CSA provides specific procedures to entities for requesting LAAs. The GCA must concur on an entity's LAA request before the CSA may grant it.

    § 2004.38 Safeguarding and marking.

    (a) Safeguarding approval. (1) The CSA determines whether an entity's safeguarding capability meets requirements established in 32 CFR part 2001, and other applicable national level policy (e.g., Atomic Energy Act for RD). If the CSA makes a favorable determination, the entity may store classified information at that level or below. If the determination is not favorable, the CSA must ensure that the entity does not possess classified information or does not possess information at the classification level denied or a higher level.

    (2) The CSA maintains records of its safeguarding capability determinations and, upon request from GCAs or entities, and as appropriate and to the extent authorized by law, verifies that it has made a favorable safeguarding determination for a given entity and at what level.

    (b) Marking. The GCA provides guidance to entities that meets requirements in 32 CFR 2001.22, 2001.23, 2001.24, and 2001.25, Derivative classification, Classification marking in the electronic environment, Additional requirements, and Declassification markings; ISOO's marking guide, Marking Classified National Security Information; and other applicable national level policy (e.g., Atomic Energy Act for RD) for marking classified information and material.

    § 2004.40 Information system security.

    (a) The responsible CSA must authorize an entity information system before the entity can use it to process classified information. The CSA must use the most complete, accurate, and trustworthy information to make a timely, credible, and risk-based decision whether to authorize an entity's system.

    (b) The responsible CSA issues to entities guidance that establishes protection measures for entity information systems that process classified information. The responsible CSA must base the guidance on standards applicable to Federal systems, which must include the Federal Information Security Modernization Act of 2014 (FISMA), Public Law 113-283, and may include National Institute of Standards and Technology (NIST) publications, Committee on National Security Systems (CNSS) publications, and Federal information processing standards (FIPS).

    § 2004.42 [Reserved] Appendix A to Part 2004—Acronym Table

    For details on many of these terms, see the definitions at § 2004.4.

    CCIPP—Classified Critical Infrastructure Protection Program CCIPP POC—Entity point of contact under the CCIPP program CIA—Central Intelligence Agency CSA—Cognizant security agency CNSS—Committee on National Security Systems COMSEC—Communications security CSO—Cognizant security office DHS—Department of Homeland Security DoD—Department of Defense DOE—Department of Energy EA—Executive agent (the NISP executive agent is DoD) E.O.—Executive Order FAR—Federal Aquisition Regulation FOCI—Foreign ownership, control, or influence GCA—Government contracting activity Insider threat program SO—insider threat senior official (for an agency or for an entity) ISOO—Information Security Oversight Office of the National Archives and Records Administration (NARA) KMO—Key managers and officials (of an entity) LAA—Limited access authorization NID—National interest determination NISPOM—National Industrial Security Program Operating Manual NRC—Nuclear Regulatory Commission NSA—National Security Agency ODNI—Office of the Director of National Intelligence PA—Proxy agreement RD—Restricted data SF—Standard Form SAO—Senior agency official for NISP SAP—Special access program SCA—Security control agreement SCI—Sensitive compartmented information SSA—Special security agreement TS—Top secret (classification level) VT—Voting trust
    David S. Ferriero, Archivist of the United States.
    [FR Doc. 2018-09465 Filed 5-4-18; 8:45 am] BILLING CODE 7515-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0077] RIN 1625-AA00 Safety Zone; Ohio River, Metropolis, IL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing an emergency temporary safety zone for all navigable waters of the Ohio River extending from mile marker (MM) 939.8 to MM 943.0 near Metropolis, IL. This emergency safety zone is needed to protect life, vessels, and the marine environment due to the sinking of one barge in the navigable channel of the Ohio River near MM 940.8 and one barge near the left descending bank at MM 942.5. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.

    DATES:

    This rule is effective without actual notice from 12:01 a.m. until 11:59 p.m. on May 7, 2018. For the purposes of enforcement, actual notice will be used from May 1, 2018 until May 7, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0077 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Joshua Herriott, Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5343, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable and contrary to the public interest. On May 1, 2018, a towing vessel struck the I-24 Bridge near mile marker (MM) 940.8, causing 12 barges to break away. One barge sank near MM 940.8, and another sank near MM 942.5 on the left-descending bank. This safety zone must be established immediately to protect people and vessels associated with and resulting from the hazard to navigation created by the sunken barges and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. This safety zone includes closures and navigation restrictions and requirements that are vital to maintaining safe navigation on the Ohio River during the recovery of the sunken barges. Therefore, delaying the effective date for this emergency safety zone to complete the NPRM process would also be contrary to the public interest as it would delay the safety measures vital to safe navigation.

    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 contrary to public interest because immediate action is needed to protect personnel, vessels, and the marine environment from potential hazards created by the sunken barges.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the sunken barges will be a safety concern for anyone within MM 939.8 to MM 943.0 of the Ohio River, starting on May 1, 2018, and continuing 24 hours daily through 11:59 p.m. on May 7, 2018. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the sunken barges are being recovered.

    IV. Discussion of the Rule

    The Coast Guard is establishing a temporary emergency safety zone for all navigable waters of the Ohio River from MM 939.8 and MM 943.0, extending the entire width of the river. Entry is prohibited for all traffic beginning on May 1, 2018 and will continue to be prohibited through midnight on May 7, 2018 or until the hazard has been mitigated. The COTP will terminate the enforcement of this safety zone before May 7, 2018, if the sunken barges have been recovered. Entry into this safety zone is prohibited unless authorized by the COTP or his designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

    Requests for entry will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at 502-779-5422 or can be reached by VHF-FM channel 16. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the 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 determination is based on the limited size, location, and duration the safety zone, and the time of year. This safety zone will restrict vessel traffic from entering or transiting within a 3.2 mile area of navigable waterways on the Ohio River between MM 939.8 and MM 943.0. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 Management 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 an emergency safety zone lasting less than one week that will prohibit entry on a 3.2 mile stretch of the Ohio River during recovery of sunken barges. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Because this safety zone is established in response to an emergency situation and is less than one week in duration, a Record of Environmental Consideration (REC) is not required. Should this emergency situation require a safety zone lasting longer than one week, a REC will be made available as indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0077 to read as follows:
    § 165.T08-0077 Safety Zone; Ohio River, Metropolis, IL.

    (a) Location. The following area is a safety zone: All navigable waters of the Ohio River from mile marker (MM) 939.8 to MM 943.0, extending the entire width of the river.

    (b) Enforcement period. This section will be enforced from May 1, 2018, through May 7, 2018, or until the sunken barges are recovered, whichever occurs first.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or designated representative. A “designated representative” is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

    (2) Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. To seek entry into the safety zone, contact the COTP or the COTP's representative by telephone at 502-779-5422 or on VHF-FM channel 16.

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

    (d) Information broadcasts. The COTP or a designated representative will inform the public of the enforcement times and dates for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Broadcasts (MSIBs), as appropriate.

    Dated: May 2, 2018. M.B. Zamperini, Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2018-09662 Filed 5-4-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-0363] Safety Zone; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone—Marinette Logging and Heritage Fest AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the Marinette Logging and Heritage Festival Fireworks on the Menomonee River in Marinette, WI from 9 p.m. through 11 p.m. on July 14, 2018. This action is necessary and intended to ensure safety of life on navigable waters immediately prior to, during, and after the fireworks display. During the enforcement period, entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or a designated representative.

    DATES:

    The regulations in 33 CFR 165.929 will be enforced for safety zone (e)(50), Table 165.929, from 9 p.m. through 11 p.m. on July 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email marine event coordinator, MSTC K. Carpino, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI; telephone (414) 747-7148, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the Marinette Logging and Heritage Festival Fireworks safety zone listed as item (e)(50) in Table 165.929 of 33 CFR 165.929 from 9 p.m. through 11 p.m. on July 14, 2018 on all waters of the Menominee River, in the vicinity of Stephenson Island, within the arc of a circle with a 900-foot radius from the fireworks launch site in position 45°06.232′ N, 087°37.757′ W (NAD 83). Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or a designated on-scene representative.

    This notice of enforcement is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard plans to provide the maritime community with advance notification for the enforcement of this safety zone via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan or a designated representative will inform the public through a Broadcast Notice to Mariners of any changes in the planned schedule. The Captain of the Port Lake Michigan or a representative may be contacted via Channel 16, VHF-FM., or via telephone (414) 747-7182

    Dated: April 19, 2018. Thomas J. Stuhlreyer, Captain, U.S. Coast Guard, Captain of the Port, Lake Michigan.
    [FR Doc. 2018-09663 Filed 5-4-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0376] RIN 1625-AA00 Safety Zone; Neches River, Beaumont, TX AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule; request for comments.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone on navigable waters of the Neches River extending 500-feet on either side of the Kansas City Southern Railroad Bridge that crosses the Neches River in Beaumont, TX. The safety zone is necessary to protect the bridge as well as persons and property on or near the bridge from potential damage from passing vessels until missing and/or damaged fendering systems are repaired or replaced. Entry of certain vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Marine Safety Unit Port Arthur or a designated representative. We invite your comments on this rule.

    DATES:

    This rule is effective without actual notice from May 7, 2018 through midnight on August 31, 2018. For the purposes of enforcement, actual notice will be used from May 1, 2018 through May 7, 2018. Comments and related material must be received before May 29, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0376 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comment” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0376 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 Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Marine Safety Unit Port Arthur DHS Department of Homeland Security FR Federal Register KCS Kansas City Southern Railroad Company NPRM Notice of proposed rulemaking § Section U.S.C. United States Code VTS Vessel Traffic Service II. Background Information and Regulatory History

    On April 19, 2018, the Coast Guard was notified that the wood fendering systems designed to protect bridge support columns of the Kansas City Southern Railroad Company's bridge (KSC) from strikes by vessels transiting under the bridge had been damaged or destroyed by Hurricane Harvey. The south bank column protection fenders are missing and the north bank column protection fenders are severely damaged. KCS indicated that strikes to the support columns could compromise the bridge structure.

    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)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The fendering systems protecting the bridge from strikes by passing marine traffic are missing or severely damaged and we must establish this safety zone immediately to protect the bridge and those persons that use the bridge. The Coast Guard is providing an opportunity to comment while the rule is in effect and may amend the rule after it becomes effective, if necessary.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to respond to potential safety hazards posed by and to passing vessel traffic by and to the unprotected bridge columns supporting the KCS Bridge.

    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 Marine Safety Unit Port Arthur (COTP) has determined that potential hazards posed by the unprotected bridge columns are a safety concern to the KCS Bridge and to persons and property on or near the bridge. The purpose of this rule is to provide for the safety of the KCS Bridge and persons and property on or near the bridge.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 1 p.m. on May 1, 2018 through midnight on August 31, 2018 until missing and/or damaged fendering systems are repaired or replaced, whichever occurs first. The safety zone will extend 500-feet on either side of the KCS Bridge that crosses the Neches River in Beaumont, TX in approximate location 30° 04′54.8″ N 094°05′29.4″ W. The duration of the zone is intended to protect the bridge support columns as well as persons and property on or near the bridge until the bridge fendering is repaired or replaced. Only vessels less than 65 feet in length and not engaged in towing are authorized to enter the zone, unless otherwise permitted by the COTP or a designated representative are permitted to enter the safety zone.

    Persons and vessels not permitted to enter the safety zone must request permission from the COTP or a designated representative. They may be contacted through Vessel Traffic Service (VTS) on channels 65A or 13 VHF-FM, or by telephone at (409) 719-5070.

    Permission to transit through the bridge will be based on weather, tide and current conditions, vessel size, horsepower, and availability of assist vessels. All persons and vessels permitted to enter this temporary safety zone shall comply with the lawful orders or directions given to them by COTP or a designated representative.

    Intentional or unintentional contact with any part of the bridge or associated structure, including fendering systems, support columns, spans or any other portion of the bridge, is strictly prohibited. Report any contact with the bridge or associated structures immediately to VTS Port Arthur on channels 65A, 13 or 16 VHF-FM or by telephone at (409) 719-5070.

    The Coast Guard will inform the public through public of the effective period of this safety zone through VTS Advisories, Broadcast Notices to Mariners (BNMs), Local Notice to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    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 as a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

    This regulatory action determination is based on the size, location and duration of the safety zone. This rule will only affect certain vessels transiting the upper reaches of the Neches River in Beaumont, TX. The Coast Guard will issue a VTS Advisory concerning the zone, and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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-feet of either side of the KCS Bridge that crosses the Neches River in Beaumont, TX. It is categorically excluded from further review under paragraph L60(d) 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.

    VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. The Coast Guard may amend this temporary final rule if we receive comments from the public that indicate that a change is warranted. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion.

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

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

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0376 to read as follows:
    § 165.T08-0376 Safety Zone; Neches River, Beaumont, TX.

    (a) Location. The following area is a safety zone: all navigable waters extending 500-feet on either side of the Kansas City Southern Railroad Bridge that crosses the Neches River in Beaumont, TX in approximate location 30°04′54.8″ N 094°05′29.4″ W.

    (b) Effective period. This section is effective from 1 p.m. on May 1, 2018 through midnight on August 31, 2018 or until missing and/or damaged fendering systems are repaired or replaced, whichever occurs first.

    (c) Regulations. (1) No vessel may enter or remain in the safety zone except:

    (i) A vessel less than 65 feet in length and not engaged in towing; or

    (ii) A vessel authorized by the Captain of the Port Marine Safety Unit Port Arthur (COTP) or a designated representative

    (2) Persons and vessels not permitted to enter the safety zone must request permission from the COTP or a designated representative. They may be contacted through Vessel Traffic Service (VTS) on channels 65A or 13 VHF-FM, or by telephone at (409) 719-5070.

    (3) Permission to transit through the bridge will be based on weather, tide and current conditions, vessel size, horsepower, and availability of assist vessels. All persons and vessels permitted to enter this temporary safety zone shall comply with the lawful orders or directions given to them by COTP or a designated representative.

    (4) Intentional or unintentional contact with any part of the bridge or associated structure, including fendering systems, support columns, spans or any other portion of the bridge, is strictly prohibited. Report any contact with the bridge or associated structures immediately to VTS Port Arthur on channels 65A, 13 or 16 VHF-FM or by telephone at (409) 719-5070.

    (d) Informational broadcasts. The Coast Guard will inform the public of the effective period of this safety zone through VTS Advisories, Broadcast Notices to Mariners (BNMs), Local Notice to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    Dated: May 1, 2018. Jacqueline Twomey, Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port Arthur.
    [FR Doc. 2018-09667 Filed 5-4-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0294; FRL-9977-31] Duddingtonia flagrans strain IAH 1297; Exemption from the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of Duddingtonia flagrans strain IAH 1297 in or on all food commodities when used in accordance with label directions and good agricultural practices. International Animal Health Products Pty. Ltd. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Duddingtonia flagrans strain IAH 1297 under FFDCA.

    DATES:

    This regulation is effective May 7, 2018. Objections and requests for hearings must be received on or before July 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0294, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Robert McNally, Director, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0294 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0294, by one of the following methods:

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

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

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Background and Statutory Findings

    In the Federal Register of October 23, 2017 (82 FR 49022) (FRL-9967-37), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6F8531) by International Animal Health Products Pty. Ltd., 18 Healey Circuit, Huntingwood, New South Wales 2148, Australia (in care of SciReg. Inc., 12733 Director's Loop, Woodbridge, VA 22192). The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Duddingtonia flagrans strain IAH 1297 in or on all raw and processed agricultural commodities. That document referenced a summary of the petition prepared by the petitioner International Animal Health Products Pty. Ltd., which is available in the docket via http://www.regulations.gov. There were no comments received in response to the notice of filing.

    EPA changed the commodity to be reflected in the tolerance expression from “in or on all raw and processed agricultural commodities” to “in or on all food commodities.” The reason for this change is explained in Unit VII.B.

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

    EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, for microbial pesticides, EPA determines the pathogenicity and toxicity of the pesticide. Second, EPA examines exposure to the pesticide through food, drinking water, and other exposures that occur as a result of pesticide use in residential settings, as well as other non-occupational exposure to the substance.

    III. Toxicological Profile

    Consistent with FFDCA section 408(b)(2)(D), EPA reviewed the available scientific data and other relevant information on Duddingtonia flagrans strain IAH 1297 and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    A. Overview of Duddingtonia flagrans Strain IAH 1297 (Refs. 1 and 2)

    Duddingtonia flagrans is a fungus commonly found worldwide in soils, various plant materials, and animal feces that, in the presence of nematodes, forms looped adhesive network traps in animal feces in pasture when the diet of grazing animals is supplemented with the fungus' chlamydospores or the chlamydospores are acquired naturally from soil or plant material while the animals graze. Duddingtonia flagrans strain IAH 1297 chlamydospores can survive passage through the rumen and gastrointestinal tract after ingestion by grazing animals and then germinate on pasture (i.e., the chlamydospores do not germinate in animals and cannot grow at normal body temperature or under anaerobic conditions). Nematode eggs excreted by pastured or wild animals hatch in the presence of Duddingtonia flagrans strain IAH 1297. Thereafter, Duddingtonia flagrans strain IAH 1297 passively traps nematodes, penetrates the nematode cuticle and kills them within 4-8 hours, occupies the nematode body with hyphae within 20-36 hours, and consumes nematodes within 48 hours, thus breaking the infection excretion and reinfection cycle of nematodes. Duddingtonia flagrans strain IAH 1297's use as a feed-through nematicide comes as growing anthelmintic (antiparasitic drug) resistance and general lack of new drug options to treat affected animals is becoming a concern.

    B. Microbial Pesticide Toxicology Data Requirements

    All applicable mammalian toxicology data requirements supporting the request for an exemption from the requirement of a tolerance for residues of Duddingtonia flagrans strain IAH 1297 in or on all food commodities have been fulfilled with data submitted by the petitioner or data waiver requests that have been granted by EPA. The toxicity tests (acute oral and dermal) and the primary dermal irritation test that address potential routes of exposure to the active ingredient are all classified in Toxicity Category IV (see section II of Ref. 3) and reveal no toxicity or irritation attributed to Duddingtonia flagrans strain IAH 1297. Moreover, during typical toxicity/pathogenicity testing done with microbial pesticides, Duddingtonia flagrans strain IAH 1297 showed no toxicity, pathogenicity, or infectivity via the pulmonary route of exposure. The conclusions and classifications from all toxicological information associated with the active ingredient and submitted by the petitioner are briefly described below.

    1. Acute oral toxicity—rat (Harmonized Guideline 870.1100; Master Record Identification Number (MRID) No. 503887-01). An acceptable acute oral toxicity study demonstrated that Duddingtonia flagrans strain IAH 1297 is not toxic to female rats when dosed via the oral route at 5,000 milligrams per kilogram (mg/kg) of bodyweight. The oral median lethal dose (LD50), which is a statistically derived single dose that can be expected to cause death in 50% of test animals, was greater than 5,000 mg/kg of bodyweight for female rats (Toxicity Category IV). (Refs. 1 and 2).

    2. Acute oral toxicity/pathogenicity (Harmonized Guideline 885.3050; MRID Nos. 501117-14 and 501117-27). An acceptable scientific rationale was submitted by the petitioner; therefore, EPA waived acute oral toxicity/pathogenicity testing for Duddingtonia flagrans strain IAH 1297. An acute oral toxicity study conducted on female rats (MRID No. 503887-01) demonstrated that Duddingtonia flagrans strain IAH 1297 was not toxic (LD50 greater than 5,000 mg/kg; Toxicity Category IV). Further, field studies were conducted on animal groups in Australia under direction of veterinarians. A 56-day study using young cattle demonstrated that a test substance containing Duddingtonia flagrans strain IAH 1297 had no discernible health effects when given with feed at 125 grams per 100 kilograms of bodyweight per day (representing 10X the label use rate). A 42-day study using Merino ewes had no findings attributable to treatment with a test substance containing Duddingtonia flagrans strain IAH 1297, and both groups had statistically similar weight gains throughout at 1 kilogram per group per day (representing 5X the label use rate). A 56-day study using horses demonstrated that a test substance containing Duddingtonia flagrans strain IAH 1297 had no discernible health effects when given with feed at 1 gram per kilogram bodyweight per day (representing 10X the label use rate). No signs of any infection were observed during these lengthy studies. EPA believes these data, when taken together, indicate that this fungus would not be toxic, infective, and/or pathogenic through the oral route of exposure and that further testing is not necessary. (Refs. 1 and 2).

    3. Acute pulmonary toxicity/pathogenicity—rat (Harmonized Guideline 885.3150; MRID Nos. 501117-15, 501117-16, 505317-00, and 505318-00). An acceptable acute pulmonary toxicity/pathogenicity study performed with Duddingtonia flagrans strain IAH 1297 did not induce signs of toxicity, infectivity, or pathogenicity when administered to rats as a single, intratracheal dose of 5.8 × 104 spores per animal. Additionally, clearance was established by day 42 of the test. (Refs. 1, 2, and 4).

    4. Acute injection toxicity/pathogenicity (Harmonized Guideline 885.3200; MRID No. 501117-17). An acceptable scientific rationale was submitted by the petitioner; therefore, EPA waived acute injection toxicity/pathogenicity testing for Duddingtonia flagrans strain IAH 1297. Intratracheal pulmonary administration of the highest possible dose of Duddingtonia flagrans strain IAH 1297 did not show any sign of infection or pathogenicity (MRID No. 501117-16). Lengthy oral dosing of cattle, sheep, and horses demonstrated no effects at doses of 5-10X the label use rates (MRID No. 501117-27), and an oral dose of 5,000 mg/kg of bodyweight to female rats also demonstrated no effects (MRID No. 503887-01). Further, injection is expected to result in minimal breakdown of spores, and the relatively large size of the spores makes injection testing impractical. The lack of growth when Duddingtonia flagrans strain IAH 1297 was tested at 37°C (oral dosing) also allays the need to test infectivity and pathogenicity by the injection route. Duddingtonia flagrans strain IAH 1297 has not shown any ability to germinate or grow when mammals were exposed by various other routes, and injection of these large spores is not expected to result in infection even if possible to perform the test. Thus, EPA believes these data and information, when taken together, indicate that this fungus would not be toxic, infective, and/or pathogenic through the injection route of exposure and that further testing is not necessary. (Refs. 1 and 2).

    5. Acute dermal toxicity—rat (Harmonized Guideline 870.1200; MRID No. 501113-05). An acceptable acute dermal toxicity study conducted using a test substance containing Duddingtonia flagrans strain IAH 1297 demonstrated that the fungus was not toxic to rats when dosed at 5,000 mg/kg of bodyweight for 24 hours to a body surface area of approximately 10 percent. Following exposure, animals were observed for 14 days. All animals survived, gained weight, appeared active and healthy, and had no signs of dermal irritation throughout the study. No observable abnormalities were found in any animal at necropsy. The dermal LD50 for male and female rats combined was greater than 5,000 mg/kg of bodyweight (Toxicity Category IV). (Refs. 1 and 2).

    6. Primary dermal irritation—rabbit (Harmonized Guideline 870.2500; MRID No. 501113-07). An acceptable primary dermal irritation study conducted using a test substance containing Duddingtonia flagrans strain IAH 1297 demonstrated that the fungus was non-irritating to the skin of rabbits. No dermal erythema, edema, or irritation was noted on any animal during the study. The primary irritation index was 0.0, and all animals gained weight normally during the study (Toxicity Category IV). (Refs. 1 and 2).

    IV. Aggregate Exposure

    In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

    A. Dietary Exposure (Refs. 1 and 2)

    1. Food exposure. The proposed use of Duddingtonia flagrans strain IAH 1297 is as a feed-through product for grazing animals such as sheep, goats, cattle, horses, deer, alpacas and zoo animals. As Duddingtonia flagrans is naturally present in soils and commonly found in various plant materials, it is likely that grazing animals have natural background exposure to the fungus. No adverse effects have been reported as a result of these types of exposures. Studies performed with Duddingtonia flagrans strain IAH 1297 have not shown that this strain has the ability to germinate or grow when mammals are exposed by various routes, including the oral route. Further, no foodborne disease outbreaks or cases of mammalian toxin production from Duddingtonia flagrans have been reported. As a result, dietary exposure to Duddingtonia flagrans strain IAH 1297 through agricultural commodities is not anticipated from use of the pesticide products as the spores and/or components of the spores are unlikely to remain in the treated animals. Should Duddingtonia flagrans strain IAH 1297 be present in food, however, supporting toxicological data and information indicate that no toxicity, pathogenicity, or infectivity is likely to occur with this type of exposure resulting from the use of this microbial pesticide when applied in accordance with label directions and good agricultural practices.

    2. Drinking water exposure. Since Duddingtonia flagrans is naturally present in the environment and Duddingtonia flagrans strain IAH 1297 will be present in the feces of treated animals, exposure to surface and possibly groundwater can be expected. Water treatment processes should remove any Duddingtonia flagrans or Duddingtonia flagrans strain IAH 1297 present in these water sources, and no adverse effects have been reported from exposure to Duddingtonia flagrans through drinking water. As a result, dietary exposure to Duddingtonia flagrans strain IAH 1297 through drinking water is not anticipated from use of the pesticide products as the spores and/or components of the spores are unlikely to survive the water treatment process. Should Duddingtonia flagrans strain IAH 1297 be present in water, however, supporting toxicological data and information indicate that no toxicity, pathogenicity, or infectivity is likely to occur with this type of exposure resulting from the use of this microbial pesticide when applied in accordance with label directions and good agricultural practices.

    B. Other Non-Occupational Exposure

    The pesticide products containing Duddingtonia flagrans strain IAH 1297 are proposed for agricultural use sites and zoos. As a result, residential exposures resulting from use of these products are not anticipated. Nevertheless, Duddingtonia flagrans strain IAH 1297 was not toxic or irritating by dermal exposure and was not toxic, infective, or pathogenic by pulmonary exposure. Further, the products are mixed into feed ingredients at 2-34.6% so it is not in pure form, and the spore size is at the upper end of the respirable range so human exposures to Duddingtonia flagrans strain IAH 1297 by inhalation from contact with animal feed supplements is unlikely.

    V. Cumulative Effects From Substances With a Common Mechanism of Toxicity

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

    Duddingtonia flagrans strain IAH 1297 is not toxic and does not have a common mechanism of toxicity with other substances. Consequently, FFDCA section 408(b)(2)(D)(v) does not apply.

    VI. Determination of Safety for U.S. Population, Infants and Children A. U.S. Population

    For all of the reasons discussed previously, EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Duddingtonia flagrans strain IAH 1297. This includes all anticipated dietary exposures and all other exposures for which there is reliable information.

    B. Infants and Children

    FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure, unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. As discussed above, EPA has concluded that Duddingtonia flagrans strain IAH 1297 is not toxic, pathogenic, or infective to mammals, including infants and children. Because there are no threshold levels of concern to infants, children, and adults when Duddingtonia flagrans strain IAH 1297 is used in accordance with label directions and good agricultural practices, EPA concludes that no additional margin of safety is necessary to protect infants and children.

    VII. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    B. Revisions to Requested Tolerance Exemption

    One modification has been made to the requested tolerance exemption. EPA is changing “in or on all raw and processed agricultural commodities” to “in or on all food commodities” to align with the terminology the Agency currently uses when establishing tolerance exemptions for residues of other like active ingredients.

    VIII. Conclusions

    EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Duddingtonia flagrans strain IAH 1297. Therefore, an exemption from the requirement of a tolerance is established for residues of Duddingtonia flagrans strain IAH 1297 in or on all food commodities when used in accordance with label directions and good agricultural practices.

    IX. References 1. U.S. EPA. 2017. Duddingtonia flagrans strain IAH 1297. Memorandum from J.V. Gagliardi, Ph.D. through M.J. Perry to M. Glikes, dated October 17, 2017 (available as a “Supporting Document” within Docket ID Number EPA-HQ-OPP-2017-0296 at http://www.regulations.gov). 2. U.S. EPA. 2018. Duddingtonia flagrans strain IAH-1297 (PC Code 033000)—Human Health Risk Assessment Summary. Memorandum from M. Perry through J. Kough, Ph.D. to C. Kendrick, dated March 26, 2018 (available as a “Supporting Document” within Docket ID Number EPA-HQ-OPP-2017-0296 at http://www.regulations.gov). 3. U.S. EPA. 2014. Chapter 7 of the Label Review Manual (Precautionary Statements) (Revised July 2014). Available from https://www.epa.gov/sites/production/files/2015-03/documents/chap-07-jul-2014.pdf. 4. U.S. EPA. 2018. Duddingtonia flagrans strain IAH-1297. Memorandum from J.V. Gagliardi, Ph.D. through J.L. Kough, Ph.D. to C. Kendrick, dated March 27, 2018 (available as a “Supporting Document” within Docket ID Number EPA-HQ-OPP-2017-0296 at http://www.regulations.gov). X. Statutory and Executive Order Reviews

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

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

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

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

    XI. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: April 26, 2018. Wynne Miller, Acting Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. Add § 180.1355 to subpart D to read as follows:
    § 180.1355 Duddingtonia flagrans strain IAH 1297; exemption from the requirement of a tolerance.

    An exemption from the requirement of a tolerance is established for residues of Duddingtonia flagrans strain IAH 1297 in or on all food commodities when used in accordance with label directions and good agricultural practices.

    [FR Doc. 2018-09647 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0249; FRL-9976-60] Konjac Glucomannan; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of konjac glucomannan (CAS Reg. No. 37220-17-0) when used as an inert ingredient on growing crops only at a concentration not to exceed 1% by weight in a pesticide formulation. Technology Services Group, on behalf of, Attune Agriculture, LLC, submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of konjac glucomannan resulting from use in accordance with the terms of this exemption.

    DATES:

    This regulation is effective May 7, 2018. Objections and requests for hearings must be received on or before July 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0249, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0249 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0249, by one of the following methods:

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

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

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of September 15, 2017 (82 FR 43352) (FRL-9965-43), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11048) by Technology Services Group, on behalf of, Attune Agriculture, LLC, 10552 Philadelphia Road, White Marsh, MD 21162. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of konjac glucomannan (also referred to as konjac mannan) (CAS Reg. No. 37220-17-0) when used as an inert ingredient (thickener) in pesticide formulations applied to growing crops only at a maximum use level of 1.0%. That document referenced a summary of the petition prepared by Technology Services Group, on behalf of, Attune Agriculture, LLC, the petitioner, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing. EPA's response is discussed in Unit V.C.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

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

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by konjac glucomannan as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    Konjac glucomannan is a non-digestible polysaccharide with a large molecular weight (i.e., 200,000-2,000,000 daltons). A substance of this size would be unlikely to penetrate intact human skin or gastrointestinal tract. Because of its large molecular weight and the body's inability to digest it, it is unlikely that the body will absorb konjac glucomannan. This is supported by the studies below.

    Often in the literature, konjac flour and konjac glucomannan are used interchangeably. The European Commission defines konjac flour as the unpurified raw product from the root of the perennial plant Amorphophallus konjac, and konjac glucomannan refers to the product that has been washed and extracted using water-containing ethanol. The majority of the studies refer to the use of konjac flour as the test substance. EPA has concluded that it is appropriate to rely on those studies since the two substances are essentially the same in molecular weight and origin thus expected to present the same toxicological profile.

    Konjac glucomannan exhibits low levels of acute toxicity. Acute studies in rats and mice show oral LD50s of >2,800 mg/kg to >5,000 mg/kg. The dermal LD50 in rabbits is >2,000 mg/kg. Konjac glucomannan was not shown to be a skin irritant or dermal sensitizer and shows minimal eye irritation.

    Asthmatic responses in humans (e.g., Konjac asthma or konnyaku asthma) exposed to airborne powders produced during commercial manufacture of konjac flour from konjac tubers has been reported. It has been associated with the inhalation of dust produced during the production of konjac flour to make konnyaku, a traditional jelly-like Asian food prepared from glucomannan. An inhalation exposure study with guinea pigs demonstrated that respiratory hypersensitivity to food grade konjac flour can be induced following repeated inhalation exposures. According to a more recent study, however, the antigen in konjac flour responsible for respiratory sensitization is actually a protein and not glucomannan.

    Several repeat-dose toxicity studies conducted on Sprague-Dawley rats are available for konjac flour: A four-week dietary study, a twelve-week feeding study, an 18-month dietary study, and an 8-week oral study with pregnant cats. Two carcinogenicity studies are also available.

    A four-week dietary exposure study was conducted with Sprague-Dawley rats. Groups of four male rats were fed either 5% cellulose (control), 10% cellulose, 10% pectin or 10% konjac (~5,000 mg/kg/day) for 28 days. Compared to the control group, consumption of 10% konjac in the diet decreased the digestion and absorption of protein in the large intestine which resulted in a decrease in body weight gain. Because of the high dosing it is not certain if the effect seen is the result of excessive dosing or from the toxicity of chemical.

    In a twelve-week feeding study, groups of 12/sex, five week old Sprague-Dawley rats received the basal diet (a 1% cholesterol) or konjac meal supplementation at 2.5, 5.0 or 10% of the diet (~1,250, 2,500, or 5,000 mg/kg/day). Changes were seen on gross examination of the liver. The full study report was not available but according to the Food and Agriculture Organization/World Health Organization (FAO/WHO) Joint Expert Committee on Food Additives (JECFA) report, the author suggests the reason for this is that konjac flour binds with bile acids and depresses reabsorption in the intestines which consequently reduces the accumulation of lipids in the liver. All treated groups had reduced total cholesterol in comparison with the high-cholesterol control group. Body-weight gain was slightly but statistically significantly lower in males fed 10% refined konjac meal than in the other groups during the first eight weeks. Food intake was also reduced in this group. Therefore, the NOAEL is 5% of the diet (~2,500 mg/kg/day) with a LOAEL of 10% (~5,000 mg/kg/day) based on decreased body weight gain in males.

    An 18-month dietary study assessed groups of 15 Sprague-Dawley rats fed a basal diet or a diet with 1.0% konjac flour (~500 mg/kg/day). There was no difference in body weight gain, absolute or relative organ weights or femur weights and no evidence of treatment-related pathological changes or effects on calcium and phosphorus metabolism. Treated male rats had significantly lower serum cholesterol levels at 9 and 18 months and lower triglycerides at 3 and 9 weeks but not 12 months. In female rats, the only difference from the control was a lower triglyceride level at 18 months. The liver of treated rats had smaller more lightly stained nuclei and reduced bile duct proliferation in the portal area. Certain cells (not specified) of treated rats displayed fewer signs of senescence compared to controls. There was no evidence that 1% konjac flour in the diet (~500 mg/kg/day) was toxic to rats.

    Two groups of 15 adult pregnant British short-hair cats were fed diets containing either 2% carob gum or 2% konjac flour (0.98 to 3.08 mg/kg/day prior to parturition) for eight weeks. There were no significant changes in body weight between controls and treated animals. Biochemical and hematological parameters were reported to be within normal ranges throughout the study. Mean birth weight of kittens born to control cats was statistically significantly lower (p >0.01) than kittens born to konjac fed cats; however, the standard deviation was within the range of controls and therefore, these effects are not considered adverse. All cats in the study completed lactation and reared successfully.

    There is no evidence that konjac glucomannan suppresses or otherwise harms immune function in mammalian systems. No signs of neurotoxicity were reported in the studies of acute or repeat-dose oral exposure to konjac glucomannan.

    Genotoxicity tests of konjac flour include an Ames test, a mouse lymphoma assay, and an in vivo mouse micronucleus test. All genotoxicity assays were negative. Konjac was not mutagenic in the Ames test and did not induce mutations in cultured mouse lymphoma cells or cause clastogenicity in the in vivo micronucleus study in the presence or absence of S-9 activation.

    Konjac glucomannan is not expected to be carcinogenic. In addition to showing negative results in genotoxicity and mutagenicity tests, a 20-week and a 1-year feeding study were conducted and no evidenced of carcinogenicity was observed. In fact, the incidence of colon tumors in 1,2-dimethylhydrazine DMH treated animals was significantly reduced with konjac glocomannan consumption. Similarly, spontaneous liver tumors in C3H/He mice were inhibited by maintaining the mice on a diet containing 10% glucomannan.

    B. Toxicological Points of Departure/Levels of Concern

    No toxicological endpoint of concern has been identified for konjac glucomannan. Based on the available information as discussed in Unit IV.A., it is concluded that there is no end point of concern identified and therefore, quantitative risk assessment is not warranted.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to konjac glucomannan, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from konjac glucomannan in food as follows:

    Dietary exposure (food and drinking water) to konjac glucomannan may occur following ingestion of foods with residues from treated crops. Additional dietary exposure may result from the use of konjac glucomannan as a food additive; it has been used as a thickener, texture stabilizer, emulsifier, and gelling agent in foods and beverages, as well as agriculture and animal feed. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

    2. Dietary exposure from drinking water. Since a hazard endpoint of concern was not identified for the acute and chronic dietary assessment, a quantitative dietary exposure risk assessment for drinking water was not conducted, although exposures may be expected from use on food crops.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). Although currently, there are no uses for konjac glucomannan in products that might result in residential exposure, it is possible that some may be requested in the future. Additional non-dietary exposure may occur from use of konjac glucomannan in pharmaceutical products and cosmetics. Based on the discussion above, a quantitative residential exposure assessment for konjac glucomannan was not conducted.

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

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

    D. Safety Factor for Infants and Children

    Section 408(b)(2)(C) requires EPA to retain an additional tenfold margin of safety in the case of threshold effects to ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. As noted in Unit IV.B., there is no indication of threshold effects being caused by konjac glucomannan. Therefore, this requirement does not apply to the present analysis. Moreover, due to the lack of any toxicological endpoints of concern, EPA is conducting a qualitative assessment of konjac glucomannan, which does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

    E. Aggregate Risks and Determination of Safety

    Taking into consideration all available information on konjac glucomannan, EPA has determined that there is a reasonable certainty that no harm to any population subgroup will result from aggregate exposure to konjac glucomannan. Therefore, EPA concludes that the exemption from the requirement of a tolerance as requested by the petitioner—for residues of konjac glucomannan on growing crops when used as an inert ingredient (thickener), in pesticide formulations at a concentration not to exceed 1.0% by weight of the pesticide formulation is safe under FFDCA section 408.

    V. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of konjac glucomannan in or on any food commodities. EPA is establishing limitations on the amount of konjac glucomannan that may be used in pesticide formulations applied to growing crops. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for use on growing crops for sale or distribution that exceeds 1% by weight of konjac glucomannan.

    B. Response to Comments

    One comment was received in response to the Notice of Filing. The comment was received from a private citizen who opposed the authorization to sell any pesticide that leaves a residue on food. The Agency recognizes that some individuals believe that no residue of pesticides should be allowed. However, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute. EPA has evaluated all the available data and concluded that there is a reasonable certainty of no harm from the limited use of konjac glucomannan as inert ingredients in pesticide formulations. The commenter has not provided any information supporting a conclusion that this exemption would not be safe.

    VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for konjac glucomannan (CAS Reg. No. 37220-17-0) when used as an inert ingredient (thickener) in pesticide formulations applied to growing crops only at a concentration not to exceed 1.0% by weight of the pesticide formulation.

    VII. Statutory and Executive Order Reviews

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

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

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

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

    VIII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: April 12, 2018. Donna Davis, Acting Division Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.920, add alphabetically the inert ingredient “Konjac glucomannan (CAS Reg. No. 37220-17-0)” to the table to read as follows:
    § 180.920 Inert ingredients used pre-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Konjac glucomannan (CAS Reg. No. 37220-17-0) Not to exceed 1.0% by weight in pesticide formulation Thickener. *         *         *         *         *         *         *
    [FR Doc. 2018-09649 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 90 [DA 18-282] Modification of Rules To Codify New Procedure for Non-Federal Public Safety Entities To License Federal Interoperability Channels AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    This document adopts changes to the Commission's rules to conform them to a streamlining modification recently made by the National Telecommunications and Information Administration (NTIA). NTIA streamlined the coordination process which enables the Commission to grant licenses to non-federal public safety entities who seek to operate on forty federal government interoperability channels over which NTIA has jurisdiction.

    DATES:

    Effective June 6, 2018, except for the addition of § 90.25, which contains a new information collection that requires review by the Office of Management and Budget under the Paperwork Reduction Act of 1995. The FCC will publish a document in the Federal Register announcing the effective date of that rule section.

    FOR FURTHER INFORMATION CONTACT:

    Brian Marenco, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0838.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order, DA 18-282, released on March 22, 2018. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). The complete text of this document is also available on the Commission's website at http://www.fcc.gov.

    1. NTIA designated forty channels for interoperability communications among federal agencies and between federal agencies and non-federal entities with which federal agencies have a requirement to interoperate. A non-federal public safety entity may communicate on the federal interoperability channels for joint federal/non-federal operations, provided it first obtains a license from the Commission authorizing use of the channels.

    2. In September 2015, NTIA streamlined the process which enables non-federal agencies to obtain an FCC license to use the federal interoperability channels. Under the new process, the Statewide Interoperability Coordinator (SWIC) or state appointed official in each state is responsible for coordinating access to the federal interoperability channels by non-federal public safety entities. Each SWIC/official will sign an agreement with a federal user with a valid assignment. The agreement may specify which federal interoperability channels are available for use in a particular state or territory and establish the conditions for their use by non-federal public safety entities.

    3. Once the federal-state agreement for a given state is signed, non-federal public safety entities in that state may file an application with the Commission to license the designated federal interoperability channels under the new streamlined process. Before filing with the Commission, a non-federal public safety entity seeking to license mobile and portable units on the federal government interoperability channels must first obtain written concurrence from its SWIC/official. The non-federal agency must then include a copy of the written concurrence with its license application to the Commission.

    4. NTIA's streamlined process eliminates the need for non-federal public safety entities to obtain written certification from a federal government agency and for the Commission to refer applications for the federal interoperability channels to the Interdepartment Radio Advisory Committee's (IRAC) Frequency Assignment Subcommittee for approval.

    5. On March 22, 2018, the Public Safety and Homeland Security Bureau and the Office of Engineering and Technology, on delegated authority, jointly released an Order amending §§ 2.102(c)(4) and 90.173(c) and adopting new § 90.25 in order to conform the Commission's rules to the new streamlined process established by NTIA.

    Procedural Matters A. Paperwork Reduction Act of 1995 Analysis

    6. The requirement in new § 90.25 that non-federal public safety agencies obtain written concurrence from the SWIC/official constitutes a new information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review and public comment under section 3507(d) of the PRA.

    7. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198 (see 44 U.S.C. 3506(c)(4)), the Commission's Public Safety and Homeland Security Bureau will seek specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    B. Congressional Review Act

    8. The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties.

    Ordering Clauses

    9. Accordingly, it is ordered, pursuant to sections 4(i), 303(c) and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(c), and 332, this order is hereby adopted.

    10. It is further ordered that the rules and requirements adopted herein will become effective June 6, 2018, except for new § 90.25 that contains a new or modified information collection requirement that requires review by the OMB under the PRA. Section 90.25 will become effective after OMB review and approval, on the effective date specified in a notice that the Commission will publish in the Federal Register announcing such approval and effective date.

    11. This action is taken under delegated authority pursuant to section 155(c) of the Communications Act of 1934, as amended, 47 U.S.C. 155(c) and §§ 0.31, 0.191, 0.241, and 0.392 of the Commission's rules, 47 CFR 0.31, 0.191, 0.241, and 0.392.

    List of Subjects 47 CFR Part 2

    Radio, Telecommunications.

    47 CFR Part 90

    Administrative practice and procedure, Radio.

    Federal Communications Commission. Lisa Fowlkes, Chief, Public Safety and Homeland Security Bureau. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 90 as follows.

    PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

    2. Amend § 2.102 by revising paragraph (c) to read as follows:
    § 2.102 Assignment of frequencies.

    (c) Non-Federal stations may be authorized to use Federal frequencies in the bands above 25 MHz:

    (1) If the Commission finds, after consultations with the appropriate Federal agency or agencies, that such use is necessary for coordination of Federal and non-Federal activities. Such operations must meet the following requirements:

    (i) Non-Federal operation on Federal frequencies shall conform with the conditions agreed upon by the Commission and NTIA;

    (ii) Such operations shall be in accordance with NTIA rules governing the service to which the frequencies involved are allocated;

    (iii) Such operations shall not cause harmful interference to Federal stations and, should harmful interference result, that the interfering non-Federal operation shall immediately terminate; and

    (iv) Non-Federal operation has been certified as necessary by the Federal agency involved and this certification has been furnished, in writing, to the non-Federal licensee with which communication is required; or

    (2) Pursuant to the provisions of § 90.25 of this chapter, provided that such operations shall not cause harmful interference to Federal stations and, should harmful interference result, that the interfering non-Federal operation shall immediately terminate.

    3. Amend § 2.106 by revising pages 24 and 27 of the Table of Frequency Allocations, and by adding footnote US55 to the list of United States (US) Footnotes to read as follows:
    § 2.106 Table of Frequency Allocations. BILLING CODE 6712-01-P ER07MY18.030 ER07MY18.031 BILLING CODE 6712-01-C United States (US) Footnotes

    US55 In the bands 162.0375-173.2 MHz and 406.1-420 MHz, the FCC may authorize public safety applicants to use the 40 Federal Interoperability Channels that are designated for joint federal/non-federal operations for law enforcement, public safety, emergency response and disaster response in section 4.3.16 of the NTIA Manual, subject to the condition that that these non-Federal mobile (including portable) interoperability communications shall conform to the national plans specified therein, and in particular, shall not cause harmful interference to Federal stations. The procedure for authorizing such use is set forth in 47 CFR 90.25.

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 4. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    5. Add § 90.25 to subpart B to read as follows.
    § 90.25 Non-Federal Use of the Federal Interoperability Channels.

    The Commission may authorize non-Federal licensees to operate mobile and portable radio units on the frequencies listed below in Tables 1 and 2, provided the applicant includes with its application to the Commission, written concurrence from the Statewide Interoperability Coordinator (SWIC) or state appointed official stating that the application conforms to the agreement with a federal agency with a valid assignment from the National Telecommunications and Information Administration.

    Table 1—Law Enforcement Plans (MHz) LE VHF plan Identifier Mobile
  • transmit
  • Mobile
  • receive
  • LE UHF plan Identifier Mobile
  • transmit
  • Mobile
  • receive
  • LEA 167.0875 (S) 167.0875 LEB 414.0375 (S) 414.0375 LE1 162.0875 167.0875 LE10 418.9875 409.9875 LE2 162.2625 167.2500 LE11 419.1875 410.1875 LE3 162.8375 167.7500 LE12 419.6125 410.6125 LE4 163.2875 168.1125 LE13 414.0625 (S) 414.0625 LE5 163.4250 168.4625 LE14 414.3125 (S) 414.3125 LE6 167.2500 (S) 167.2500 LE15 414.3375 (S) 414.3375 LE7 167.7500 (S) 167.7500 LE16 409.9875 (S) 409.9875 LE8 168.1125 (S) 168.1125 LE17 410.1875 (S) 410.1875 LE9 168.4625 (S) 168.4625 LE18 410.6125 (S) 410.6125 (S)—Simplex.
    Table 2—Incident Response Plans (MHz) LE VHF Plan Identifier Mobile
  • transmit
  • Mobile
  • receive
  • LE UHF Plan Identifier Mobile
  • transmit
  • Mobile
  • receive
  • NC1 Calling 164.7125 169.5375 NC2 Calling 419.2375 410.2375 IR1 165.2500 170.0125 IR10 419.4375 410.4375 IR2 165.9625 170.4125 IR11 419.6375 410.6375 IR3 166.5750 170.6875 IR12 419.8375 410.8375 IR4 167.3250 173.0375 IR13 413.1875 (S) 413.1875 IR5 169.5375 (S) 169.5375 IR14 413.2125 (S) 413.2125 IR6 170.0125 (S) 170.0125 IR15 410.2375 (S) 410.2375 IR7 170.4125 (S) 170.4125 IR16 410.4375 (S) 410.4375 IR8 170.6875 (S) 170.6875 IR17 410.6375 (S) 410.6375 IR9 173.0375 (S) 173.0375 IR18 410.8375 (S) 410.8375 (S)—Simplex.
    6. Amend § 90.173 by revising paragraph (c) to read as follows.
    § 90.173 Policies governing the assignment of frequencies.

    (c) Frequencies assigned to Federal Government radio stations by the National Telecommunications and Information Administration may be authorized under the provisions set forth in § 2.102(c) of this chapter.

    [FR Doc. 2018-08790 Filed 5-4-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 171026999-8408-02] RIN 0648-BH36 Fisheries Off West Coast States; Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to the Biennial Management Cycle AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    Based on recommendations from the Pacific Fishery Mangement Council (Council), NMFS is issuing regulations under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to implement Amendment 4 to the Fishery Management Plan for U.S. West Coast Highly Migratory Species (HMS FMP). The intent of Amendment 4 is to bring descriptions of the management context for HMS fisheries up to date, to better describe the Council's role in the process of making stock status determinations for highly migratory species (HMS), including the Council's evaluations of the best scientific information available (BSIA), and to change the schedule of the Council's three-meeting biennial management cycle for HMS stocks. This rule updates and amends the descriptions of biennial management cycle activities in the regulations for the HMS FMP to allow the Council to shift the schedule of Council meetings for the consideration of HMS stock status updates and management recommendations in response to instances in which a stock or stocks is determined to be subject to overfishing, overfished, or both. The changes to the Council's biennial management cycle activities and the schedule are intended to better streamline international and domestic management processes for HMS. This rule is administrative in nature and is not expected to affect activities authorized under the FMP or harvest levels of HMS.

    DATES:

    This rule is effective June 6, 2018.

    ADDRESSES:

    Copies of the Amendment 4, the Regulatory Impact Review (RIR) and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2017-0138, or contact Amber Rhodes, NMFS West Coast Region, 562-980-3231, [email protected] or Heidi Taylor, NMFS West Coast Region, 562-980-4039, [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Amber Rhodes, NMFS, 562-980-3231, [email protected] or Heidi Taylor, NMFS, 562-980-4039, [email protected]

    SUPPLEMENTARY INFORMATION: Background

    In a January 23, 2018, Notice of Availability (83 FR 3108), NMFS announced that the Council submitted Amendment 4 to the Secretary of Commerce for approval, and requested comments on Amendment 4. The 60-day public comment period ended on March 26, 2018. NMFS approved Amendment 4 to the HMS FMP on April 24, 2018.

    On February 27, 2018, NMFS published a proposed rule in the Federal Register (83 FR 8414) to implement Amendment 4 by revising regulations at 50 CFR 660.709 contingent upon approval of Amendment 4. The proposed rule contains additional background information on Amendment 4. The 45-day public comment period for the proposed rule closed on April 13, 2018.

    Amendment 4 is intended to better align the Council's biennial management cycle for HMS with the timing of international stock assessments and stock status determinations for these species. The changes to the current biennial management cycle included in Amendment 4 and implemented by this rule would allow the Council to streamline domestic and international management activities, such as stock assessment and biological reference point reviews, and to better align schedules to meet statutory timelines in section 304(e) and (i) of the MSA (16 U.S.C. 1854(e) and (i)) for making recommendations for domestic regulations and international measures when stocks are determined to be overfished or subject to overfishing. Additionally, this rule would ensure that the meeting schedule is not codified in regulations, thus allowing the Council to make changes to the schedule for its meetings in the biennial management cycle, consistent with the HMS FMP, without needing to seek a change in the regulatory language. Allowing the Council to make this type of adjustment without seeking a regulatory change improves the efficiency with which future changes to the biennial management cycle can be implemented.

    Content of Regulations

    This rule amends 50 CFR 660.709 to remove a specific schedule for the Council's biennial management cycle (i.e., during June, September, and November Council meetings) from codified text and replace it with a reference to a biennial management cycle schedule specified in the FMP (i.e., during September, November, and March Council meetings under Amendment 4). Thus, future schedule changes to the Council's biennial management cycle will not require a rulemaking. The rule also provides the Council's Science and Statistical Committee greater discretion over whether to review, and make recommendations on, the estimates in the annual stock assessment and fishery evaluation report.

    NMFS did not make any changes in this final rule to the regulatory text of the proposed rule.

    Public Comments and Responses

    A total of 13 comments were received in response to either the Notice of Availability for the Amendment or the proposed rule. All comments remarked solely on issues beyond the scope of the proposed rule and lacked any specific remarks on NMFS' decision to approve, disapprove, or partially approve the amendment. Because 10 of the comments contained inappropriate content, NMFS made only three of the comments available on the Federal eRulemaking Portal (see ADDRESSES).

    Classification

    The Administrator of the West Coast Region, NMFS, determined that Amendment 4 to the HMS FMP and this final rule are necessary for the conservation and management of U.S. West Coast HMS fisheries and are consistent with the MSA and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

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

    There are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act; however, existing collection-of-information requirements associated with the HMS FMP still apply. These requirements have been approved by the Office of Management and Budget (OMB control numbers 0648-0204, 0648-0223, 0648-0361, 0648-0498). Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 1, 2018. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

    PART 660—FISHERIES OFF WEST COAST STATES Subpart K—Highly Migratory Fisheries 1. The authority citation for part 660, subpart K, continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 660.709, remove paragraphs (a)(2) and (a)(3), redesignate paragraph (a)(4) as (a)(2), and revise paragraphs (a)(1) and (d) to read as follows:
    § 660.709 Annual specifications.

    (a) * * *

    (1) Each year, the HMSMT will deliver a stock assessment and fishery evaluation report to the Council for all HMS with any necessary recommendations for harvest guidelines, quotas or other management measures to protect HMS, including updated maximum sustainable yield (MSY) and optimum yield (OY) estimates based on the best available science. The Council's Scientific and Statistical Committee may review the estimates and make a recommendation on their suitability for management. As described in the fishery management plan, the Council will periodically review these recommendations and decide whether to adopt updated numerical estimates of MSY and OY, which are then submitted as recommendations for NMFS to review as part of the management measures review process.

    (d) Irrespective of the normal review process, the Council may propose management action to protect HMS at any time. The Council may adopt a management cycle different from the one described in the fishery management plan provided that such change is made by a majority vote of the Council and a 6-month notice of the change is given.

    [FR Doc. 2018-09584 Filed 5-4-18; 8:45 am] BILLING CODE 3510-22-P
    83 88 Monday, May 7, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0867; Product Identifier 2017-CE-021-AD] RIN 2120-AA64 Airworthiness Directives; Viking Air Limited Airplanes AGENCY:

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

    ACTION:

    Supplemental notice of proposed rulemaking (SNPRM); reopening of the comment period.

    SUMMARY:

    We are revising an earlier proposal for all Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. This proposed airworthiness directive (AD) results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and address an unsafe condition on an aviation product. The MCAI describes the unsafe condition as cracking found in the wing rear spar web at the wing station where the flap outboard hinge is attached. This action revises the proposal by issuing an SNPRM that changes the compliance times to more closely match the compliance times in the MCAI. We are proposing this AD to address the unsafe condition on these products. Since these actions may impose an additional burden over those in the notice of proposed rulemaking (NPRM), we are reopening the comment period to allow the public the opportunity to comment on these changes.

    DATES:

    We must receive comments on this proposed AD by June 21, 2018.

    ADDRESSES:

    You may send comments 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: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; telephone: (North America) (800) 663-8444; fax: (250) 656-0673; email: [email protected]; internet: http://www.vikingair.com/support/service-bulletins. You may view this service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0867; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Aziz Ahmed, Aerospace Engineer, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7329; fax: (516) 794-5531; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0867; Product Identifier 2017-CE-021-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We proposed to amend 14 CFR part 39 with an NPRM for all Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, which was published in the Federal Register on September 8, 2017 (82 FR 42489). The NPRM proposed to require actions intended to address the unsafe condition for the products listed above and was based on MCAI originated by another country.

    Since the NPRM was issued, we received a comment to change the compliance time for the inspections in the NPRM to be in line with the compliance times stated in Transport Canada, which is the aviation authority for Canada, AD Number CF-2017-17, dated May 18, 2017 (referred to after this as “the MCAI”).

    Comments

    We have considered the following comment received on the NPRM.

    Request To Change the Compliance Times for the Inspections

    Adam Geber stated that the compliance times in the NPRM for the inspections specified in paragraphs (f)(1) and (f)(2) should be changed to match the compliance times stated in the MCAI AD and the related service information.

    Adam Geber requested including the 6-month compliance time from the MCAI AD into the proposed AD.

    We agree with the commenter. We have changed paragraphs (f)(1) and (f)(2) in this SNPRM from “within the next 400 hours TIS after the effective date of this AD” to “within the next 400 hours TIS after the effective date of this AD or within the next 6 months after the effective date of this AD, whichever occurs first.”

    Related Service Information Under 1 CFR Part 51

    Viking Air Limited has issued DHC-2 Beaver Service Bulletin Number: V2/0009, Revision A, dated February 10, 2017. The service information describes procedures for inspecting the left-hand and right-hand wing rear spars, the flap/aileron hinge brackets, and the exterior store support bracket for cracks, damage, and discrepancies and specifies repairing or replacing any cracked, damaged, or discrepant parts. 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 the 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

    The change described above expands the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed AD.

    Interim Action

    We consider this SNPRM interim action. The inspection report required by this SNPRM allows us to obtain better information into the nature, cause, and extent of the damage to the wing rear spars and flap/aileron hinge arm support brackets and to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

    Costs of Compliance

    We estimate that this SNPRM will affect 140 products of U.S. registry. We also estimate that it would take about 11 work-hours per product to comply with the basic inspection requirements of this SNPRM. The average labor rate is $85 per work-hour.

    Based on these figures, we estimate the basic cost of this proposed AD on U.S. operators to be $130,900, or $935 per product.

    In addition, the following is an estimate of possible necessary follow-on replacement actions. We have no way of determining the number of products that may need these actions.

    Part No. Left-hand (LH) or right-hand (RH) wing Description Number per
  • airplane
  • Parts cost Number of
  • work-hours
  • to replace
  • C2W123A Both (one per wing) Hinge bracket LH inboard (flap)/RH outboard (aileron) 2 $288 for both 12 for both. C2W124A Both (one per wing) Hinge bracket RH inboard (flap)/LH outboard (aileron) 2 $288 for both 12 for both. C2W143 Both (four per wing) Hinge bracket, flap and aileron (common part—multiple wing stations (WS)) 8 $271 for all eight 12 for all eight. C2W143A (Agricultural Option) Both (one per wing) Agricultural (optional configuration)—hinge bracket, support arm (IPC PSM 1-2-4 Figure 128, Item 15) 2 (if applies) $271 for both 12 for both. C2W63 LH Inboard spar, rear spar $277 60. C2W64 RH Inboard spar, rear spar $277 60. C2W155 Both (one per wing) Intermediate spar 2 $563 for both 60 for both. C2W65A LH Spar WS 89.16 to WS 170.16 1* $835 60. C2W66A RH Spar WS 89.16 to WS 170.16 1* $835 60. C2W67A LH Outboard spar, WS 170.16 to WS 245.75 1* $835 60. C2W68A RH Outboard spar, WS 170.16 to WS 245.75 1* $835 60. *To replace any wing spar section takes 60 work-hours.

    To replace all four wing spar sections per wing takes 240 work-hours.

    There has been no change in the Cost of Compliance section in this SNPRM.

    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation 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 AD: Viking Air Limited: Docket No. FAA-2017-0867; Product Identifier 2017-CE-021-AD. (a) Comments Due Date

    We must receive comments by June 21, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 57: Wings.

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and address an unsafe condition on an aviation product. The MCAI describes the unsafe condition as cracking found in the wing rear spar web at the wing station (WS) where the flap outboard hinge is attached. We are issuing this AD to detect and correct cracks in the wing rear spars and the flap/aileron hinge arm support brackets, which could cause these parts to fail. Failure of the wing rear spars and the flap/aileron hinge arm support brackets could result in loss of control.

    (f) Actions and Compliance

    Unless already done, do the actions in paragraphs (f)(1) through (5) of this AD:

    (1) Within the next 400 hours time-in-service (TIS) after the effective date of this AD or within the next 6 months after the effective date of this AD, whichever occurs first, visually inspect the left-hand and right-hand wing rear spar and flap/aileron hinge arm support brackets following the Accomplishment Instructions of Viking DHC-2 Beaver Service Bulletin Number: V2/0009, Revision A, dated February 10, 2017 (SB V2/0009, Revision A).

    (2) For airplanes with agricultural configuration installed (SOO Mod 2/984), within the next 400 hours TIS after the effective date of this AD or within the next 6 months after the effective date of this AD, whichever occurs first, inspect the exterior store support arm bracket at wing station (WS) 101.24 following the Accomplishment Instructions of SB V2/0009, Revision A.

    (3) If any discrepancies are found during the inspections required in paragraphs (f)(1) and (2) of this AD, before further flight, repair or replace using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada; or Viking Air Limited's Transport Canada Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (4) Within 30 days after completing the inspections required in paragraphs (f)(1) and (2) of this AD, using the Operator Reply Form on page 7 of SB V2/0009, Revision A, report the inspection results to Viking Air Limited at the address specified in paragraph (h) of this AD.

    (5) As of the effective date of this AD, do not install a wing on any airplane affected by this AD unless it has been inspected as specified in paragraph (f)(1) of this AD and paragraph (f)(2) of this AD, as applicable, and is found free of any discrepancies.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Aziz Ahmed, Aerospace Engineer, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7329; fax: (516) 794-5531; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada; or Viking Air Limited's Transport Canada Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: For any reporting requirement in this AD, a federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW, Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (h) Related Information

    Refer to MCAI Transport Canada AD Number CF-2017-17, dated May 18, 2017, for related information. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0867. For service information related to this AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; telephone: (North America) (800) 663-8444; fax: (250) 656-0673; email: [email protected]; internet: http://www.vikingair.com/support/service-bulletins. You may review copies of the referenced service information at the You may view this service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Issued in Kansas City, Missouri, on April 20, 2018. Melvin Johnson, Deputy Director, Policy and Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-08948 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1051; Airspace Docket No. 17-AGL-21] RIN 2120-AA66 Proposed Revocation of Class E Airspace; Springfield, OH AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to remove Class E airspace areas designated as an extension to a Class D surface area at Springfield-Beckley Municipal Airport, Springfield, OH. The FAA is proposing this action as a result of an airspace review, which inadvertently overlooked the removal of the associated Class E airspace extensions when the Class D airspace was removed.

    DATES:

    Comments must be received on or before June 21, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2017-1051; Airspace Docket No. 17-AGL-21, at the beginning of your comments. You may also submit 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 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 http://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:

    Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.

    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 remove Class E airspace designated as an extension to a Class D surface area no longer needed at Springfield-Beckley Municipal Airport, Springfield, OH.

    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 and be submitted in triplicate to the address listed above. Commenters 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-2017-1051/Airspace Docket No. 17-AGL-21.” 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 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 during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

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

    Background

    The FAA published a final rule in the Federal Register (80 FR 63090, October 19, 2015), removing Class D airspace at Springfield, as a result of the air traffic control tower closure. The FAA did not remove the Class E extensions to the Class D airspace with that final rule.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the Class E airspace extending upward from the surface at Springfield-Beckley Municipal Airport, Springfield, OH. Since the Class D airspace was removed with the closing of the air traffic control tower, the Class E extension airspace is also removed, as the airport no longer qualifies for controlled airspace.

    Class E airspace designations are published in paragraph 6004 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 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 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 6004 Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area. AGL OH E4 Springfield, OH [Removed] Issued in Fort Worth, Texas, on April 25, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-09402 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1187; Airspace Docket No. 17-AGL-25] RIN 2120-AA66 Proposed Amendment of Class D and Class E Airspace and Proposed Revocation of Class E Airspace; Jackson, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class D airspace, Class E airspace designated as a surface area, and Class E airspace extending upward from 700 feet above the surface, and remove Class E airspace designated as an extension to Class D or Class E surface area at Jackson County Airport-Reynolds Field, Jackson MI. The FAA is proposing this action due to the decommissioning of the Jackson VHF omnidirectional range (VOR) which provided navigation guidance for the instrument procedures to this airport. The VOR is being decommissioned as part of the VOR Minimum Operational Network (MON) Program. The name and the geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database. Additionally, this action would replace the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the associated airspace legal descriptions.

    DATES:

    Comments must be received on or before June 21, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2017-1187; Airspace Docket No. 17-AGL-25, at the beginning of your comments. You may also submit 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 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 7400.11A 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:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    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, Class E airspace designated as a surface area, and Class E airspace extending upward from 700 feet above the surface, and remove Class E airspace designated as an extension to Class D or Class E surface area at Jackson County Airport-Reynolds Field, Jackson MI to support instrument flight rules (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 and be submitted in triplicate to the address listed above. Commenters 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-2017-1187; Airspace Docket No. 17-AGL-25.” 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 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 during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by:

    Modifying the Class D airspace at Jackson County Airport-Reynolds Field, Jackson, MI, by updating the geographic coordinates of the airport to coincide with the FAA's aeronautic database and replacing the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the airspace legal description;

    Modifying the Class E airspace designated as a surface area at Jackson County Airport-Reynolds Field (formerly Jackson County-Reynolds Field) by removing all airspace extensions from the 4-mile radius in the airspace legal description, updating the name and geographic coordinates of the airport to coincide with the FAA's aeronautical database, and making an editorial change to the airspace legal description replacing “Airport/Facility Directory” with the term “Chart Supplement”;

    Removing the Class E airspace designated as an extension to Class D or Class E airspace designated as a surface area at Jackson County-Reynolds Field, MI, as it is no longer required; and

    Modifying the Class E airspace area extending upward from 700 feet above the surface to within a 6.5-mile radius (decreased from a 7-mile radius) of Jackson County Airport-Reynolds Field (formerly Jackson County-Reynolds Field), removing the Jackson VOR/DME from the airspace legal description, and updating the name and geographic coordinates to coincide with the FAA's aeronautical database.

    Airspace reconfiguration is necessary due to the decommissioning of the Jackson VOR, which provided navigation guidance for the instrument procedures to this airport, as part of the VOR MON Program and to bring the airspace in compliance with FAA Order 7400.2L, Procedures for Handling Airspace Matters. This action would enhance safety and the management of IFR operations at this airport.

    Class D and E airspace designations are published in paragraph 5000, 6002, 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, 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 5000 Class D Airspace. AGL MI D Jackson, MI [Amended] Jackson County Airport-Reynolds Field, MI (Lat. 42°15′38″ N, long. 84°27′44″ W)

    That airspace extending upward from the surface to and including 3,500 feet MSL within a 4-mile radius of Jackson County Airport-Reynolds Field. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Areas Designated as Surface Areas. AGL MI E2 Jackson, MI [Amended] Jackson County Airport-Reynolds Field, MI (Lat. 42°15′38″ N, long. 84°27′44″ W)

    That airspace extending upward from the surface to and including 3,500 feet MSL within a 4-mile radius of Jackson County Airport-Reynolds Field. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designates as an Extension to Class D and Class E Surface Areas. AGL MI E4 Jackson, MI [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL MI E5 Jackson, MI [Amended] Jackson County Airport-Reynolds Field, MI (Lat. 42°15′38″ N, long. 84°27′44″ W)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Jackson County Airport-Reynolds Field.

    Issued in Fort Worth, Texas, on April 30, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-09560 Filed 5-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA-2018-0003] RIN 1218-AB76 Revising the Beryllium Standard for General Industry AGENCY:

    Occupational Safety and Health Administration (OSHA); Department of Labor.

    ACTION:

    Proposed rule.

    SUMMARY:

    On January 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule adopting a comprehensive general industry standard for exposure to beryllium and beryllium compounds. In this proposed rule, OSHA is proposing to adopt a number of clarifying amendments to address the application of the standard to materials containing trace amounts of beryllium. OSHA believes this proposal will maintain safety and health protections for workers while reducing the burden to employers of complying with the current rule.

    DATES:

    Comments to this proposal, hearing requests, and other information must be submitted (transmitted, postmarked, or delivered) by June 6, 2018. All submissions must bear a postmark or provide other evidence of the submission date.

    ADDRESSES:

    The public can submit comments, hearing requests, and other material, identified by Docket No. OSHA-2018-0003, using any of the following methods:

    Electronically: Submit comments and attachments, as well as hearing requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions online for submitting comments. Note that this docket may include several different Federal Register notices involving active rulemakings, so it is extremely important to select the correct notice or its ID number when submitting comments for this rulemaking. After accessing “all documents and comments” in the docket (OSHA-2018-0003), check the “proposed rule” box in the column headed “Document Type,” find the document posted on the date of publication of this document, and click the “Submit a Comment” link. Additional instructions for submitting comments are available from the http://www.regulations.gov homepage.

    Facsimile: OSHA allows facsimile transmission of comments that are 10 pages or fewer in length (including attachments). Fax these documents to the OSHA Docket Office at (202) 693-1648. OSHA does not require hard copies of these documents. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), commenters must submit these attachments to the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210. These attachments must clearly identify the sender's name, the date, the subject, and the docket number (OSHA-2018-0003) so that the Docket Office can attach them to the appropriate document.

    Regular mail, express delivery, hand delivery, and messenger (courier) service: Submit comments and any additional material to the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, and messenger service. The Docket Office will accept deliveries (express delivery, hand delivery, messenger service) during the Docket Office's normal business hours, 10:00 a.m. to 3:00 p.m., ET.

    Instructions: All submissions must include the Agency's name, the title of the rulemaking (Beryllium Standard: Notice of Proposed Rulemaking), and the docket number (OSHA-2018-0003). OSHA will place comments and other material, including any personal information, in the public docket without revision, and the comments and other material will be available online at http://www.regulations.gov. Therefore, OSHA cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others), such as Social Security Numbers, birth dates, and medical data.

    Docket: To read or download comments or other material in the docket, go to http://www.regulations.gov or to the OSHA Docket Office at the above address. The electronic docket for this proposed rule established at http://www.regulations.gov contains most of the documents in the docket. However, some information (e.g., copyrighted material) is not available publicly to read or download through this website. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions.

    FOR FURTHER INFORMATION CONTACT:

    Press inquiries: Mr. Frank Meilinger, OSHA Office of Communications, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-1999; email: [email protected]

    General information and technical inquiries: William Perry or Maureen Ruskin, Directorate of Standards and Guidance, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3718, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-1950.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background II. Consideration of Comments III. Direct Final Rulemaking IV. Discussion of Proposed Changes V. Legal Considerations VI. Preliminary Economic Analysis and Regulatory Flexibility Act Certification VII. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act of 1995 VIII. Federalism IX. State Plan States X. Unfunded Mandates Reform Act I. Background

    On January 9, 2017, OSHA published its final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82 FR 2470). OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding permissible exposure limits (PELs) were at significant risk of material impairment of health, specifically chronic beryllium disease and lung cancer. OSHA concluded that the new 8-hour time-weighted average (TWA) PEL of 0.2 μg/m3 reduced this significant risk to the maximum extent feasible. Based on information submitted to the record, in the final rule OSHA issued three separate standards—general industry, shipyards, and construction. In addition to the revised PEL, the final rule established a new short-term exposure limit (STEL) of 2.0 μg/m3 over a 15-minute sampling period and an action level of 0.1 μg/m3 as an 8-hour TWA, along with a number of ancillary provisions intended to provide additional protections to employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping similar to those found in other OSHA health standards.

    This proposal would amend the text of the beryllium standard for general industry to clarify OSHA's intent with respect to certain terms in the standard, including the definition of Beryllium Work Area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. It also would clarify OSHA's intent with respect to provisions for disposal and recycling and with respect to provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight.

    This proposed rule is expected to be an Executive Order (E.O.) 13771 deregulatory action. Details on OSHA's cost/cost savings estimates for this proposed rule can be found in the rule's preliminary economic analysis. OSHA has estimated that, at a 3 percent discount rate over 10 years, there are net annual cost savings of $0.36 million per year for this proposed rule; at a discount rate of 7 percent there are net annual cost savings of $0.37 million per year. When the Department uses a perpetual time horizon, the annualized cost savings of the proposed rule is $0.37 million with 7 percent discounting. While the 2017 Beryllium Final Rule went into effect on May 20, 2017, compliance obligations do not begin until May 11, 2018.

    OSHA has preliminarily determined that the standard as modified by this rulemaking would provide equivalent protection to the standard as promulgated. Accordingly, while this rulemaking is pending, OSHA will consider compliance with the standard as modified by this proposal to be a de minimis condition and will not issue a citation or penalty to employers in compliance with the proposed standard, in accordance with the Agency's de minimis citation policy.

    II. Consideration of Comments

    OSHA requests comment on all issues related to this proposed rule. As discussed more fully below, this proposed rule is the companion document to a direct final rule published in the “Rules” section of this issue of the Federal Register. If OSHA receives no significant adverse comment on the proposal or direct final rule, OSHA will publish a Federal Register document confirming the effective date of the direct final rule and withdrawing this companion Notice of Proposed Rulemaking (NPRM). Such confirmation may include minor stylistic or technical changes to the direct final rule. For the purpose of judicial review, OSHA views the date of confirmation of the effective date of the direct final rule as the date of promulgation. If, however, OSHA receives a significant adverse comment on the direct final rule or proposal, the Agency will publish a timely withdrawal of the direct final rule and proceed with the proposed rule, which addresses the same revisions to the beryllium standard for general industry.

    III. Direct Final Rulemaking

    As noted above, in addition to publishing this NPRM, OSHA is concurrently publishing a companion direct final rule (DFR) in the Federal Register. In direct final rulemaking, an agency publishes a DFR in the Federal Register, with a statement that the rule will go into effect unless the agency receives significant adverse comment within a specified period. The agency may publish an identical concurrent NPRM. If the agency receives no significant adverse comment in response to the DFR, the rule goes into effect. OSHA typically confirms the effective date of a DFR through a separate Federal Register document. If the agency receives a significant adverse comment, the agency withdraws the DFR and treats such comment as a response to the NPRM. An agency typically uses direct final rulemaking when an agency anticipates that a rule will not be controversial.

    For purposes of the DFR, a significant adverse comment is one that explains why the amendments to OSHA's beryllium standard would be inappropriate. In determining whether a comment necessitates withdrawal of the DFR, OSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. OSHA will not consider a comment recommending an additional amendment to this rule to be a significant adverse comment unless the comment states why the DFR would be ineffective without the addition.

    The comment period for this NPRM runs concurrently with that of the DFR. OSHA will treat comments received on the NPRM as comments also regarding the companion DFR. Similarly, OSHA will consider significant adverse comment submitted to the companion DFR as comment to the NPRM. Therefore, if OSHA receives a significant adverse comment on either the DFR or this NPRM, it will withdraw the companion DFR and proceed with the NPRM. In the event OSHA withdraws the DFR because of significant adverse comment, OSHA will consider all timely comments received in response to the DFR when it continues with the NPRM. After carefully considering all comments to the DFR and the NPRM, OSHA will decide whether to publish a new final rule.

    OSHA determined that the subject of this rulemaking is suitable for direct final rulemaking. This proposed amendment to the standard is clarifying in nature and does not adversely impact the safety or health of employees. The amended standard would clarify OSHA's intent regarding certain terms in the standard, including the definition of Beryllium Work Area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination. It also would clarify OSHA's intent with respect to provisions for disposal and recycling and with respect to provisions that the Agency intends to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight. The revisions would not impose any new costs or duties. For these reasons, OSHA does not anticipate objections from the public to this rulemaking action.

    IV. Discussion of Proposed Changes

    On January 9, 2017, OSHA adopted comprehensive standards addressing exposure to beryllium and beryllium compounds in general industry, construction, and shipyards. 82 FR 2470. Beryllium “occurs naturally in rocks, soil, coal, and volcanic dust,” but can cause harm to workers through exposure in the workplace. 80 FR 47579. OSHA has thus set a general industry exposure limit for beryllium and beryllium compounds since 1971, modified most recently in 2017. See 80 FR 47578-47579; 82 FR 2471. This proposal would amend that 2017 general industry beryllium standard (codified at 29 CFR 1910.1024) to clarify its applicability to materials containing trace amounts of beryllium and to make related changes. This proposal would not affect the construction and shipyard standards, which are being addressed in a separate rulemaking. See 82 FR 29182.

    During the last rulemaking, OSHA addressed the issue of trace amounts of beryllium. In its notice of proposed rulemaking, OSHA proposed to exempt from its beryllium standard materials containing less than 0.1% beryllium by weight on the premise that workers in exempted industries are not exposed at levels of concern, 80 FR 47775, but noted evidence of high airborne exposures in some of those industries, in particular the primary aluminum production and coal-fired power generation industries. 80 FR 47776. Therefore, OSHA proposed for comment several regulatory alternatives, including an alternative that would “expand the scope of the proposed standard to also include all operations in general industry where beryllium exists only as a trace contaminant.” 80 FR 47730. After receiving comment, OSHA adopted in the final rule an alternative limiting the exemption for materials containing less than 0.1% beryllium by weight to where the employer has objective data demonstrating that employee exposure to airborne beryllium will remain below the action level (AL) of 0.1 µg/m3, measured as an 8-hour TWA, under any foreseeable conditions. 29 CFR 1910.1024(a)(2). In doing so, OSHA noted that the AL exception ensured that workers with airborne exposures of concern were covered by the standard:

    OSHA agrees with the many commenters and testimony expressing concern that materials containing trace amounts of beryllium (less than 0.1 percent by weight) can result in hazardous [airborne] exposures to beryllium. We disagree, however, with those who supported completely eliminating the exemption because this could have unintended consequences of expanding the scope to cover minute amounts of naturally occurring beryllium (Ex 1756 Tr. 55). Instead, we believe that alternative #1b—essentially as proposed by Materion and USW [United Steelworkers] and acknowledging that workers can have significant [airborne] beryllium exposures even with materials containing less than 0.1%—is the most appropriate approach. Therefore, in the final standard, it is exempting from the standard's application materials containing less than 0.1% beryllium by weight only where the employer has objective data demonstrating that employee [airborne] exposure to beryllium will remain below the action level as an 8-hour TWA under any foreseeable conditions. 82 FR 2643.

    As the regulatory history makes clear, OSHA intended to protect employees working with trace beryllium only when it caused airborne exposures of concern. OSHA did not intend for provisions aimed at protecting workers from the effects of dermal contact to apply in the case of materials containing only trace amounts of beryllium. Since the publication of the final rule, however, stakeholders have suggested that an unintended consequence of the final rule's revision of the trace exemption is that provisions designed to protect workers from dermal contact with beryllium-contaminated material could be read as applying to materials with only trace amounts of beryllium.

    This proposal would adjust the regulatory text of the general industry beryllium standard to clarify that OSHA does not intend for requirements that primarily address dermal contact to apply in processes, operations, or areas involving only materials containing less than 0.1% beryllium by weight. These proposed clarifications would be made through changes to the definition of beryllium work area; the addition of definitions of dermal contact, beryllium-contaminated, and contaminated with beryllium; clarifications of certain hygiene provisions with respect to beryllium contamination; and the clarifications to provisions for disposal and recycling. In addition, because under these changes it is possible to have a regulated area that is not a beryllium work area, this proposal would make changes to certain housekeeping provisions to ensure they apply in all regulated areas. Finally, this proposal also includes a change to the definition of “emergency”, adding detail to the definition so as to clarify the nature of the circumstances OSHA intends to be considered an emergency for the purposes of the standard.

    Definition of beryllium work area. Paragraph (b) of the beryllium standard published in January 2017 defined a beryllium work area as any work area containing a process or operation that can release beryllium where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium. This proposal would amend the definition as follows: “Beryllium work area means any work area: (1) Containing a process or operation that can release beryllium and that involves materials that contain at least 0.1% beryllium by weight; and (2) where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium.” This change would clarify OSHA's intent that many of the provisions associated with beryllium work areas should only apply to areas where there are processes or operations involving materials at least 0.1% beryllium by weight.

    Specifically, this proposed change to the beryllium work area definition would clarify OSHA's intent that the following provisions associated with beryllium work areas do not apply where processes and operations involve only materials containing trace amounts of beryllium (less than 0.1% beryllium by weight): Establishing and demarcating beryllium work areas (paragraphs (e)(1)(i) and (e)(2)(i)); including procedures for minimizing cross-contamination within (paragraph (f)(1)(i)(D)) or minimizing migration of beryllium out of (paragraph (f)(1)(i)(F)) such areas in the written exposure control plan; ensuring that at least one engineering or process control is in place to reduce beryllium exposure where airborne beryllium levels meet or exceed the AL (revised paragraph (f)(2)(ii)).1 Additionally, for areas where beryllium is only present in materials at concentrations of less than 0.1% beryllium by weight, unless that area is also a regulated area, employers are not required to ensure that all surfaces in such areas are as free as practicable of beryllium (paragraph (j)(1)(i)); ensure that all surfaces in such areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure (paragraph (j)(2)(i)); or prohibit dry sweeping or brushing for cleaning surfaces in such areas (paragraph (j)(2)(ii)).

    1 As explained in the preamble to the January 2017 rule, in industries that process or handle materials with only trace amounts of beryllium and that encounter exposures to beryllium above the action level, the PEL would “be exceeded only during operations that generate [an] excessive amount of visible airborne dust.” 82 FR 2583. OSHA therefore expects that if exposures in such a facility are below the PEL but above the AL, there is already at least one engineering or process control in place, so this requirement had no effect on primary aluminum production or coal-fired utilities. The 2017 FEA explained that this provision would only require additional controls in two job categories in two application groups, neither of which are in primary aluminum production or coal-fired utilities. (Document ID OSHA-H005C-2006-0870-2042, p. V-12).

    This proposal also includes conforming changes to maintain the January 2017 rule's requirements for housekeeping in regulated areas. Because all regulated areas were also beryllium work areas under the January 2017 beryllium standard, OSHA did not specify whether requirements for beryllium work areas should also apply in regulated areas (areas in which airborne beryllium exposure meets or exceeds the TWA PEL or STEL). This proposal's clarification to the definition of beryllium work area, however, means that it is possible for a work area to be a regulated area, but not a beryllium work area. This would occur when processes that involve only materials containing less than 0.1% beryllium by weight nevertheless create airborne beryllium exposures at or above the TWA PEL or STEL. 82 FR 2583.

    It is thus important to clarify that housekeeping (paragraph (j)) requirements continue to apply in regulated areas, even if the processes or operations in these areas involve materials with only trace beryllium. Operations or processes involving trace beryllium materials must generate extremely high dust levels in order to exceed the TWA PEL or STEL. Following the housekeeping methods required by paragraph (j) will help to protect workers against resuspension of surface beryllium accumulations from extremely dusty operations and limit workers' airborne exposure to beryllium.

    The proposal accordingly would amend paragraphs (j)(1)(i), (j)(2)(i), and (j)(2)(ii) to state explicitly that they apply to regulated areas, as follows. Paragraph (j)(1)(i), as amended, would state that “[t]he employer must maintain all surfaces in beryllium work areas and regulated areas as free as practicable of beryllium and in accordance with the written exposure control plan required under paragraph (f)(1) and the cleaning methods required under paragraph (j)(2) of this standard.” Paragraph (j)(2)(i), as amended, would state that “[t]he employer must ensure that surfaces in beryllium work areas and regulated areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure.” Paragraph (j)(2)(ii), as amended, would state that “[t]he employer must not allow dry sweeping or brushing for cleaning surfaces in beryllium work areas or regulated areas unless HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure are not safe or effective.”

    This proposal would also make conforming changes to the engineering controls requirements to ensure that the hierarchy of controls continues to apply in all regulated areas. Paragraph (f)(2) of the January 2017 beryllium standard provided that, if airborne exposures still exceed the PEL or STEL after implementing at least one control for each operation in a beryllium work area that releases airborne beryllium, the employer must implement additional or enhanced engineering and work practice controls to reduce airborne exposure to or below the limit exceeded. OSHA intended this provision to apply to all operations within the scope of the standard that can release airborne beryllium. 82 FR 2671-72. Because, under these proposed revisions, not all regulated areas would be beryllium work areas, this proposal would rearrange the regulatory text of paragraph (f)(2) to make clear that the hierarchy of controls will continue to apply in regulated areas that are not beryllium work areas.

    Definitions related to beryllium contamination. To further clarify OSHA's intent that the standard's requirements aimed at reducing the effect of dermal contact with beryllium should not apply to areas where there are no processes or operations involving materials containing at least 0.1% beryllium by weight, this proposal would define “beryllium-contaminated or contaminated with beryllium” and add those terms to certain provisions in the standard. This proposal would define those terms as follows: “Contaminated with beryllium and beryllium-contaminated mean contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight.” This proposal would add the terms to certain provisions in the standard's requirements for hygiene areas and disposal and recycling.

    The use of this proposed definition accordingly would clarify OSHA's intent that the following provisions, which apply where clothing, hair, skin, or work surfaces are beryllium-contaminated, do not apply where the contaminating material contains less than 0.1% beryllium by weight: Paragraph (h)(2)(i) and paragraph (h)(2)(ii), which require the employer to ensure that each employee removes all beryllium-contaminated personal protective clothing and equipment at the appropriate time and as specified in the written exposure control plan required by paragraph (f)(1); and paragraph (h)(2)(iii) and paragraph (h)(2)(iv), which require the employer to ensure that measures to prevent cross contamination between beryllium-contaminated personal protective clothing and equipment and street clothing are observed and that beryllium-contaminated personal protective clothing and equipment are not removed from the workplace. This proposal would also amends paragraph (h)(3)(ii), which requires the employer to ensure that beryllium is properly removed from PPE, by adding the term “beryllium-contaminated” so that this requirement would apply only where the contaminating material contains at least 0.1% beryllium by weight. The amended paragraph (h)(3)(ii) would read as follows: “The employer must ensure that beryllium is not removed from beryllium-contaminated personal protective clothing and equipment by blowing, shaking, or any other means that disperses beryllium into the air.”

    Similarly, this proposal's inclusion of the term “contaminated with beryllium” in (i)(3)(i)(B) and (i)(3)(ii)(B) clarifies OSHA's intent that those provisions, which require employers to provide and ensure use of showers where employees' hair or body parts other than hands, face, and neck can reasonably be expected to become contaminated with beryllium, would not apply where the contaminating material contains less than 0.1% beryllium by weight.

    The proposed adoption of the definition of “beryllium-contaminated” would further clarify the application of certain requirements that are meant to minimize re-entrainment of airborne beryllium and reduce the effect of dermal contact with beryllium. Specifically, it would clarify that paragraph (j)(2)(iii), which prohibits the use of compressed air for cleaning beryllium-contaminated surfaces except where used in conjunction with an appropriate ventilation system, and paragraph (j)(2)(iv), which requires the use of respiratory protection and PPE in accordance with paragraphs (g) and (h) of the standard when dry sweeping, brushing, or compressed air are used to clean beryllium-contaminated surfaces, do not apply where the contaminating material contains less than 0.1% beryllium by weight. OSHA does not expect the additional airborne exposure from dry brushing, sweeping, or using compressed air to significantly increase the levels of airborne exposure outside regulated areas when working with trace beryllium. This is because for trace beryllium to generate airborne exposures of concern, excessive amounts of dust would need to be generated, and this would not happen outside of regulated areas.

    This proposal would also add the term “beryllium-contaminated” to certain requirements pertaining to eating and drinking areas to clarify that hygiene requirements in these areas apply only where materials containing more than 0.1% beryllium by weight may contaminate such areas. Paragraph (i)(4)(i), as amended by this proposal, would state that wherever the employer allows employees to consume food or beverages at a worksite where beryllium is present, the employer must ensure that “[b]eryllium-contaminated surfaces in eating and drinking areas are as free as practicable of beryllium.” Paragraph (i)(4)(ii), as amended by this proposal, would require employers to ensure that “[n]o employees enter any eating or drinking area with beryllium-contaminated personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not disperse beryllium into the air or onto an employee's body.”

    Definition of dermal contact with beryllium. To clarify OSHA's intent that requirements of the standard associated with dermal contact with beryllium should not apply to areas where there are no processes or operations involving materials at least 0.1% beryllium by weight, this proposal would also add a definition for dermal contact with beryllium. This new definition would provide: “Dermal contact with beryllium means skin exposure to: (1) Soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight; (2) solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight; or (3) dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight.” Accordingly, the proposed definition would clarify that paragraph (h)(1)(ii), which requires an employer to provide and ensure the use of personal protective clothing and equipment where there is a reasonable expectation of dermal contact with beryllium, applies only where contact may occur with materials containing at least 0.1% beryllium by weight. This definition would also clarify that the requirements related to dermal contact in the written exposure control plan, washing facilities, medical examinations, and training provisions only apply where contact may occur with materials containing at least 0.1% beryllium by weight.

    Definition of emergency. This proposal also would clarify the definition of “emergency” in paragraph (b) of the beryllium standard published in January 2017. That paragraph defined an emergency as “any uncontrolled release of airborne beryllium.” This proposal would amend the definition as follows: “Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment, which may or does result in an uncontrolled and unintended release of airborne beryllium that presents a significant hazard.” This change would clarify the circumstances under which the provisions associated with emergencies should apply, including the requirements that employers provide and ensure employee use of respirators and that employers provide medical surveillance to employees exposed in an emergency. This proposed change is consistent with OSHA's intent as explained in the preamble to the 2017 final rule. 82 FR 2690 (“An emergency could result from equipment failure, rupture of containers, or failure of control equipment, among other causes.”). These examples show OSHA's intent to define an “emergency” as something unintended as well as uncontrolled, and including the examples in the new definition make that clear. It is also consistent with other OSHA standards, such as methylenedianiline (1910.1050), vinyl chloride (1910.1017), acrylonitrile (1910.1045), benzene (1910.1028), and ethylene oxide (1910.1047).

    Disposal and recycling. Finally, this proposal would clarify the application of the disposal and recycling provisions. Paragraph (j)(3) of the beryllium standard published in January 2017 required employers to ensure that materials designated for disposal that contain or are contaminated with beryllium are disposed of in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of the standard. It also required that materials designated for recycling which contain or are contaminated with beryllium are cleaned to be as free as practicable of surface beryllium contamination and labeled in accordance with paragraph (m)(3) of the standard, or placed in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of the standard. These provisions were designed to protect workers from dermal contact with beryllium dust generated during processing, where there is a risk of beryllium sensitization. See 82 FR 2694, 2695. This proposal accordingly would limit those requirements to “materials that contain beryllium in concentrations of 0.1 percent by weight or more or are contaminated with beryllium,” consistent with OSHA's intention that provisions aimed at protecting workers from the effects of dermal contact do not apply in the case of materials containing only trace amounts of beryllium The hazard communication standard would continue to apply according to its terms. See 29 CFR 1910.1200.

    V. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970) (“OSH Act”; 29 U.S.C. 651 et seq.) is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 655(b), 658. A safety or health standard is a standard that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate when a significant risk of material harm exists in the workplace and the standard would substantially reduce or eliminate that workplace risk. See Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980) (plurality opinion).

    OSHA need not make additional findings on risk for this proposal. As discussed above, this proposal would not diminish the employee protections put into place by the standard being amended. And because OSHA previously determined that the beryllium standard substantially reduces a significant risk (82 FR 2545-52), it is unnecessary for the Agency to make additional findings on risk for the minor changes and clarifications proposed by this rulemaking. See, e.g., Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the argument that OSHA must “find that each and every aspect of its standard eliminates a significant risk.”).

    OSHA has determined that these minor changes and clarifications are technologically and economically feasible. All OSHA standards must be both technologically and economically feasible. See United Steelworkers v. Marshall, 647 F.2d 1189, 1264 (DC Cir. 1980) (“Lead I”). The Supreme Court has defined feasibility as “capable of being done.” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (“Cotton Dust”). Courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, “within the limits of the best available evidence . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the PEL in most of its operations.” Lead I, 647 F.2d at 1272. With respect to economic feasibility, courts have held that “a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.” Id. at 1265 (internal quotation marks and citations omitted). In the final economic analysis (FEA) for the 2017 beryllium rule, OSHA concluded that the rule was economically and technologically feasible. OSHA has preliminarily determined that this proposal is also economically and technologically feasible, because it does not impose any new requirements or costs.

    VI. Preliminary Economic Analysis and Regulatory Flexibility Act Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

    This proposal is not an “economically significant regulatory action” under Executive Order 12866, or a “major rule” under the Congressional Review Act (5 U.S.C. 801 et seq.), and its impacts do not trigger the analytical requirements of UMRA. Neither the benefits nor the costs of this proposal would exceed $100 million in any given year. This proposal would, however, result in a net cost savings for employers in primary aluminum production and coal-fired utilities, which are the only industries in General Industry covered by the 2017 Beryllium Final Rule that OSHA identified with operations involving materials containing only trace beryllium (less than 0.1% beryllium by weight).

    Several calculations illustrate the expected cost savings. At a discount rate of 3 percent, this proposal would yield annualized cost savings of $0.36 million per year for 10 years. At a discount rate of 7 percent, this proposal would yield an annualized cost savings of $0.37 million per year for 10 years. These net cost savings amount to approximately 0.6 percent of the original estimated cost of the 2017 Beryllium Final Rule for General Industry at discount rates of either 3 or 7 percent; to approximately 5.3 percent of the original estimated cost of the 2017 Beryllium Final Rule for primary aluminum production and coal-fired utilities only at a discount rate of 3 percent and 5.2 percent of the original estimated cost of the 2017 Beryllium Final Rule for primary aluminum production and coal-fired utilities only at a discount rate of 7 percent.2 Under a perpetual time horizon, the annualized cost savings of this proposal is $0.37 million at a discount rate of 7 percent.

    2 The original estimated cost of the 2017 beryllium final rule for General Industry, and separately for primary aluminum production and coal-fired utilities, was updated to 2017 dollars and additionally adjusted and corrected, as subsequently explained in the text.

    1. Changes to the Baseline: Updating to 2017 Dollars and Removing Familiarization Costs

    Because baseline costs typically reflect the costs of compliance without the changes set forth in an agency's action—in this case, the proposal— OSHA has revised the baseline costs, as displayed in the FEA in support of the beryllium standard of January 9, 2017, in two ways. First, OSHA updated the projected costs for general industry contained in the FEA that accompanied the rule from 2015 to 2017 dollars, using the latest Occupational Employment Statistics (OES) wage data (for 2016) and inflating them to 2017 dollars. Second, OSHA excluded certain familiarization costs, included in the cost estimates developed in the beryllium FEA for the 2017 Beryllium Final Rule, because OSHA expects that those costs have already been incurred by affected employers. Thus, the baseline costs for this Preliminary Economic Analysis (PEA) are the projected costs from the 2017 FEA, updated to 2017 dollars, less familiarization costs in the 2017 beryllium final rule (but including some new familiarization costs for employers to become familiar with the revised provisions). Throughout this analysis of costs and cost savings, the context is limited to employers in primary aluminum production and coal-fired utilities.

    2. Discussion of Overhead Costs

    As in the 2017 FEA, OSHA has not accounted for overhead labor costs in its analysis of the cost savings for this proposal due to concerns about consistency. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,3 and government contractors have been reported to use an average of 77 percent.4 Some overhead costs, such as advertising and marketing, may be more closely correlated with output than with labor. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but may change substantially with the addition of 100 employees. If an employer is able to rearrange current employees' duties to implement a rule, then the marginal share of overhead costs, such as rent, insurance, and major office equipment (e.g., computers, printers, copiers) would be very difficult to measure with accuracy.

    3 See Grant Thornton LLP. 2015 Government Contractor Survey (Document ID OSHA-H005C-2006-0870-2153). The application of this overhead rate was based on an approach used by the Environmental Protection Agency, as described in EPA's “Wage Rates for Economic Analyses of the Toxics Release Inventory Program,” June 10, 2002. This analysis itself was based on a survey of several large chemical manufacturing plants: Heiden Associates, Final Report: A Study of Industry Compliance Costs Under the Final Comprehensive Assessment Information Rule, Prepared for the Chemical Manufacturers Association, December 14, 1989.

    4 For further examples of overhead cost estimates, please see the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.

    If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this proposal would increase to approximately $0.39 million per year, at discount rates of either 3 percent or 7 percent.5 The addition of 17 percent overhead on base wages would therefore increase cost savings by approximately 7 percent above the primary estimate at either discount rate.

    5 OSHA used an overhead rate of 17 percent on base wages in a sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in support of the March 25, 2016 final respirable crystalline silica standards (81 FR 16286) and in the PEA in support of the June 27, 2017 proposed beryllium standards in construction and shipyard sectors (82 FR 29201).

    3. Cost Impact of the Changes to the Standard

    OSHA preliminarily estimates a net cost savings from this proposal for employers at primary aluminum production and coal-fired utilities, which again are the only two industries identified in the 2017 FEA as having costs associated with exposure to trace beryllium materials.6 Annualizing the present value of net cost savings over ten years, the result is an annualized net cost savings of $0.36 million per year at a discount rate of 3 percent, or $0.37 million per year at a discount rate of 7 percent. When the Department uses a perpetual time horizon, the annualized net cost savings of this proposal is $0.37 million at a discount rate of 7 percent.

    6 As noted in Section IV of this preamble, coverage of dermal contact with trace beryllium materials was an unintended consequence of OSHA's decision to cover airborne exposures to beryllium above the action level caused by operations that generate excessive amounts of dust from trace beryllium materials. Likewise, in the 2017 FEA supporting OSHA's Beryllium Final Rule, through an oversight, OSHA made no distinction between trace and non-trace beryllium materials when determining the cost of requirements triggered by dermal contact with beryllium. The cost savings generated by this PEA are a result of correcting these oversights.

    The undiscounted cost savings by provision and year are presented below in Table 1, and the cost savings by provision and discount rate are shown below in Tables 2 and 3. As described elsewhere in this document, the cost savings described in this PEA reflect savings only for provisions covered by the changes in this proposal as well as added familiarization costs. OSHA estimated no cost savings for the PEL, respiratory protection, exposure assessment, regulated areas, medical surveillance, medical removal protection, written exposure control plan, or training provisions because the proposal would make no changes of substance to those provisions.

    a. Beryllium work areas. OSHA is proposing to limit the definition of “beryllium work area” to any work area containing a process or operation “that involves materials that contain at least 0.1% beryllium by weight. . . .” OSHA has preliminarily determined that affected establishments in primary aluminum production and coal-fired utilities would thus no longer need to designate and demarcate beryllium work areas because their materials would not meet that threshold outside of the “regulated areas” in primary aluminum production where employee exposures to airborne beryllium would exceed the PEL. In its previous economic analysis, OSHA had estimated that each of the establishments in these categories required beryllium work areas in addition to “regulated areas,” which were costed separately. The removal of these beryllium work area designations results in an annualized cost savings of $12,913 using a 3 percent discount rate and $15,682 using a 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    b. Protective work clothing and equipment. OSHA is recognizing no cost savings in this proposal for the elimination of PPE requirements associated with dermal contact in coal-fired utilities. In its 2017 FEA, OSHA listed the PPE compliance rate for utility workers at coal-fired utilities at 75 percent and therefore estimated PPE costs for the residual 25 percent of utility workers in the industry (where airborne exposures exceed the PEL or STEL or where there is dermal contact with beryllium). But upon further review, OSHA has preliminarily determined that it should not have included those costs because affected employers in coal-fired utilities were already required to wear PPE under 29 CFR 1910.1018(j) to prevent skin and eye irritation from exposure to trace inorganic arsenic found in coal ash. As OSHA noted in its technological feasibility analysis, inorganic arsenic is often found in coal fly ash in “concentrations 10 to 1,000 times greater than beryllium,” fly ash is the primary source of beryllium exposure for employees in coal-fired utilities, and employers in this application group indicated that they were already following a majority of the provisions of the rule to comply with OSHA requirements for other hazardous substances, such as arsenic (p. IV-652). Thus, in all of the areas within a facility in which employees are likely to be exposed to beryllium, they are also likely to be exposed to concentrations of arsenic significantly high so as to trigger the arsenic PPE requirements. Accordingly, coal-fired utility compliance rates with the PPE requirement for affected workers should have been 100 percent in the prior FEA, and no costs for PPE for these workers should have been included in OSHA's cost estimates. Because OSHA should not have included new beryllium PPE costs for this group, OSHA is recognizing no cost savings in this proposal for the elimination of PPE requirements associated with dermal contact in coal-fired utilities.

    There are, however, some small PPE cost savings for primary aluminum production. The January 2017 rule requires employers to provide PPE in two situations: (1) Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; and (2) where there is a reasonable expectation of dermal contact with beryllium. 29 CFR 1910.1024(h)(1). It is the second of these two situations which OSHA believes will trigger cost savings. Because this proposal would clarify that “dermal contact with beryllium” does not include contact with beryllium in concentrations less than 0.1% beryllium by weight, gloves and other PPE requirements would be triggered by a reasonable expectation of dermal contact only with materials containing more than 0.1% beryllium by weight. In primary aluminum production, there is no dermal contact with materials containing beryllium above this threshold. As a result, the Agency has preliminarily determined that in primary aluminum production, additional PPE is only necessary for workers exposed over the PEL. This change results in an annualized cost savings for employers in primary aluminum production of $35,023 using a 3 or 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    c. Hygiene areas and practices. The proposed adoption of a definition for “contaminated with beryllium” would also reduce the costs of complying with the Hygiene Areas and Practices provision in primary aluminum production (the costs for coal-fired utilities would not be affected). The 2017 Final Beryllium Rule requires employers to provide showers where both of two conditions are met:

    (A) Airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; and

    (B) Beryllium can reasonably be expected to contaminate employees' hair or body parts other than hands, face, and neck.

    29 CFR 1910.1024(i)(3)(i). By proposing to revise (B) to incorporate the newly defined term “contaminated with beryllium,” the condition in paragraph (B) would not be met in primary aluminum production because no employees in this application group can reasonably be expected to become “contaminated with beryllium.” Thus, the beryllium standard would not require employers in this application group to provide showers. Similarly, employers need not provide the estimated lower-cost alternative of head coverings, discussed in the 2017 FEA.7 Removing the cost of head coverings for workers in this application group results in an annualized cost savings for employers in primary aluminum production of $415 using a 3 or 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3.

    7 In the previous FEA, OSHA had included costs for head coverings in lieu of showers, reasoning that employees could avoid the need for showers because the head coverings and other PPE would prevent their hair or body parts from becoming contaminated with beryllium.

    d. Housekeeping. Similar to the above discussion about PPE in coal-fired utilities, OSHA is recognizing no cost savings in this proposal for coal-fired utilities as a result of the modification of the housekeeping requirements. In the FEA in support of 2017 Beryllium Final Rule, the Agency listed the housekeeping compliance rate for affected workers at coal-fired utilities at 75 percent and therefore estimated housekeeping costs for the residual 25 percent of utility workers in a beryllium work area. But upon further review, OSHA has preliminarily determined that affected employers in coal-fired utilities were already required to perform comparable housekeeping duties under 29 CFR 1910.1018(k) to prevent accumulations of inorganic arsenic found in coal ash. Accordingly, coal-fired utility compliance rates with the housekeeping requirements for affected workers should have been 100 percent in the prior FEA, and no costs for housekeeping for these workers should have been included in OSHA's cost estimates. Consequently, OSHA is recognizing no cost savings in this proposal for coal-fired utilities as a result of the modification of the housekeeping requirements.

    The proposed rule clarification also means that employers in primary aluminum production facilities would typically only be required to comply with the beryllium housekeeping provisions in “regulated areas,” which for cost purposes OSHA identified as employees exposed over the PEL in its exposure profile. There are several exceptions, none of which have a quantifiable impact on costs: employers in this industry would still need to follow the housekeeping requirements when cleaning up spills and emergency releases of beryllium (paragraph (j)(1)(ii)), handling and maintaining cleaning equipment (paragraph (j)(2)(v)), and when necessary to reduce some workers exposures below the PEL (serving as an engineering control to prevent over-exposure to beryllium within regulated areas or the need for regulated areas). OSHA did not identify separate costs in its prior FEA for this use of housekeeping as a form of engineering control and does not do so here. Thus, for cost calculation purposes in this new PEA, OSHA removed housekeeping costs for all employees exposed below the PEL in its exposure profile. This proposed change results in an annualized cost savings for employers in primary aluminum production of $323,664 using a 3 percent discount rate and $330,324 using a 7 percent discount rate. Annualized costs by provision and discount rate can be seen below in Tables 2 and 3. OSHA believes that these estimated cost savings might be slightly overstated to the extent that some housekeeping outside of the regulated areas would still be needed to perform an engineering-control function in some facilities, but the Agency is unable to quantify them now because of the variability among facilities and controls that employers may implement to comply with the standard.

    e. Additional familiarization. In the FEA in support of OSHA's 2017 Beryllium Final Rule, the Agency determined that employers would need to spend time familiarizing themselves with the rule and allocated 4, 8, and 40 hours, depending on establishment size (fewer than 20 employees, between 20 and 499 employees, and 500 or more employees, respectively). OSHA has similarly preliminarily determined that establishments would need to spend time familiarizing themselves with this proposal. As the affected provisions in this proposal are only a fraction of all the provisions in the 2017 final rule and would not require any new actions on the part of employers, the Agency has estimated familiarization time of 2, 4, and 20 hours per employer, depending on establishment size, for a supervisor to review the changes to the beryllium rule reflected in this proposal. This results in an annualized cost of $9,404 using a 3 percent discount rate and $11,421 using a 7 percent discount rate. Annualized costs by provision and discount rate—3 and 7 percent—can be seen below in Tables 2 and 3, respectively.

    f. Unchanged provisions. As discussed earlier, this proposal would primarily serve to clarify OSHA's intent with respect to certain terms and requirements in OSHA's 2017 beryllium general industry standard. These proposed changes largely deal with clarifying the application of various requirements to trace beryllium. The triggers for most provisions in the standard—the PEL, respiratory protection, exposure assessment, regulated areas, medical surveillance, medical removal protection, written exposure control plan, and training provisions 8 —are determined by factors other than beryllium concentration and would be unchanged by this proposal. Similarly, the revised definition of “emergency” in this proposal would not affect the costs estimated for the other provisions in the standard.

    8 While the proposed changes in the standard do not mandate any additional employee training, OSHA notes that it had previously accounted for costs of annual re-training required by the standard (Document ID OSHA-H005C-2006-0870-2042, p. V-221).

    4. Economic and Technological Feasibility

    In the FEA for the 2017 beryllium standard, OSHA concluded that the rule was economically and technologically feasible. This proposal would not impose any new requirements and has the net impact of removing a small amount of cost, so OSHA has preliminarily determined that this proposed rule is also economically and technologically feasible.

    5. Effects on Benefits

    This proposal would clarify aspects of the 2017 general industry beryllium standard to address unintended consequences regarding the applicability of provisions designed to protect workers from dermal contact with beryllium-containing materials and trace amounts of beryllium. This proposal would make clear that OSHA did not, and does not, intend to apply the provisions aimed at protecting workers from the effects of dermal contact to industries that only work with beryllium in trace amounts where there is limited or no airborne exposure. In the prior FEA, OSHA did not identify any quantifiable benefits from avoiding beryllium sensitization from dermal contact (see discussion at p. VII-16 through VII-18). Thus, the revisions in this proposal, which are focused on dermal contact, would not have any impact on OSHA's previous benefit estimates.

    6. Regulatory Flexibility Act Certification

    This proposal would result in cost savings for affected small entities, and those savings fall below levels that could be said to have a significant positive economic impact on a substantial number of small entities.9 Therefore, OSHA preliminarily certifies that this proposal would not have a significant impact on a substantial number of small entities.

    9 OSHA investigated whether the projected cost savings would exceed 1 percent of revenues or 5 percent of profits for small entities and very small entities for every industry. To preliminarily determine if this was the case, OSHA returned to its original regulatory flexibility analysis (in the 2017 FEA) for small entities and very small entities. OSHA found that the cost savings of this proposal are such a small percentage of revenues and profits for every affected industry that OSHA's criteria would not be exceeded for any industry.

    Table 1—Total Undiscounted Net Cost Savings of the Proposed Beryllium Standard by Year [2017 Dollars] Application Group Year 1 2 3 4 5 6 7 8 9 10 Aluminum Production $613,367 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 $328,053 Coal Fired Utilities 9,461 0 0 0 0 0 0 0 0 0 Total 622,828 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053 328,053 Table 2—Annualized Net Cost Savings of Program Requirements for Industries Affected by the Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry [In 2017 dollars using a 3 percent discount rate] Application group/NAICS Industry Rule familiarization Exposure assessment Regulated areas Beryllium work areas Medical surveillance Medical
  • removal
  • provision
  • Written
  • exposure
  • control plan
  • Protective work
  • clothing &
  • equipment
  • Hygiene areas and practices Housekeeping Training Total
  • program costs
  • Aluminum Production 331313 Alumina Refining and Primary Aluminum Production −$240 $0 $0 $2,639 $0 $0 $0 $35,023 $415 $323,664 $0 $361,500 Coal Fired Utilities 221112 Fossil Fuel Electric Power Generation −6,209 0 0 8,087 0 0 0 0 0 0 0 1,878 311221 Wet Corn Milling −282 0 0 260 0 0 0 0 0 0 0 −22 311313 Beet Sugar Manufacturing −353 0 0 303 0 0 0 0 0 0 0 −49 311942 Spice and Extract Manufacturing −41 0 0 43 0 0 0 0 0 0 0 2 312120 Breweries −54 0 0 43 0 0 0 0 0 0 0 −11 321219 Reconstituted Wood Product Manufacturing −20 0 0 22 0 0 0 0 0 0 0 2 322110 Pulp Mills −32 0 0 22 0 0 0 0 0 0 0 −10 322121 Paper (except Newsprint) Mills −437 0 0 238 0 0 0 0 0 0 0 −199 322122 Newsprint Mills −705 0 0 519 0 0 0 0 0 0 0 −186 322130 Paperboard Mills −447 0 0 346 0 0 0 0 0 0 0 −101 325211 Plastics Material and Resin Manufacturing −85 0 0 87 0 0 0 0 0 0 0 2 325611 Soap and Other Detergent Manufacturing −23 0 0 22 0 0 0 0 0 0 0 −1 327310 Cement Manufacturing −39 0 0 43 0 0 0 0 0 0 0 4 333111b Farm Machinery and Equipment Manufacturing −24 0 0 22 0 0 0 0 0 0 0 −2 336510b Railroad Rolling Stock Manufacturing −26 0 0 22 0 0 0 0 0 0 0 −4 611310 Colleges, Universities, and Professional Schools −387 0 0 195 0 0 0 0 0 0 0 −193 Total: General Industry Subtotal −9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610 Construction Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Maritime Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Total, All Industries −9,404 0 0 12,913 0 0 0 35,023 415 323,664 0 362,610
    Table 3—Annualized Net Cost Savings of Program Requirements for Industries Affected by the Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry [In 2017 dollars using a 7 percent discount rate] Application group/NAICS Industry Rule familiarization Exposure assessment Regulated areas Beryllium work areas Medical surveillance Medical
  • removal
  • provision
  • Written
  • exposure
  • control plan
  • Protective work
  • clothing &
  • equipment
  • Hygiene areas and practices Housekeeping Training Total
  • program costs
  • Aluminum Production 331313 Alumina Refining and Primary Aluminum Production −$291 $0 $0 $3,205 $0 $0 $0 $35,023 $415 $330,324 $0 $368,675 Coal Fired Utilities 221112 Fossil Fuel Electric Power Generation −7,541 0 0 9,822 0 0 0 0 0 0 0 2,281 311221 Wet Corn Milling −342 0 0 315 0 0 0 0 0 0 0 −27 311313 Beet Sugar Manufacturing −428 0 0 368 0 0 0 0 0 0 0 −60 311942 Spice and Extract Manufacturing −50 0 0 53 0 0 0 0 0 0 0 3 312120 Breweries −66 0 0 53 0 0 0 0 0 0 0 −13 321219 Reconstituted Wood Product Manufacturing −24 0 0 26 0 0 0 0 0 0 0 3 322110 Pulp Mills −39 0 0 26 0 0 0 0 0 0 0 −12 322121 Paper (except Newsprint) Mills −531 0 0 289 0 0 0 0 0 0 0 −242 322122 Newsprint Mills −856 0 0 631 0 0 0 0 0 0 0 −225 322130 Paperboard Mills −543 0 0 421 0 0 0 0 0 0 0 −123 325211 Plastics Material and Resin Manufacturing −103 0 0 105 0 0 0 0 0 0 0 2 325611 Soap and Other Detergent Manufacturing −28 0 0 26 0 0 0 0 0 0 0 −2 327310 Cement Manufacturing −48 0 0 53 0 0 0 0 0 0 0 5 333111b Farm Machinery and Equipment Manufacturing −29 0 0 26 0 0 0 0 0 0 0 −3 336510b Railroad Rolling Stock Manufacturing −31 0 0 26 0 0 0 0 0 0 0 −5 611310 Colleges, Universities, and Professional Schools −471 0 0 237 0 0 0 0 0 0 0 −234 Total: General Industry Subtotal −11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022 Construction Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Maritime Subtotal 0 0 0 0 0 0 0 0 0 0 0 0 Total, All Industries −11,421 0 0 15,682 0 0 0 35,023 415 330,324 0 370,022
    VII. OMB Review Under the Paperwork Reduction Act of 1995

    This proposal contains no information collection requirements subject to OMB approval under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations at 5 CFR part 1320. The PRA defines a collection of information as the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format. See 44 U.S.C. 3502(3)(A). While not affected by this rulemaking, the Department has cleared information collections related to occupational exposure to beryllium standards—general industry, 29 CFR 1910.1024; construction, 29 CFR 1926.1124; and shipyards, 29 CFR 1915.1024—under control number 1218-0267. The existing approved information collections are unchanged by this rulemaking. The Department welcomes comments on this determination.

    VIII. Federalism

    OSHA reviewed this proposal in accordance with the Executive Order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional and statutory authority exists and the problem is national in scope. E.O. 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption is to be limited to the extent possible.

    Under Section 18 of the OSH Act, 29 U.S.C. 651 et seq., Congress expressly provides that States may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards; States that obtain Federal approval for such a plan are referred to as “State Plan States” (29 U.S.C. 667). Occupational safety and health standards developed by State Plan States must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State Plan States are free to develop and enforce under State law their own requirements for safety and health standards.

    This proposal complies with E.O. 13132. In States without OSHA approved State Plans, Congress expressly provides for OSHA standards to preempt State occupational safety and health standards in areas addressed by the Federal standards. In these States, this proposal would limit State policy options in the same manner as every standard promulgated by OSHA. In States with OSHA approved State Plans, this rulemaking would not significantly limit State policy options.

    IX. State Plan States

    When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the 28 States and U.S. Territories with their own OSHA approved occupational safety and health plans (“State Plan States”) must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing State standard covering this area is “at least as effective” as the new Federal standard or amendment. 29 CFR 1953.5(a). The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within six months of the promulgation date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plan States are not required to amend their standards, although the Agency may encourage them to do so. The 28 States and U.S. Territories with OSHA approved occupational safety and health plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming; Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands have OSHA approved State Plans that apply to State and local government employees only.

    This proposal would clarify requirements and address the unintended consequences associated with provisions intended to address the effects of dermal contact with beryllium as applied to trace beryllium. It would impose no new requirements. Therefore, no new State standards would be required beyond those already required by the promulgation of the January 2017 beryllium standard for general industry. State-Plan States may nonetheless choose to conform to these proposed revisions.

    X. Unfunded Mandates Reform Act

    OSHA reviewed this proposal according to the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501 et seq.) and Executive Order 12875 (58 FR 58093). As discussed above in Section VI (“Economic Analysis and Regulatory Flexibility Certification”) of this preamble, the Agency preliminarily determined that this proposal would not impose significant additional costs on any private- or public-sector entity. Accordingly, this proposal would not require significant additional expenditures by either public or private employers.

    As noted above under Section IX (“State-Plan States”), the Agency's standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this proposal does not meet the definition of a “Federal intergovernmental mandate” (see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency certifies that this proposal would not mandate that State, local, or Tribal governments adopt new, unfunded regulatory obligations. Further, OSHA concludes that the rule would not impose a Federal mandate on the private sector in excess of $100 million (adjusted annually for inflation) in expenditures in any one year.

    List of Subjects in 29 CFR Part 1910

    Beryllium, General industry, Health, Occupational safety and health.

    Signed at Washington, DC, on April 27, 2018. Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health. Proposed Amendments to Standards

    For the reasons stated in the preamble, OSHA proposes to amend 29 CFR part 1910 as follows:

    PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS Subpart Z—Toxic and Hazardous Substances 1. The authority section for subpart Z of part 1910 continues to read as follows: Authority:

    29 U.S.C. 653, 655, 657) Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), 29 CFR part 1911; and 5 U.S.C. 553, as applicable.

    Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat. 1901.

    Section 1910.1201 also issued under 49 U.S.C. 5101 et seq.

    2. Amend § 1910.1024 as follows: a. Revise the definition of “Beryllium work area” in paragraph (b); b. Add definitions for “Contaminated with beryllium and beryllium-contaminated” and “Dermal contact with beryllium” in alphabetical order in paragraph (b); c. Revise the definition of “Emergency” in paragraph (b); d. Revise paragraph (f)(2); e. Revise paragraph (h)(3)(ii); f. Revise paragraphs (i)(3)(i)(B), (i)(3)(ii)(B), (i)(4)(i) and (ii); and g. Revise paragraphs (j)(1)(i), (j)(2)(i) and (ii), and (j)(3).

    The revisions and additions read as follows:

    § 1910.1024 Beryllium.

    (b) * * *

    Beryllium work area means any work area:

    (i) Containing a process or operation that can release beryllium and that involves material that contains at least 0.1 percent beryllium by weight; and

    (ii) Where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium.

    Contaminated with beryllium and beryllium-contaminated mean contaminated with dust, fumes, mists, or solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight.

    Dermal contact with beryllium means skin exposure to:

    (i) Soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight;

    (ii) Solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight; or

    (iii) Dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight.

    Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment, which may or does result in an uncontrolled and unintended release of airborne beryllium that presents a significant hazard.

    (f) * * *

    (2) Engineering and work practice controls. (i) The employer must use engineering and work practice controls to reduce and maintain employee airborne exposure to beryllium to or below the PEL and STEL, unless the employer can demonstrate that such controls are not feasible. Wherever the employer demonstrates that it is not feasible to reduce airborne exposure to or below the PELs with engineering and work practice controls, the employer must implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls using respiratory protection in accordance with paragraph (g) of this standard.

    (ii) For each operation in a beryllium work area that releases airborne beryllium, the employer must ensure that at least one of the following is in place to reduce airborne exposure:

    (A) Material and/or process substitution;

    (B) Isolation, such as ventilated partial or full enclosures;

    (C) Local exhaust ventilation, such as at the points of operation, material handling, and transfer; or

    (D) Process control, such as wet methods and automation.

    (iii) An employer is exempt from using the controls listed in paragraph (f)(2)(ii) of this standard to the extent that:

    (A) The employer can establish that such controls are not feasible; or

    (B) The employer can demonstrate that airborne exposure is below the action level, using no fewer than two representative personal breathing zone samples taken at least 7 days apart, for each affected operation.

    (h) * * *

    (3) * * *

    (ii) The employer must ensure that beryllium is not removed from beryllium-contaminated personal protective clothing and equipment by blowing, shaking, or any other means that disperses beryllium into the air.

    (i) * * *

    (3) * * *

    (i) * * *

    (B) Employee's hair or body parts other than hands, face, and neck can reasonably be expected to become contaminated with beryllium.

    (ii) * * *

    (B) The employee's hair or body parts other than hands, face, and neck could reasonably have become contaminated with beryllium.

    (4) * * *

    (i) Beryllium-contaminated surfaces in eating and drinking areas are as free as practicable of beryllium;

    (ii) No employees enter any eating or drinking area with beryllium-contaminated personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not disperse beryllium into the air or onto an employee's body; and

    (j) * * *

    (1) * * *

    (i) The employer must maintain all surfaces in beryllium work areas and regulated areas as free as practicable of beryllium and in accordance with the written exposure control plan required under paragraph (f)(1) and the cleaning methods required under paragraph (j)(2) of this standard; and

    (2) * * *

    (i) The employer must ensure that surfaces in beryllium work areas and regulated areas are cleaned by HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure.

    (ii) The employer must not allow dry sweeping or brushing for cleaning surfaces in beryllium work areas or regulated areas unless HEPA-filtered vacuuming or other methods that minimize the likelihood and level of airborne exposure are not safe or effective.

    (3) Disposal and recycling. For materials that contain beryllium in concentrations of 0.1 percent by weight or more or are contaminated with beryllium, the employer must ensure that:

    (i) Materials designated for disposal are disposed of in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of this standard; and

    (ii) Materials designated for recycling are cleaned to be as free as practicable of surface beryllium contamination and labeled in accordance with paragraph (m)(3) of this standard, or place in sealed, impermeable enclosures, such as bags or containers, that are labeled in accordance with paragraph (m)(3) of this standard.

    [FR Doc. 2018-09307 Filed 5-4-18; 8:45 am] BILLING CODE 4510-26-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0601; FRL-9977-42—Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; supplemental.

    SUMMARY:

    The Environmental Protection Agency (EPA) is issuing a supplement to its March 1, 2018 proposed approval of the Commonwealth of Virginia's (the Commonwealth or Virginia) request to change reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State Air Pollution Rule (CSAPR) to address certain regional haze requirements and to convert the Agency's limited approval/limited disapproval of Virginia's regional haze SIP to a full approval. EPA's March 1, 2018 notice of proposed rulemaking (NPR) also proposed to approve the “visibility element” of Virginia's infrastructure SIP submittals for the 2010 sulfur dioxide (SO2) and 2012 fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). This supplemental proposal clarifies the infrastructure elements the Agency is proposing to approve for the 2010 SO2 National Ambient Air Quality Standards (NAAQS) and proposes to remove EPA's June 7, 2012 federal implementation plan (FIP) for Virginia which replaced reliance on CAIR with reliance on CSAPR to address certain deficient regional haze requirements identified in the Commonwealth's regional haze state implementation plan (SIP). EPA is seeking comment only on the issues raised in this supplemental proposal and is not reopening for comment other issues raised in its prior proposal. This action is being taken under the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before June 6, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0601 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:

    Ellen Schmitt, (215) 814-5787, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    On July 16, 2015, the Virginia Department of Environmental Quality (VA DEQ) submitted a revision to the Virginia SIP to update its regional haze plan to change reliance from CAIR to CSAPR and to meet visibility requirements in section 110(a)(2)(D) of the CAA. On March 1, 2018 (83 FR 8814), EPA published a notice of proposed rulemaking (March 1, 2018 NPR) proposing to take the following actions: (1) Approve Virginia's July 16, 2015 SIP submission that changes reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) convert EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval; and (3) approve the prong 4 portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS and of its July 16, 2015 infrastructure SIP submission for the 2012 PM2.5 NAAQS. EPA is not reopening the public comment period to submit comment on the issues addressed in the March 1, 2018 NPR.

    II. Specific Issues Addressed in This Supplemental NPR Removal of Partial Regional Haze FIP

    On June 7, 2012, EPA finalized a limited approval and a limited disapproval of several SIP revisions submitted by VA DEQ meant to address regional haze program requirements.1 The limited disapproval of these SIP revisions was based upon Virginia's reliance on CAIR as an alternative to best available retrofit technology (BART) and as a measure for reasonable progress. To address deficiencies in CAIR-dependent regional haze SIPs for several states, including Virginia, EPA promulgated FIPs that replace reliance on CAIR with reliance on CSAPR to meet BART and reasonable progress requirements in Virginia and other states in that same action. Consequently, for these states, this particular aspect of their regional haze requirements was satisfied by a FIP (hereafter referred to as partial RH FIP). On July 16, 2015, the Commonwealth of Virginia submitted a SIP revision changing its reliance from CAIR to CSAPR in its SIP to meet BART for visibility purposes and for addressing reasonable progress requirements, thereby removing Virginia's need for the partial RH FIP.

    1 77 FR 33643. Virginia's SIP revisions are dated July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011.

    In its March 1, 2018 NPR, EPA proposed to approve the July 16, 2015 SIP revision which would change Virginia's reliance upon CAIR to reliance upon CSAPR for the BART and reasonable progress elements of Virginia's regional haze program. EPA also proposed to convert EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval based on Virginia's SIP revision changing reliance upon CAIR to reliance upon CSAPR. In this action, EPA proposes to remove the Agency's partial RH FIP for Virginia which replaced reliance on CAIR with reliance on CSAPR to address certain deficient regional haze requirements identified in the Commonwealth's regional haze SIP. EPA's proposed action to remove this FIP for Virginia is in accordance with section 110(l) of the CAA and will not impact any regional requirements as Virginia will have, when this action is final, a fully approved regional haze program and the ability to rely on CSAPR for certain regional haze requirements, incorporated in its SIP.

    Section 110(a)(2)(J) Visibility Requirement

    The CAA requires states to submit, within three years after promulgation of a new or revised NAAQS, SIP revisions meeting the applicable elements of sections 110(a)(1) and (2). SIP revisions that are intended to meet the requirements of section 110(a) of the CAA are often referred to as infrastructure SIPs and the elements under 110(a) are referred to as infrastructure requirements. EPA acted on the majority of the infrastructure elements within Virginia's infrastructure SIP submittals for the 2010 SO2 and 2012 PM2.5 NAAQS, but concluded that it would take separate action on 110(a)(2)(J) for visibility for 2010 SO2 as well as on 110(a)(2)(D)(i)(II) for visibility (also known as prong 4) for both the 2010 SO2 and 2012 PM2.5.2 3

    2 On March 4, 2015 (80 FR 11557), EPA approved portions of Virginia's June 18, 2014 submittal for the 2010 SO2 NAAQS addressing the following: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M).

    3 On June 16, 2016 (81 FR 39208), EPA approved portions of Virginia's July 16, 2015 submittal for the 2012 PM2.5 NAAQS addressing the following: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

    In its March 1, 2018 NPR, EPA proposed to approve prong 4 for both the 2010 SO2 and 2012 PM2.5 NAAQS,4 however the Agency did not address section 110(a)(2)(J) of the CAA as it relates to visibility protection. For this section, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, the visibility and regional haze program requirements under part C do not change. Therefore, when EPA took action on Virginia's infrastructure SIP submittal for the 2010 SO2 NAAQS,5 the Agency could have approved 110(a)(2)(J) for visibility; however, it inadvertently neglected to do so at that time. EPA is now taking action to remedy this unintentional omission by proposing approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS specifically for section 110(a)(2)(J) for visibility as well as for prong 4 which we proposed for approval on March 1, 2018.

    4 In its analysis for the March 1, 2018 NPR, EPA proposed to find that if revisions to the Commonwealth's regional haze SIP were fully approved, then the prong 4 portions of Virginia's infrastructure SIP submittal for the 2010 SO2 and 2012 PM2.5 NAAQS meet applicable requirements of the CAA.

    5See 80 FR 11557. (approving Virginia's June 18, 2014 submittal for the 2010 SO2 NAAQS for CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M)).

    EPA is soliciting comments on the specific issues discussed in this document referring to the proposed: (1). Removal of the partial regional haze FIP which replaced reliance on CAIR with reliance on CSPAR to address certain regional haze requirements as finalizing our March 1, 2018 NPR will give Virginia's regional haze SIP full approval; and (2). approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS section 110(a)(2)(J) for visibility (in addition to approval for 110(a)(2)(D)(i)(II)). These comments and those received during the comment period for the March 1, 2018 NPR will be considered before taking final action.

    III. Proposed Action

    EPA is proposing removal of the partial regional haze FIP which replaced reliance on CAIR with reliance on CSPAR to address certain regional haze requirements and approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS for section 110(a)(2)(J) for visibility.

    IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its regional haze program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    V. 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.

    • 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 the Office of Management and Budget (OMB) for review.

    • Paperwork Reduction Act (PRA). This action does not impose an information collection burden under the PRA. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

    • Regulatory Flexibility Act (RFA). 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.

    • 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.

    • 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.

    • Executive Order 13175: Consultation and Coordination with Indian Tribal Governments. This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.

    • Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks. EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045.

    The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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).

    In addition, pursuant to CAA section 307(d)(1)(B), EPA proposes to determine that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Virginia regional haze regional FIP that apply to changing reliance on CAIR to reliance on CSAPR to address certain deficient regional haze requirements is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under section 110(c) of the CAA. Furthermore, section 307(d)(1)(V) of the CAA provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” EPA proposes that the provisions of 307(d) apply to EPA's action on the Virginia SIP revision.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 19, 2018. Cosmo Servidio, Regional Administrator, Region III.
    [FR Doc. 2018-09653 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 152, 156, 174 and 180 [EPA-HQ-OPPT-2012-0423; FRL-9977-08] Withdrawal of Proposed Rules; Discontinuing Several Rulemaking Efforts Listed in the Semiannual Regulatory Agenda AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of proposed rules.

    SUMMARY:

    EPA is withdrawing several proposed regulatory requirements described in the proposed rules identified in this document for which the Agency no longer intends to issue a final regulatory action. This document identifies the proposed rules and provides a brief explanation for the Agency's decision not to pursue a final action. The withdrawal of these proposed rules does not preclude the Agency from initiating the same or a similar rulemaking at a future date. It does, however, close out the entry for these rulemakings in EPA's Semiannual Regulatory Agenda. Should the Agency decide at some future date to initiate the same or similar rulemaking, it will add an appropriate new entry to EPA's Semiannual Regulatory Agenda to reflect the initiation of the action, and EPA will issue a new notice of proposed rulemaking.

    DATES:

    As of May 7, 2018, the proposed rules published on November 23, 1994, at 59 FR 60519; November 23, 1994, at 59 FR 60525; June 26, 1996, at 61 FR 33260; and September 17, 1999, at 64 FR 50671, are withdrawn.

    ADDRESSES:

    The docket for this action, identified under docket identification (ID) number EPA-HQ-OPPT-2012-0423, is available at http://www.regulations.gov or at the EPA Docket Center (EPA/DC), 1301 Constitution Ave. 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, for the OPP Docket it is (703) 305-5805, and the telephone number for the OPPT Docket is (202) 566-0280. For more information about the docket and instructions about visiting the EPA/DC, go to http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Angela Hofmann, Director, Regulatory Coordination Staff (7101M), Office of Chemical Safety and Pollution Prevention, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-0258; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. Does this action apply to me?

    This action is directed to the public in general, and may be of particular interest to those persons who follow proposed rules issued under the Toxic Substances Control Act (TSCA), the Federal Food, Drug, and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since others may also be interested, the Agency has not attempted to describe all the specific entities potentially interested.

    II. Why is EPA issuing this withdrawal of proposed rules?

    This document serves two purposes:

    1. It announces to the public that EPA is withdrawing certain proposed rules for which the Agency no longer intends to issue a final rule.

    2. It officially terminates the ongoing rulemaking activities, which allows the Agency to close out the individual rulemaking entries for these actions that appear in EPA's Semiannual Regulatory Agenda.

    All agencies publish Semiannual Regulatory Agendas describing regulatory actions they are developing or have recently completed. These agendas are published in the Federal Register, usually during the spring and fall of each year, as part of the Unified Agenda of Federal Regulatory and Deregulatory Actions (Semiannual Regulatory Agenda). The Agency publishes the EPA Semiannual Regulatory Agenda to update the public about: Regulations and major policies currently under development, reviews of existing regulations and major policies, and rules and major policies completed or canceled since the last Semiannual Regulatory Agenda.

    The Semiannual Regulatory Agenda is often used as a tool to solicit interest and participation from stakeholders. As such, EPA believes that the public is best served by a Semiannual Regulatory Agenda that reflects active rulemaking efforts. The withdrawal of these inactive rulemaking efforts will streamline EPA's Semiannual Regulatory Agenda and allow the public to better identify and focus on those rulemaking activities that are active.

    For the individual reasons described in this document, the Agency has decided not to complete these actions at this time. By withdrawing the proposed rules, the Agency is eliminating the pending nature of that regulatory action. Should the Agency determine to pursue anything in these areas in the future, it will create a new entry in EPA's Semiannual Regulatory Agenda and issue a new proposed rule.

    III. Which proposed rules are being withdrawn?

    This Unit identifies the proposed regulatory actions that are being withdrawn, provides a summary of what was proposed, and a brief explanation for the Agency's withdrawal. The “RIN” refers to the regulatory identification number assigned to the rulemaking effort in the Semiannual Regulatory Agenda.

    A. Groundwater and Pesticide Management Plan Rule (PMP); RIN 2070-AC46

    1. What was proposed? On June 26, 1996 (61 FR 33260; FRL-4981-9), EPA issued a proposed rule to implement a key component of the Agency's 1991 Pesticides and Ground Water Strategy, and it reflected many years of discussions and input from States and other stakeholders. Through the development and use of State Management Plans (SMPs), EPA proposed to restrict the use of certain pesticides by providing States with the flexibility to protect the ground water in the most appropriate way for local conditions. This approach capitalized on the most effective and efficient roles for State and Federal Government to collaborate in the protection of the nation's ground water resources. Using the proposed SMP approach, EPA proposed to restrict the legal sale and use of five pesticides that have been identified as either “probable” or “possible” human carcinogens—alachlor, atrazine, cyanazine, metolachlor, and simazine. Because of their potential to contaminate ground water, EPA had determined that these pesticides may cause unreasonable adverse effects on the environment in the absence of effective management measures provided by a SMP. The proposed rule announced that the labels of these pesticides would be changed to require use in accordance with an EPA-approved SMP, after a period of time allowed for development and approval of these SMPs. The proposed rule also contained proposed revisions to pesticide labeling regulations, in order to clarify general labeling requirements.

    On February 23, 2000 (65 FR 8925; FRL-6491-1), EPA solicited public comments on additional information about metolachlor, which was one of the four pesticides in the proposed rule. In the proposed PMP rule, the Agency proposed, as a condition of continued use, that States and Tribes prepare chemical-specific management plans for four herbicides that have been shown to persist in the environment and leach to ground water, creating a potential unreasonable adverse effect on human health and the environment. Specifically, EPA sought comment on data provided to EPA pertaining to the products containing metolachlor, S-metolachlor, and R-metolachlor.

    2. Why is it being withdrawn? Action on the proposal was delayed while the scope of the program described in the proposed rule was reconsidered to determine whether the program could be expanded to address water quality issues in addition to ground water, and to determine the best partnership approach to implementation. More important, the risk level associated with the named pesticides in the proposed rule was also reexamined as part of the FIFRA reregistration process concluded in 2006. As part of that process, EPA determined that all five of the chemicals identified in the SMP proposal met the “no unreasonable adverse effects on the environment” standard for FIFRA registration without the steps identified in the proposed rule. These reregistration determinations necessarily mean that the rule is unnecessary to prevent unreasonable adverse effects on the environment, and EPA is therefore withdrawing its proposed rule.

    3. Where can I get more information about this action? The docket for this action is available under docket ID number OPP-36190.

    B. Pesticides; Registration Requirements for Antimicrobial Pesticide Products; RIN 2070-AD14

    1. What was proposed? On September 17, 1999, (64 FR 50671; FRL-5570-6), EPA issued a proposed rule to establish procedures for the registration of antimicrobial products, as well as implement certain new provisions of FIFRA, as amended by the Food Quality Protection Act (FQPA). In addition to registration procedures for antimicrobial products, EPA also proposed to establish labeling standards for antimicrobial public health products, which would ensure that these products are appropriately labeled for the level of antimicrobial activity they demonstrate; to modify its notification process for antimicrobial products to conform to the statutorily prescribed process; and to exempt certain antimicrobial products from FIFRA regulation. EPA proposed new procedures and provisions to streamline and improve the registration process, increase consistency and certainty for antimicrobial producers, reduce the timeframes for EPA decisions on antimicrobial registrations, increase public health protection by ensuring the continued efficacy of antimicrobial public health pesticides, and promote international harmonization efforts. EPA proposed to interpret the applicability of the new FIFRA definition of “pesticide” that excludes liquid chemical sterilants from FIFRA regulation and includes nitrogen stabilizers, and to describe requirements pertaining to use dilution labeling. EPA anticipated the proposed rule would provide technical, conforming and organizational changes to portions of its regulations on pesticide registration and labeling for clarity and understanding. On November 16, 1999, (64 FR 62145; FRL-6393-8), EPA extended the comment period for the original proposed rule.

    2. Why is it being withdrawn? On December 14, 2001 (66 FR 64759; FRL-6752-1) EPA issued a final rule, entitled “Pesticide Labeling and Other Regulatory Revisions,” effective February 12, 2002, revising certain labeling regulations for pesticide products for clarity and published an interpretation of the FIFRA as it applies to nitrogen stabilizers. The final rule also revised regulations that contain statutory provisions excluding certain types of products from regulation as pesticides.

    The Pesticide Registration Improvement Act (PRIA), which was enacted in 2003, reauthorized October 1, 2007, by the Pesticide Registration Improvement Renewal Act (PRIA 2), and reauthorized again on October 1, 2012 by the Pesticide Registration Improvement Act (PRIA 3), established deadlines and pesticide registration service fees for registration actions. The category of action, the amount of the pesticide registration service fee, and the corresponding decision review periods by year are prescribed in these statutes. These statutory enactments were intended to create a more predictable evaluation process for affected pesticide decisions, and couple the collection of individual fees with specific decision review periods. They also promote shorter decision review periods for reduced-risk applications. EPA now actively provides guidance for PRIA-driven streamlined regulatory determinations for most major pesticide registration actions that is applicable to all pesticide registration types, not just antimicrobial products. (see PRIA guidance http://www.epa.gov/pesticides/regulating/fees/index.htm).

    The passage and implementation of PRIA and the implementation of the Agency's final rule regarding pesticide labeling and other regulatory revisions of December 14, 2001, have rendered the remainder of what was proposed in the proposed rule moot. For these reasons, EPA is withdrawing the remainder of what was proposed in its proposed rule.

    3. Where can I get more information about this action? The docket for this action is available under docket ID number OPP-36190.

    C. Plant-Incorporated Protectants (PIPs); Exemption for Those Derived Through Genetic Engineering From Sexually Compatible Plants; RIN 2070-AD55

    1. What was proposed? On November 23, 1994 (59 FR 60519; FRL-4755-3) (when proposed, the RIN was 2070-AC02), EPA proposed to exempt from FIFRA regulation those plant-incorporated protectants (then called plant-pesticides) that are not likely to present new exposures to non-target organisms. This exemption was proposed based on the assumption that if a plant normally produces a pesticidal substance, organisms that normally come into contact with the plant have likely been exposed to the substance in the past, perhaps over long periods of time. No new exposures would be likely to occur, and based on long experience with plants in conventional agriculture, such PIPs would meet the FIFRA section 25(b)(2) exemption standard. In defining, for regulatory purposes, those substances for which no new exposures would occur, the Agency proposed to base its approach on the concept of sexual compatibility. Sexually compatible plants are more likely to share common traits than are unrelated plants. If the donor of the genetic material is sexually compatible with the recipient plant, it can be assumed that the genetic material is already present in the sexually compatible plant population and there would be no novel exposures. In the 1994 proposal, the proposed regulatory text did not specify how the genetic material of a plant-incorporated protectant or “PIP” could be moved from the donor to the sexually compatible recipient plant, whether through conventional breeding or genetic engineering techniques.

    On July 19, 2001 (66 FR 37855; FRL-6760-4), EPA finalized part of its 1994 proposal thereby exempting certain plant-incorporated protectants moved among plants in a sexually compatible population. The 2001 rule defined sexually compatible as meaning a viable zygote is formed only through the union of two gametes through conventional breeding. EPA did not in 2001 finalize that part of the proposal dealing with PIPs moved among plants in a sexually compatible population through genetic engineering but rather requested additional public comment on the issues raised by scientific information discovered between 1994 in 2001, in 1994 in public comment, and by issues raised by the 2000 report of the National Academies of Science (NAS) National Research Council (NRC).

    2. Why is it being withdrawn? EPA is withdrawing this proposed action because as the Agency's experience with PIPs and greater scientific knowledge have increased, it has become evident to the Agency that were EPA to pursue an exemption for certain PIPs moved among plants in sexually compatible populations through genetic engineering, more appropriate, scientifically current criteria for describing the exempted PIPs should be developed rather than relying on the criteria proposed in 1994.

    In 2001, EPA concluded that a high probability exists that PIPs moved between plants in sexually compatible populations through conventional breeding would not present novel exposures to nontarget organisms. Notwithstanding that conclusion, EPA could not (with the same level of confidence) draw the same conclusion for PIPs moved between plants in sexually compatible plant populations through genetic engineering given the limitations of the modification techniques available at that time. In addition, EPA came to agree with the 2000 NRC report that recommended that “[g]iven that transfer and manipulation of genes between sexually compatible plants could potentially result in adverse effects in some cases . . . EPA should reconsider its categorical exemption of transgenic [plant-incorporated protectants] derived from sexually compatible plants.” (NRC 2000 at p. 131, emphasis in original). The NRC report pointed out for example that the Agency's proposed language would exempt genetic material moved among plants in sexually compatible populations through genetic engineering without taking into consideration whether the moved genetic material would be expressed in the same pattern and at the same levels as occurs naturally in the plant (NRC 2000 at p. 129). The proposal is not supported by a sufficient basis to finalize the proposed exemption, especially in light of the scientific developments that have taken place in the last decade.

    Recently, newer, more precise techniques of genetic engineering have been developed based on scientific discoveries in genetics and molecular biology since the 1994 proposal and the 2001 rule were issued. These developments will allow the Agency to craft criteria that are scientifically more current and that more accurately describe the PIPs that would be exempted as well as procedures to better ensure that all the PIPs in an exempted category meet the FIFRA section 25(b)(2) exemption standard. Consequently, if EPA were to pursue such an exemption today, the Agency would issue a new proposed rule, based on knowledge of the types of products possible with the newest technology rather than issuing a final rule based on the previous proposals. Withdrawing the 1994 proposal does not preclude the Agency from initiating the same or similar regulatory action in the future. At that time, the Agency will initiate a new regulatory action and create a new entry for the Semiannual Regulatory Agenda. It is also worth noting that the Agency's proposal to exempt certain types of pesticide products from regulation under FIFRA is entirely a discretionary action; there is no requirement in FIFRA that the Agency promulgate a regulation to exempt products that might satisfy the exemption standard in FIFRA section 25(b)(2). EPA is therefore withdrawing the remainder of this proposal.

    3. Where can I get more information about this action? The docket for this action is available under docket ID number OPP-300369.

    D. Plant-Incorporated Protectants (PIPs); Exemption for PIPs That Act by Primarily Affecting the Plant; RIN 2070-AD56

    1. What was proposed? On November 23, 1994 (59 FR 60519; FRL-4755-3) (when proposed, the RIN was 2070-AC02), EPA proposed, under FIFRA section 25(b)(2), to exempt from most of the requirements of FIFRA those Plant-Incorporated Protectants (PIPs) (in 1994, PIPs were called plant-pesticides (see 59 FR 60525; November 23, 1994)) that act primarily by affecting the plant under the assumption that such PIPs are less likely to be directly toxic to either target pests or to nontarget organisms. The criteria proposed at 40 CFR 174.5(b)(2) describe PIPs that act primarily by affecting the plant as a pesticidal substance so that the target pest is inhibited from attaching to the plant, penetrating the plant, or invading the plant's tissue in at least one of three ways: (a) The pesticidal substance acts as a structural barrier to attachment of the pest to the host plant, a structural barrier to penetration of the pest into the host plant, or a structural barrier to spread of the pest in the host plant, for example, through the production of wax or lignin, or length of trichomes (plant hairs); (b) The pesticidal substance acts in the host plant to inactivate or resist toxins or other disease-causing substances produced by the target pest; or (c) The pesticidal substance acts by creating a deficiency of a plant nutrient or chemical component essential for pest growth on/in the host plant.

    EPA also indicated in 1994 that it was considering whether to extend this exemption to include substances such as plant hormones, because plant hormones act within the plant to “primarily affect the plant” and do not act directly on a target pest.

    On July 19, 2001 (66 FR 37855; FRL-6760-4), EPA reopened the comment period on the proposed exemption to allow the public an opportunity to comment on the information, analyses, and conclusions pertaining to PIPs that act primarily by affecting the plant in the report issued in 2000 by the NRC of the NAS entitled “Genetically Modified Pest-Protected Plants: Science and Regulation” (National Research Council. 2000. National Academies Press, Washington, DC), and to comment on several risk issues received in public comment on the 1994 proposal (59 FR 60525, November 23, 1994).

    2. Why is it being withdrawn? Because of new scientific discoveries in the area of genetics and molecular biology the Agency has concluded that neither the original 1994 proposal nor the subsequent 2001 supplemental proposal present a sufficient basis for making the statutory finding required under FIFRA section 25(b)(2) to exempt this class of PIPs. Given the current state of genetic technology, it is possible that the exemption criteria set out in 1994 could exempt PIP products available today that pose different risks than the Agency envisioned when it initially proposed the criteria. In essence, the more limited technological capabilities and understanding of science in 1994 led EPA to propose criteria for a generic exemption that current technologies and scientific understanding have rendered inappropriate. While there may be some PIPs that act primarily by affecting the plant that would meet the FIFRA section 25(b)(2) standard for exemption, the Agency no longer considers its proposed criteria for a generic exemption to fairly restrict available products to only those that “are of a character which is unnecessary to be subject to” regulation under FIFRA. 7 U.S.C. 136w(b)(2). EPA is therefore withdrawing this proposal.

    The decision to exempt pesticides under section 25(b) of FIFRA is entirely discretionary; there is no requirement that EPA promulgate pesticide exemptions. Withdrawing the proposal does not preclude the Agency from initiating regulatory action in the future for PIPs that act primarily by affecting the plant, e.g., exempting on a case-by-case basis a PIP that acts primarily by affecting the plant when that PIP can be shown to meet the FIFRA section 25(b)(2) exemption standard. At that time, the Agency would initiate a new regulatory action and create a new entry for EPA's Semiannual Regulatory Agenda.

    i. Why the Proposed Exemption Criteria Would Exempt Pesticides that Do Not Meet FIFRA Section 25(b)(2) Safety Standard. A number of advances in scientific knowledge accumulated since publication of the 1994 proposal to exempt PIPs that act primarily by affecting the plant have contributed to an understanding of how the proposed criteria would exempt from FIFRA requirements PIPs that do not meet the FIFRA 25(b)(2) exemption standard. For example, recent research into plant regulatory mechanisms, e.g., the discovery of, and elucidation of the role of interfering RNAs (RNAi), in gene expression, not available at the time the 1994 proposal was published, contributed to the Agency's determination that the proposed exemption categories were constructed such that there are PIPs in the exempted categories that would not meet the FIFRA section 25(b)(2) standard. RNAi plays a key role in directing development of an organism, as well as controlling the various biological functions necessary to maintaining the life of an organism. RNAi is triggered by dsRNA, and while dsRNA can be native to the cell it can also be introduced from an external source. At the time the exemption was proposed, the role of dsRNA in controlling biological functions in the cell was unknown and the possibility that dsRNA could be introduced into the plant to affect the plant's behavior was not taken into consideration. Had such knowledge been available, the proposed criteria would have been based on substantively different logic.

    ii. Consideration of the points made in the 2000 NRC Report. In withdrawing this proposal, EPA has also taken into consideration the points the 2000 NRC report made on the Agency's 1994 proposal to exempt from FIFRA requirements PIPs that act primarily by affecting the plant. The NRC report noted that the Agency's analysis did not consider all of the potential impacts on non-target species of all of the PIPs proposed for exemption, including the possibility that in some instances secondary metabolites affecting non-target organisms could be a by-product of a modification to create a PIP that acts primarily by affecting the plant. The NRC report concluded that based on its considerations a “[C]ategorical exemption under FIFRA might not be scientifically justifiable” (NRC 2000 at p. 133). Finally, the NRC report also cautioned the Agency that “genetic changes that result in production of a specific plant protectant can result in production of biologically active compounds other than the intended plant protectants” and cautioned that “EPA should be aware of those unintended changes” (NRC 2000 at p. 134). Upon further analysis, EPA has concluded that the generic criteria proposed in 1994 to allow exemption of PIPs, did not meet the FIFRA section 25(b)(2) exemption standard.

    Given the large number of potential PIPs displaying a wide range of modes of action in the categories circumscribed by each of the proposed exemption criteria, and advances in knowledge showing scientific concerns with the logic underpinning the criteria as constructed in 1994, the Agency cannot utilize the proposed criteria as a basis for this rulemaking. EPA is therefore withdrawing this proposal.

    3. Where can I get more information about this action? The docket for this action is available under docket ID number OPP-300369. See also related dockets identified by the docket ID numbers OPP-300370 and OPP-300371.

    Authority:

    7 U.S.C. 136 et seq., 21 U.S.C. 346.

    Dated: April 25, 2018. Charlotte Bertrand, Acting Principal Deputy Assistant Administrator, Office of Chemical Safety and Pollution Prevention.
    [FR Doc. 2018-09206 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0291; FRL-9976-34] Receipt of a Pesticide Petition Filed for Residues of Diquat in or on Crop Group 6C, Dried Shelled Pea and Bean (Except Soybean); Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; correction.

    SUMMARY:

    EPA issued a notice in the Federal Register of September 15, 2017, announcing the initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before June 6, 2018.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2017-0291, by one of the following methods:

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to 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 comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What Does this Correction Do?

    This notice is being issued to correct PP 7E8571. (EPA-HQ-OPP-2017-0291) in FR Doc. 2017-19692, published in the Federal Register of September 15, 2017 (82 FR 43352) (FRL-9965-43) is corrected as follows:

    PP 7E8571. (EPA-HQ-OPP-2017-0291). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish a tolerance in 40 CFR 180.226 for residues of the herbicide, diquat (6,7-dihydrodipyrido [1,2-a:2′1′-c] pyrazinediium), and its metabolites in or on Crop Group 6C, dried shelled pea and bean (except soybean) at 0.9 parts per million (ppm). The Method GRM012.03A is used to measure and evaluate the chemical residues of diquat dibromide in commodities. Contact: RD.

    Authority:

    21 U.S.C. 346a.

    Dated: April 26, 2018. Michael Goodis, Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2018-09648 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 10 RIN 0906-AB18 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation AGENCY:

    Health Resources and Services Administration, HHS.

    ACTION:

    Notice of proposed rulemaking; further delay of effective date.

    SUMMARY:

    The Health Resources and Services Administration (HRSA) administers section 340B of the Public Health Service Act, referred to as the “340B Drug Pricing Program” or the “340B Program.” HHS is soliciting comments on further delaying the effective date of the January 5, 2017, final rule that sets forth the calculation of the ceiling price and application of civil monetary penalties, and applies to all drug manufacturers that are required to make their drugs available to covered entities under the 340B Program. HHS proposes to further delay the effective date of the final rule published in the Federal Register from July 1, 2018, to July 1, 2019. HHS proposes this action to allow a more deliberate process of considering alternative and supplemental regulatory provisions and to allow for sufficient time for additional rulemaking.

    DATES:

    Submit comments on or before May 22, 2018.

    ADDRESSES:

    You may submit comments, identified by the Regulatory Information Number (RIN) 0906-AB18, by any of the following methods. Please submit your comments in only one of these ways to minimize the receipt of duplicate submissions.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow instructions for submitting comments. This is the preferred method for the submission of comments.

    Email: [email protected] Include 0906-AB11in the subject line of the message.

    Mail: Office of Pharmacy Affairs (OPA), Healthcare Systems Bureau (HSB), Health Resources and Services Administration (HRSA), 5600 Fishers Lane, Mail Stop 08W05A, Rockville, MD 20857.

    All comments submitted will be available to the public in their entirety. Please do not submit confidential commercial information or personally identifying information that you do not want in the public domain.

    FOR FURTHER INFORMATION CONTACT:

    CAPT Krista Pedley, Director, OPA, HSB, HRSA, 5600 Fishers Lane, Mail Stop 08W05A, Rockville, MD 20857, or by telephone at 301-594-4353.

    SUPPLEMENTARY INFORMATION: I. Background

    HHS published a notice of proposed rulemaking (NPRM) on June 17, 2015, to implement civil monetary penalties (CMPs) for manufacturers that knowingly and intentionally charge a covered entity more than the ceiling price for a covered outpatient drug; to provide clarity regarding the requirement that manufacturers calculate the 340B ceiling price on a quarterly basis; and to establish the requirement that a manufacturer charge $.01 (penny pricing) for each unit of a drug when the ceiling price calculation equals zero (80 FR 34583, June 17, 2015). After review of the initial comments, HHS reopened the comment period (81 FR 22960, April 19, 2016) to invite additional comments on the following areas of the NPRM: 340B ceiling price calculations that result in a ceiling price that equals zero (penny pricing); the methodology that manufacturers use when estimating the ceiling price for a new covered outpatient drug; and the definition of the “knowing and intentional” standard to be applied when assessing a CMP for manufacturers that overcharge a covered entity.

    On January 5, 2017, HHS published a final rule in the Federal Register (82 FR 1210, January 5, 2017); comments from both the original comment period established in the NPRM and the reopened comment period announced in the April 19, 2016, notice were considered in the development of the final rule. The provisions of that final rule were to be effective March 6, 2017; however, HHS issued a subsequent final rule (82 FR 12508, March 6, 2017) delaying the effective date to March 21, 2017, in accordance with a January 20, 2017, memorandum from the Assistant to the President and Chief of Staff, titled “Regulatory Freeze Pending Review.” 1

    1 See: https://www.whitehouse.gov/the-press-office/2017/01/20/memorandum-heads-executive-departments-and-agencies.

    To provide affected parties sufficient time to make needed changes to facilitate compliance, and because questions were raised, HHS issued an interim final rule (82 FR 14332, March 20, 2017) to delay the effective date of the final rule to May 22, 2017. HHS solicited additional comments on whether that date should be further extended to October 1, 2017. After careful consideration of the comments received, HHS delayed the effective date of the January 5, 2017, final rule to October 1, 2017 (82 FR 22893, May 19, 2017).

    HHS later solicited comment on delaying the effective date of the January 5, 2017, final rule to July 1, 2018 (82 FR 39553, August 21, 2017). After consideration of the comments received, HHS delayed the effective date of the January 5, 2017, final rule to July 1, 2018 (82 FR 45511, September 29, 2017).

    II. Proposal To Delay the Effective Date of the Final Rule

    HHS proposes to further delay the effective date of the January 5, 2017, final rule as HHS intends to engage in additional or alternative rulemaking on these issues, and as discussed in more detail on page 5, the Department believes it would be counterproductive to effectuate the final rule prior to issuance of additional or alternative rulemaking on these issues. HHS is in the process of developing new comprehensive policies to address the rising costs of prescription drugs. Those policies will address drug pricing in government programs, such as Medicare Parts B & D, Medicaid, and the 340B discount drug program. Accordingly, we are proposing to delay the effective date of the final rule entitled “340B Drug Pricing Ceiling Price and Manufacturer Civil Monetary Penalties Regulation.” See 82 FR 1210 (Jan. 5, 2017).

    This rule is currently scheduled to go into effect on July 1, 2018; we are proposing to delay further the effective date to July 1, 2019. We do not believe that this delay will adversely affect any of the stakeholders in a meaningful way. The final rule implements both penny pricing and a provision in the Affordable Care Act contemplating civil money penalties for those who fail to provide the proper 340B discounts to covered entities. The so-called penny pricing provision would allow manufacturers to charge $0.01 for a drug with when the ceiling price calculation results in a zero amount. As discussed in the January 5, 2017 final rule, a small number of manufacturers have informed HHS over the last several years that they charge more than $0.01 for a drug with a ceiling price below $0.01. However, this is a long-standing HHS policy, and HHS believes the majority of manufacturers currently follow the practice of charging a $0.01. Therefore, the delay of this portion of the regulation would not result in a significant economic impact.

    Delaying implementation of the 340B-specific CMPs should have no adverse effect given that other more significant remedies are available to entities that believe that they have not been provided the full discount that they are entitled to receive under the program. This proposed delay, though, will save the healthcare sector compliance costs, as described in the January 5, 2017 issuance of the final rule.

    HHS believes that the proposed delay would allow necessary time to consider more fully the substantial questions of fact, law, and policy identified by the Department during its review of the rule pursuant to the aforementioned “Regulatory Freeze Pending Review,” memorandum. Requiring manufacturers to make targeted and potentially costly changes to pricing systems and business procedures to comply with a rule that is under further consideration would be disruptive.

    As background, the January 20, 2017, Executive Order entitled, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” specifically instructs HHS and all other heads of executive offices to utilize all authority and discretion available to delay the implementation of certain provisions or requirements of the Patient Protection and Affordable Care Act.2 The January 5, 2017, final rule is based on changes made to the 340B Program by the Patient Protection and Affordable Care Act. HHS is proposing to further delay the effective date of the January 5, 2017, final rule to July 1, 2019, to more fully consider the regulatory burdens that may be posed by this final rule.

    2 See: https://www.thefederalregister.org/fdsys/pkg/FR-2017-01-24/pdf/2017-01799.pdf.

    At this time, HHS seeks public comment regarding the impact of delaying the effective date of the final rule, published January 5, 2017, for an additional 12 months from the current effective date of July 1, 2018, to Ju1y 1, 2019, while a more deliberate rulemaking process is undertaken. HHS is soliciting public comments for a shortened 15-day period because parties have had ample opportunity to comment on the two prior delays of the effective date of the underlying 340B regulation, and the impact of this delay on the regulated community is de minimis. Given the prior opportunities to comment on the underlying proposed regulation and the delays, we do not envision receiving any novel comments. Moreover, we believe that the delay of the CMP authority can be issued without the opportunity for public comment because it delays the effective date of a regulatory restriction. HHS encourages all stakeholders to provide comments on this proposed rule.

    III. Regulatory Impact Analysis

    HHS has examined the effects of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 8, 2011), the Regulatory Flexibility Act (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132 on Federalism (August 4, 1999).

    Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. A regulatory impact analysis must be prepared for major rules with economically significant effects ($100 million or more in any one year), and a “significant” regulatory action is subject to review by the Office of Management and Budget (OMB).

    HHS does not believe that the proposal to further delay the effective date of the January 5, 2017, final rule will have an economic impact of $100 million or more, and therefore, this NPRM has not been designated as an “economically significant” proposed rule under section 3(f)(1) of the Executive Order 12866. The economic impact of having no rule in place related to the policies addressed in the final rule is believed to be minimal.

    Executive Order 13771, entitled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. This action's designation as regulatory or deregulatory will be discussed in the final rule and be informed by comments received in response to this proposed rule.

    The Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require HHS to analyze options for regulatory relief for small businesses. If a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of the rule on small entities and analyze regulatory options that could lessen the impact of the rule. HHS will use an RFA threshold of at least a 3 percent impact on at least 5 percent of small entities.

    For purposes of the RFA, HHS considers all health care providers to be small entities either by meeting the Small Business Administration (SBA) size standard for a small business, or by being a nonprofit organization that is not dominant in its market. The current SBA size standard for health care providers ranges from annual receipts of $7 million to $35.5 million. As of January 1, 2018, over 12,800 covered entities participate in the 340B Program, representing safety-net health care providers across the country. HHS has determined, and the Secretary certifies, that this proposed rule would not have a significant impact on the operations of a substantial number of small manufacturers; therefore, we are not preparing an analysis of impact for this RFA. HHS estimates that the economic impact on small entities and small manufacturers would be minimal. HHS welcomes comments concerning the impact of this proposed rule on small manufacturers.

    Unfunded Mandates Reform Act

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “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 million or more (adjusted annually for inflation) in any one year.” In 2017, the threshold level was approximately $148 million. HHS does not expect this rule to exceed the threshold.

    Executive Order 13132—Federalism

    HHS has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This proposed rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that OMB approve all collections of information by a federal agency from the public before they can be implemented. This proposed rule is projected to have no impact on current reporting and recordkeeping burden for manufacturers under the 340B Program. This proposed rule would result in no new reporting burdens. Comments are welcome on the accuracy of this statement.

    Dated: May 1, 2018. George Sigounas, Administrator, Health Resources and Services Administration. Approved: May 2, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
    [FR Doc. 2018-09711 Filed 5-4-18; 8:45 am] BILLING CODE 4165-15-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 2, 90 [WP Docket No. 07-100; FCC 18-33] 4.9 GHz Band AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In 2002, the Commission allocated the 4940-4990 MHz (4.9 GHz) band for fixed and mobile use and designated the band for public safety broadband communications. Since then, the band has experienced relatively light usage compared to the heavy use of other public safety bands. In this document, the Commission proposes several rule changes and seeks comment on alternatives with the goal of promoting increased public safety use of the band while opening up the spectrum to additional uses that will encourage a more robust market for equipment and greater innovation. The Commission proposes rules on channel aggregation, aeronautical mobile use, frequency coordination, site-based licensing, regional planning, and technical rule changes with the goal of promoting increased use of the band. The Commission seeks comment on alternatives such as expanding eligibility, spectrum leasing, sharing, and redesignating the band for commercial use.

    DATES:

    Submit comments on or before July 6, 2018. Submit reply comments August 6, 2018.

    ADDRESSES:

    You may submit comments, identified by WP Docket No. 07-100 by any of the following methods:

    Federal Communications Commission's website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.

    Mail: U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    Hand or Messenger Delivery: 445 12th St., SW, Room TW-A325, Washington, DC 20554.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Eng, Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, at (202) 418-0019, TTY (202) 418-7233, or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Sixth Further Notice of Proposed Rulemaking (Sixth FNPRM) in WP Docket No. 07-100, adopted on March 22, 2018 and released as FCC 18-33 on March 23, 2018. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities or by sending an email to [email protected] or calling the Consumer and Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432. This document is also available on the Commission's website at http://www.fcc.gov.

    Comments

    Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1 (1998).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554.

    Introduction

    The Commission has allocated and designated 50 megahertz of spectrum in the 4.9 GHz band (4940-4990 MHz) to public safety. Although nearly 90,000 public safety entities are eligible under our rules to obtain licenses in the band, there were only 2,442 licenses in use in 2012 and only 3,174 licenses in use nearly six years later in 2018. With no more than 3.5% of potential licensees using the band, we remain concerned that, as the Commission stated in 2012, the band has “fallen short of its potential.”

    Public safety entities have offered several reasons why the band has seen less use than expected. One reason cited is the difficulty of acquiring equipment and the cost of deployment. According to the Association of Public-Safety Communications Officials International's (APCO) 4.9 GHz Task Force Report (APCO Report), “the public safety user community remains small relative to the greater consumer marketplace,” which “has historically resulted in a limited vendor ecosystem, specialized devices, and higher costs.” We also believe that a lack of available equipment for mobile applications has impeded widespread use of the band by public safety. The National Public Safety Telecommunications Council (NPSTC) has argued that interference concerns have also suppressed use of the 4.9 GHz band. In its 4.9 GHz NPSTC Plan Recommendations Final Report (NPSTC Plan), NPSTC notes that because the Commission's current rules “allow geographically based licensing with little documentation on system design and transmitter location,” public safety “contemplating new service in this band cannot determine if other agencies in their area might cause harmful interference today or in the future.”

    In this Sixth FNPRM, we seek comment on several alternatives to stimulate expanded use of and investment in the 4.9 GHz band, drawing on comments in the record as well as the NPSTC Plan submitted in 2013 and the APCO Report submitted in 2015. Our goal is to ensure that public safety continues to have priority in the band while opening up the band to additional uses that will facilitate increased usage, including more prominent mobile use, and encourage a more robust market for equipment and greater innovation, while protecting primary users from harmful interference. We believe that with an appropriate sharing mechanism in place, which we discuss in further detail below, our proposed approach will promote more opportunistic use of the 4.9 GHz band without compromising the integrity and security of public safety operations.

    Background

    In June 2012, the Commission released the Fifth Further Notice of Proposed Rulemaking (Fifth FNPRM) in which it sought comment on rule changes intended to establish frequency coordination procedures for 4.9 GHz operations and to encourage spectrum efficiency and greater use of the 4.9 GHz band. It sought comment on how 4.9 GHz licensees currently use this spectrum, what applications and uses are best suited for the band, and what are the most cost-effective ways to improve accessibility to the band while minimizing adverse impact on incumbent operations. The Commission sought views on alternative frequency coordination proposals for 4.9 GHz licensees. The Commission also sought comment on specific proposals regarding expanded eligibility for critical infrastructure industry (CII) entities, for commercial entities on a secondary basis, subject to a shutdown feature, and for the First Responder Network Authority (FirstNet). The Commission also sought comment about the impact of the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) on broadband uses of the 4.9 GHz band by public safety entities. Finally, the Commission sought comment on whether to allow aeronautical mobile use in the 4.9 GHz band.

    The responsive comments to the Fifth FNPRM illustrate the wide variety of existing systems operating in the 4.9 GHz band and underscore the importance of developing rules that promote flexible use and maximize spectrum efficiency. Since the Fifth FNPRM the Commission has continued to build the record on the 4.9 GHz band. In October 2013, NPSTC submitted detailed recommendations in the NPSTC Plan, and the Public Safety and Homeland Security Bureau (Bureau) released a Public Notice seeking comment on the proposals in the NPSTC Plan. In September 2015, the APCO Report provided additional recommendations on how to increase public safety use of the band, reduce equipment costs, and drive investment in up-to-date technology in the band.

    Sixth Further Notice of Proposed Rulemaking

    Taking into consideration the record in response to the Fifth FNPRM, comments on the NPSTC Plan, the APCO Report, and more recent ex parte filings, we now propose a limited set of rules for the 4.9 GHz band to promote more flexible and intensive use of this spectrum while preventing interference. We also seek comment on current usage and what types of services are being provided. Our goals are (a) to support the needs of public safety while opening the band to other compatible uses, (b) to maximize spectral efficiency and usage, (c) to promote a common equipment ecosystem that will drive down equipment costs and stimulate investment through economies of scale, (d) to encourage innovation, and (e) to ensure that secondary users do not cause interference to primary users.

    In this Sixth FNPRM, we review the major issues previously identified in the Fifth FNPRM; in the NPSTC Plan and the APCO Report and in comments on both of these evaluations; and in subsequent ex parte proposals. We then propose and seek comment on specific rules and policies intended to address each issue, and seek comment on and solicit alternative proposals.

    Band Plan

    In the Fifth FNPRM, the Commission sought comment on the current 4.9 GHz band plan, which divides the band into ten one-megahertz channels (Channels 1-5 and 14-18) and eight five-megahertz channels (Channels 6-13), and limits channel aggregation bandwidth to 20 megahertz. The NPSTC Plan proposes to keep this channelization, but recommends aggregating Channels 1-5 into a single 5 megahertz channel designated for air-to-ground communications and robotic use and proposes to reduce the current channel aggregation limit from 20 to 10 megahertz. The APCO Report proposes no band plan changes but calls for relaxing the 20 megahertz channel aggregation limit, arguing that this would enable the band to accommodate 40 megahertz products that are currently available only outside the U.S., which relaxation could “create a better business case for manufacturers,” and would “provide more options for rural deployments.”

    Discussion. Most commenters express support for the NPSTC band plan proposal. Based in part on the NPSTC band plan, we propose to retain the existing channelization plan for the band, but we seek comment below on more flexible aggregation limits, and in the Aeronautical Mobile and Robotic Use section, we propose to modify the 4.9 GHz band plan by aggregating Channels 1-5 to form a five-megahertz bandwidth channel for aeronautical mobile and robotic use. Although current geographic licenses authorize use of the entire 50 megahertz by all qualified services, we envision that under our revised rules we would grant licenses for specific uses that would authorize specific channels. We are concerned that the current geographic licensing model does not provide sufficient information on specific channel usage to facilitate effective frequency coordination, which we propose below for the 4.9 GHz band. For example, we seek comment on licensing base stations and hot spots site-by-site rather than blanket geographic licensing, and licensing these stations and mobiles for a specific channel or channels instead of the entire band, to the extent that channel use is static. Does 4.9 GHz equipment dynamically change channels as needed throughout the band to avoid interference? We seek comment on these proposals.

    We further propose to expand the existing channel aggregation bandwidth limit to 40 megahertz and seek comment on that proposal, which could provide more options of the type advocated in the APCO Report, such as new rural deployments, and may enable public-safety access to 5G technologies. We seek comment on this proposal. We are concerned that narrowing the limit to 10 megahertz as proposed in the NPSTC Plan would constrain flexibility and discourage use of innovative broadband technologies. We nonetheless propose to allow Regional Planning Committees (RPCs) to submit plans to limit aggregations to 20 megahertz. We solicit alternative band plan suggestions or modifications to the above. For example, should we permanently aggregate Channels 6-9 and 10-13 to form two 20-megahertz channels? We seek comment about the relative costs and benefits of wider channels. Are wider channels needed to drive innovation of equipment in the band, or are the current aggregation limits sufficient?

    We agree with commenters that any reconfiguration or repurposing of the 4.9 GHz band should not force incumbent licensees to modify, abandon, or replace existing 4.9 GHz facilities, which would impose technical, operational, and financial burdens on those incumbents. Therefore, we propose to grandfather all incumbent users as of the date any final rules become effective. As we discuss below in the Database and Existing Licensees section, we further propose that those incumbent licensees whose authorizations currently encompass the entire 4.9 GHz band must certify the channels they actually use when they input their transmitter and receiver parameters into the Commission's Universal Licensing System (ULS) database. Only those channels for which operating parameters have been supplied would receive protection. We seek comment on this approach, under which all new primary and secondary users of the band will be required to coordinate around and protect incumbent users. We also seek comment on whether a temporary licensing freeze before the release date of a report and order in this proceeding and lasting until the effective date of the final rules would be necessary to prevent the filing of applications for systems that are incompatible with the modified band plan.

    Aeronautical Mobile and Robotic Use

    In the Fifth FNPRM, the Commission sought comment on whether to lift the general prohibition on aeronautical mobile operations in the 4.9 GHz band. The Commission proposed to revise § 90.1205(c) to permit aeronautical mobile operation in the band on a secondary, non-interference basis to 4.9 GHz terrestrial services and subject to demonstrating interference protection to radio astronomy (RAS) operations. The Commission sought comment on whether to impose restrictions or conditions on aeronautical mobile use, such as an altitude limit of 1500 feet above ground.

    Eight parties filed comments to the Fifth FNPRM in support of allowing aeronautical mobile operations under such conditions. The National Academy of Sciences Committee on Radio Frequencies (CORF), an organization representing RAS observatories, requests the following conditions: (1) Make the aeronautical use secondary to terrestrial services, including RAS; (2) limit the altitude of use of this band to 1500 feet above the altitude of the observatory and limit operation to greater than 50 miles from observatories; (3) require aeronautical mobile applicants within 50 miles of protected observatories to demonstrate that the former will protect the latter from interference; and (4) require applicants within 50 miles of protected observatories to certify that they have served a copy of their application on such observatories. AASHTO recommends that air-to-ground operations that employ omnidirectional antennas should be limited to low power, while operations using steerable directional antennas that minimize interference to terrestrial users could employ higher power. FCCA/IAFC/IMSA recommend a maximum altitude of “500 feet above ground for direct, non-directional air-to-ground video feeds,” a maximum bandwidth of five megahertz for a video feed, and a requirement that “aircraft providing video feeds to fixed remote receive sites must use steerable antennas and be limited to 1500 feet above ground level.”

    The NPSTC Plan recommends aggregating Channels 1-5 into a five-megahertz channel to be used for air-to-ground communications and robotic communications. The NPSTC Plan would permit transmissions at altitudes up to 400 feet above ground level, and at higher altitudes if the licensee has a waiver. The proposal would require aeronautical mobile operations with an area of operation less than 80.5 km from listed RAS sites to obtain concurrence from the affected RAS site. NPSTC proposes licensing robotic operations on Channels 1-5 on a shared basis with air-to-ground operations, not allowing Channels 1-5 to be used for point-to-point (P-P) communications, and migrating existing users to other channels. APCO also supports these proposals, noting that “modification of the existing rules, using the guidelines proposed in the NPSTC recommendations, would allow use of the 4.9 GHz band for air to ground communications, would add to the available public safety portfolio, and would assist with increasing public safety use of the spectrum.” APCO also supports “following the proposal contained in the NPSTC report with regard to robotic operations to allow for use of 4.9 GHz spectrum on a controlled and limited basis for robotic applications.”

    Discussion. We propose to designate Channels 1-5 as aeronautical mobile channels in the 4.9 GHz band. The proposed channel selection provides spectral separation from RAS operations in the 4950-4990 MHz band. As NPSTC notes, the 4.9 GHz band is an ideal short range band with the bandwidth required to transmit video from air to ground. Moreover, many law enforcement agencies operate helicopters and planes using video cameras and so could benefit from this rule change.

    We also propose to designate Channels 1-5 for robotic use. Although law enforcement has been using robots for several years, these devices currently operate on an unlicensed basis and are unprotected from interference. Modifying our rules to allow robotic operations could thus improve public safety. We seek comment on the relative costs and benefits of adding robotic use to this band. Is interference likely to be a problem for public safety robots? We propose to limit aerial transmitted information to video payload and to prohibit use of the 4.9 GHz band for aircraft (including unmanned aircraft systems) command and control. We seek comment on these proposals and also request commenting parties to address whether similar restrictions on payload and command and control frequencies should be imposed on robotic uses.

    One of the potential cost of these rules would be that, for other than grandfathered licensees, the public safety use of Channels 1-5 would be limited to aeronautical mobile and robotic operations. We seek comment on the extent to which limiting the flexibility of spectrum use in this manner imposes costs by, e.g., creating cumbersome regulatory obstacles to repurposing the spectrum for alternative public safety needs that may become more pressing as circumstances change. Are there any countervailing benefits in establishing these proposed use restrictions? We also seek comment on the potential benefits of the proposed rule apart from such restrictions. Such benefits, which may be significant, would include that aeronautical mobile functionality would provide to first responders, who could use Channels 1-5 to transmit airborne video of emergency scenes such as wildfires, vehicle pursuits, and other events to assist in response and recovery efforts. A benefit of using these channels for robotic operations would be to enhance first responder safety by allowing users to send remote controlled, camera-equipped mobile devices into potentially dangerous situations. We seek comment on the magnitude of these and any other relative costs and benefits.

    Because we decline to propose mandatory relocation of incumbent terrestrial users on Channels 1-5, we therefore propose to require aeronautical mobile and robotic operations to be frequency coordinated around incumbent terrestrial users of Channels 1-5, consistent with the frequency coordination procedures proposed in the Coordination section below, including RPC review. We seek comment on the relative costs and benefits of this coordination requirement. Once aeronautical mobile and robotic operations are licensed, we propose to grant them co-primary status on Channels 1-5. Therefore, during an incident or emergency requiring such use, they would be able to operate on an equal basis with terrestrial users, around which they have already been coordinated, presenting a minimal risk of interference. To prevent future terrestrial licensing in the 4940-4945 MHz segment, we propose to revise § 90.1207 so terrestrial-based licenses are only available in the 4945-4990 MHz segment rather than the entire band. We seek comment on the relative costs and benefits of these proposals and alternative approaches.

    While we propose to allow manned aeronautical use of Channels 1-5, we believe it would be premature at this time to permit unmanned aerial systems (UAS) to transmit in the 4.9 GHz band. The Federal Aviation Administration's (FAA) part 107 rules limit small UAS operations to 400 feet altitude above ground, require visual line of sight aircraft operation, prohibit operations over people, and prohibit operation in certain airspace, among other restrictions. The FAA's UAS altitude limit is well below our proposal of 1500 feet above ground, and the other restrictions may present impediments to effective public safety use of UAS. Moreover, the Commission has not yet issued service rules for UAS operations in any specific spectrum band. Nevertheless, we seek comment on the potential for the 4.9 GHz band to support possible future UAS payload operations.

    We propose to establish a maximum altitude limit of 1500 feet (457 meters) above ground level (AGL) for manned airborne operations on Channels 1-5. We believe this limit allows greater flexibility than NPSTC's proposal of 400 feet and is consistent with the altitude limit adopted for air-to-ground communications in the 700 MHz narrowband spectrum. However, because FAA rules require fixed-wing aircraft to maintain certain clearances around structures, we propose to allow fixed-wing aircraft to transmit at altitudes exceeding 1500 feet AGL, but only to avoid obstructions, and then only in the immediate area of the obstruction. We seek comment on the terrestrial interference potential and coverage of fixed-wing aircraft compared to the interference potential and coverage of helicopters, and whether any restrictions or prohibitions should apply to either group of aircraft.

    We propose to allow air-to-ground and robotic transmissions only from low power devices as defined in § 90.1215 of our rules, which limits maximum conducted output power to 14 dBm per 5 megahertz bandwidth and use of a directional antenna to confine radiation to the direction of the associated receiving antenna. We seek comment on this proposed power limit, as well as on other techniques to minimize interference. For example, AASHTO and LA County propose to allow use of higher powered steerable directional antennas for air-to-ground communications, while Vislink contends that some air-ground communications will require omnidirectional antennas. We seek comment on the current state of aerial steerable directional antenna technology and the associated cost of such equipment.

    To minimize the impact of 4.9 GHz aeronautical and robotic operations on the important work being done by RAS observatories, we propose that aeronautical mobile and robotic operations, as with all other 4.9 GHz band operations, make every effort to protect the RAS observatories listed in our rules. We propose that aeronautical mobile use shall generally be prohibited within 80.5 kilometers from a listed RAS site. Public safety entities seeking authorization for aeronautical mobile operations fewer than 80.5 kilometers from a listed RAS site would be required to submit a waiver request and notify and obtain concurrence from the affected observatory. Next, we propose to apply the L emission mask to aeronautical mobile devices on Channels 1-5, which will provide attenuation of 40 dB at 4950 MHz and above to minimize emissions into RAS. We do not propose to require robotic operations to maintain 80.5 km spacing to RAS sites. Robotic operations are transient and, because of their lower antenna elevations relative to airborne operations, do not pose an equivalent interference issue. Moreover, RAS sites are typically located in remote areas where robotic operations are unlikely to take place. We seek comment on our conclusion concerning the interference potential of robotic operations to RAS operations and on any burdens that these proposed RAS protection rules would impose, including the burden placed on small entities.

    Next, we propose to amend § 2.106 of the Commission's rules to remove the prohibition on aeronautical mobile service use from the 4940-4950 MHz band in the non-Federal Table of Frequency Allocations, i.e., we propose to reallocate the lower 10 megahertz segment of the 4940-4990 MHz band from the “mobile except aeronautical mobile” service to the “mobile” service. This action would parallel the International Table and provide the Commission with additional flexibility with regard to the future use of the mobile service. We request comment on this proposal.

    Finally, we remind commenters that the United States has border agreements with Canada and Mexico for the 4.9 GHz band that limit potential air-ground operations in border areas. In the Canada Agreement, the Commission agrees not to authorize aeronautical mobile stations within 160 kilometers of the border area without the written consent of Innovation, Science and Economic Development Canada (ISED). In the Mexico Agreement, for stations operated in aircraft, power flux density shall not exceed -114 dBW/m2 in any 1 MHz bandwidth at or beyond the common border. Thus, any rules we may adopt authorizing aeronautical use will be subject to these restrictions in border areas. However, we retain the option of seeking future revision of these cross-border agreements through appropriate international channels. The limits arising from these international agreements would continue to apply to all licensees in the 4.9 GHz band, including aeronautical and robotic uses.

    Coordination

    Our rules currently require 4.9 GHz licensees to “cooperate in the selection and use of channels in order to reduce interference and make the most effective use of the authorized facilities,” but do not require prior frequency coordination. We note that current 4.9 GHz band licenses authorize use of the entire band and are geographic rather than site-based. Thus, they allow licensees to deploy base stations, mobile units, and temporary fixed stations anywhere within the licensee's jurisdiction using any part of the spectrum band by informally coordinating with other uses, and without having to obtain prior clearance from the Commission. In the 2009 FNPRM in this proceeding, the Commission expressed concern that informal self-coordination “may not ensure that applicants for primary permanent fixed stations offer sufficient protection to other primary permanent fixed stations and other co-primary users.” Accordingly, the Commission proposed a notice-and-response coordination procedure conducted among applicants and licensees similar to the procedure used for point-to-point (P-P) microwave applications under part 101 of the Commission's rules. However, in the Fifth FNPRM, the Commission acknowledged the views of the majority of commenters that notice-and-response coordination “may not be appropriate for this band because [it] would add a level of uncertainty and complexity to the coordination process,” and sought comment on requiring 4.9 GHz applications to be submitted to a third party such as a certified public safety frequency coordinator or an RPC. Most commenters to the Fifth FNPRM supported certified frequency coordination for the 4.9 GHz band, although a few commenters argued that the status quo of self-coordination is working.

    NPSTC's Plan proposes that 4.9 GHz applications be coordinated by a certified public safety frequency coordinator. APCO supports NPSTC's recommendation because “many public safety users and manufacturers choose not to invest in the 4.9 GHz band because it is not coordinated.” Specifically, APCO reports that “the current jurisdictional licensing model is viewed within the public safety community as too similar to an unlicensed structure to provide the degree of confidence needed for mission critical communications, including sensitive transmissions.” APCO asserts that “new frequency coordination procedures designed to improve usage, performance, and interference protection would encourage public safety entities that have been reluctant in the past to begin utilizing the 4.9 GHz Band.”

    Discussion. We propose to require certified frequency coordination for licensing in the 4.9 GHz band. Given that our goal is to encourage a wide variety of uses of the 4.9 GHz band, we agree with NPSTC, APCO, and the majority of commenters that neither self-coordination nor a notice-and-response coordination procedure is likely to be sufficient to ensure interference protection to primary users in a mixed use environment. We seek comment on this view. We do not propose to require incumbent 4.9 GHz licensees to submit to frequency coordination for their existing operations. Rather, as noted above, we propose to grandfather incumbent operations provided that they file certain technical information on P-P, point-to-multipoint (P-MP), base, and mobile operations in our licensing database as discussed infra in the Database and Existing Licensees section.

    We propose that, subject to qualification criteria, Public Safety Pool frequency coordinators which the Commission has certified to coordinate in other part 90 spectrum bands should be eligible to coordinate applications in the 4.9 GHz band. We seek comment on whether to limit 4.9 GHz band coordination to public safety coordinators or whether to allow coordination by non-public safety coordinators as well. To ensure that coordinators are qualified to address band-specific coordination issues, we propose to require all frequency coordinators seeking to coordinate in the 4.9 GHz band to submit a qualification showing, which would include a coordination plan and a showing of expertise specifically for the 4.9 GHz band. We further propose to direct the Public Safety and Homeland Security Bureau to certify coordinators for the band. We seek comment on these proposals, including whether a qualification showing would place a burden on small entities. Current public safety frequency coordinator fees for frequency pair/site combinations range from $60 to $315 depending on the frequency band. We seek comment on the relative costs and benefits of frequency coordination.

    The NPSTC Plan proposed that frequency coordinators would send each application to the applicant's home RPC for a five-business day review. We believe this particular proposal is burdensome on RPCs and redundant with the frequency coordinator's function and invite comment on this tentative conclusion. However, NPSTC also proposed that any application where the power flux density (PFD) into an adjacent region border exceeds −109 dBW/m2 would be flagged to be sent to the adjacent RPC to review. We believe this proposal may help prevent interference between regions, so we propose to adopt it. We seek comment on whether this PFD is an appropriate threshold, how PFD should be calculated and predicted, and how a PFD dispute would be resolved. We seek comment on what reference bandwidth should apply to this proposed PFD limit, e.g., is a 5 megahertz bandwidth appropriate?

    Finally, we seek comment on whether waiving frequency coordination for certain technology could serve as incentive for manufacturers and licensees to use such technology in the 4.9 GHz band without creating harmful interference. Should we exempt certain short term uses from frequency coordination, such as public safety robotic uses or ad hoc mobile networks? If so, how could such users minimize interference potential to existing operations in the same areas?

    Database and Existing Licensees

    In the Fifth FNPRM, the Commission noted that ULS does not contain information specifying receiver location for 4.9 GHz band P-P or P-MP links, geographically licensed base station coordinates, antenna gain, output power, and antenna height. Because a frequency coordinator lacking this information would have difficulty protecting incumbent primary fixed links and base stations from interference from new operations, the Fifth FNPRM proposed to require all current 4.9 GHz licensees to register the technical parameters of their permanent fixed P-P, P-MP, and base-to-mobile stations, including permanent fixed receivers when applicable, into a coordination database to ensure that primary operations receive proper interference protection. The Commission “tentatively concluded that the most cost-effective option is for the Commission to create and maintain a 4.9 GHz registration database that is modeled after an existing database,” such as the millimeter wave band registration database in ULS. The Commission also sought comment on whether to use a third party database such as the Computer-Assisted Pre-Coordination Resource and Database (CAPRAD) or a dynamic database similar to the Television White Space (WS) database.

    Commenters generally agree that the 4.9 GHz band is hampered by lack of a reliable database that provides technical information about current licensee deployments. The APCO Report concludes that wider use of the 4.9 GHz band is inhibited by “blanket geographical licensing for fixed and mobile operations on any channel across the band,” and therefore proposes that “all fixed locations be identified and licensed for a specific channel or channels.” The NPSTC Plan proposes that incumbent licensees be required to “relicense using the proposed frequency coordination process and appropriate ULS schedules” within one year from when ULS is ready to accept applications using the new process. It also proposes that incumbent licensees that do not conform to the new band plan (including any region-specific variations) must modify their licenses within five years of the adoption of new rules.

    The NPSTC Plan recommends using ULS to compile the information needed for coordination because “ULS is already funded” and “data required for coordination is already collected by ULS in the application process.” NPSTC opposes using a private database that would “require the applicants to fund the entire cost of capturing, storing, and making data available to coordinators.” However, other commenters suggest establishing a geo-location database similar to the WS database, so that commercial and unlicensed users could use the 4.9 GHz band on a secondary basis.

    Discussion. Our rules specify that 4.9 GHz licensees encountering or causing harmful interference are expected to cooperate and resolve the problem by mutually satisfactory arrangements. Based on the record in this proceeding, we believe that concerns from public safety users of this band regarding resolution of interference issues in the 4.9 GHz band would be addressed if more complete technical information is available to all affected parties. Therefore, we propose to require incumbent licensees and new applicants to provide technical information that will enhance frequency coordination and help mitigate the possibility of interference, while permitting more new users, thereby promoting more efficient use of spectrum that has long been underutilized. We solicit alternative suggestions that would achieve these goals.

    We believe ULS provides the most efficient and cost-effective means to facilitate certified frequency coordination in the 4.9 GHz band because it is both flexible and easily accessible to frequency coordinators, incumbent licensees, applicants, and other interested parties. While the Commission relies on private databases in other select spectrum bands, ULS is already set up for licensing in the 4.9 GHz band, and the Commission can use existing form schedules to capture P-P, P-MP, fixed receiver, base station, and mobile station data. Accordingly, we propose to add the 4.9 GHz band to the microwave schedule for P-P, P-MP, and fixed receiver stations. We also propose to uncouple base and mobile stations from geographic licenses and instead require that base and mobile technical parameters be entered on the existing location and technical data schedules. Thus, we propose to maintain ULS as the comprehensive licensing database for the 4.9 GHz band, which frequency coordinators will use to base their coordination. This proposal would not affect or restrict frequency coordinators' use of their own internal databases, which draw licensing data from ULS on a regular basis. We propose to modify ULS as necessary to accept the necessary licensing data, prepare application instructions, and release a public notice to announce when ULS is ready to accept such applications. Regarding the burdens associated with the Commission's application for radio service authorization, the Commission has estimated that “each response to this collection of information will take on average 1.25 hours.” The estimate “includes the time to read the instructions, look through existing records, gather and maintain required data, and actually complete and review the form or response.” We seek comment on whether these time and cost burdens are accurate, and on the number of entities (incumbents and new entrants) likely to be subject to this requirement. We also seek comment on how best to measure the benefits emanating from this filing requirement in order to determine whether its benefits exceed its relative costs. For example, what is the cost of resolving current and potential interference problems in the absence of such a filing requirement? We seek comment on this proposal, and on the feasibility of alternative database solutions.

    We propose to set a one-year timetable, starting on the release date of the ULS public notice described above, for incumbent licensees to provide data, as recommended in the NPSTC Plan. We propose one year because we believe this gives licensees sufficient time to gather technical information about their site-based facilities and file applications, while providing a reasonable date certain that ULS will be sufficiently populated with site-based data to enable accurate frequency coordination. We propose to establish an application process for existing licensees with geographic licenses to identify P-P, P-MP, fixed receivers, base stations, and mobiles that are not licensed site-by-site. Under this process, incumbent licensees would file one or more applications, and update or delete the existing licenses as necessary to eliminate redundancy following a Public Notice announcing that ULS is ready to accept such applications. There would be no fee for the application process since only public safety eligible entities are currently authorized in the band, and the Commission does not charge application fees for public safety entities. We seek comment on this proposal.

    AASHTO suggests that incumbent licensees should be required to submit to frequency coordination either when their licenses are set for renewal or within one calendar year of the Commission's adoption of coordination requirements. We disagree because the purpose of the application process is to collect missing incumbent data so that fixed operations would be visible in the database. Although a richer database will better aid future coordinations, coordination of incumbents is not necessary to accomplish this goal and would impose unnecessary cost. Accordingly, for this incumbent application process, we propose to grant NYCTA's request to waive frequency coordination requirements for one year following the effective date of those rules. However, we propose that after the one-year deadline, an application from an incumbent licensee to supply the required database information would be treated as any other application for a new license or modification, i.e., it would require frequency coordination. We seek comment about whether the status of a license should become secondary if the incumbent licensee does not meet the one-year deadline.

    Finally, we decline to propose that incumbent licensees modify their licenses to conform to the new proposed rules and band plan. We agree with commenters such as Region 8 and King County/Seattle that such action would be unduly burdensome and inequitable to incumbent licensees, which already use the band for mission critical public safety operations. Instead, we propose to grandfather existing licensees from having to make any technical modifications to conform to the new rules and band plan, other than providing more sufficient data as we discussed above, as of the effective date of new rules adopted in this proceeding. However, applications from incumbent licensees submitted more than one year after the new rules are in effect would be subject to the new proposed rules and band plan.

    Regional Planning

    Section 90.1211(a) of the Commission's rules provides that each RPC region may submit a plan with guidelines to be used for sharing spectrum in the 4.9 GHz band. The rules list elements to be included in regional plans and provide instructions for the plan's modification. Although the Commission originally set a deadline for all RPCs to submit 4.9 GHz regional plans, it subsequently decided to make plan submission voluntary and stayed the deadline. To date, only 10 out of 55 RPC regions have submitted 4.9 GHz regional plans. In the Fifth FNPRM, the Commission sought comment on whether it should lift the stay and amend § 90.1211 to require Regional Plans to cover permanent fixed links and base stations, as well as mobile and temporary fixed links.

    NPSTC's Plan states that “a single national plan for 4.9 GHz will meet most regions' needs,” but “some regions will need some different parameters to better meet needs of users in their regions. NPSTC proposes to allow RPCs to file amended regional plans specific to 4.9 GHz to reflect regional considerations, including a required showing of need, within 120 days after the Commission adopts new rules for the band. Several commenters support RPC involvement in the 4.9 GHz band.

    Discussion. We believe that RPCs should play an integral role in shaping use of the 4.9 GHz band through regional planning. In this connection, we propose to afford RPCs the flexibility to file new and amended regional plans for Commission review and approval to reflect their region-specific needs or considerations as supported by a showing of need. Alternately, RPCs would have the option to default to the national rules without regional variation by taking no action. We seek comment on this proposal, and on how to implement regional variations.

    NPSTC recommends that RPCs be able to make region-specific changes in the following four areas: (i) Enabling additional channel aggregation; (ii) incorporating an additional channel designated for specialized use; (iii) placing limits on the use of P-P links in urban areas or imposing more stringent antenna requirements or other technical parameters to allow greater channel reuse; and (iv) in rural areas, allowing higher radiated power for longer path lengths and non-line of sight paths. We tentatively disagree with the NPSTC Plan's proposals for item (i) because we propose to allow 40 megahertz channel aggregation, and for item (iv) because we believe that the upper equivalent isotropically radiated power (EIRP) limits should be codified in our rules rather than left to the discretion of the RPCs. We propose to allow regional plans to be submitted for Commission approval that include variations for items (ii) and (iii) as well as for polarization. In lieu of item (i), we propose to allow RPCs to limit aggregations to 20 megahertz as discussed above. We also propose to limit the ability of RPCs to restrict non-public safety licensing eligibility to a greater degree than is provided in the Commission's rules. In general, we believe that providing these areas in which a regional plan can deviate from the national plan, combined with the overall flexibility of the band plan we propose, will enable regions to meet most needs of their users without threatening investments in existing deployments. Because we cannot foresee all areas in which RPCs may need flexibility, we propose to allow RPCs to request changes outside these areas pursuant to a waiver request. We are mindful that regional variations add a challenge to frequency coordination, but we believe that frequency coordinators have the tools to keep track of these variations. We seek comment on relative costs and benefits arising from this approach, which would not change the status of regional plans as optional.

    We seek comment on when RPCs should be required to submit regional plans. Comments on this issue were mixed, with suggested deadlines of 180 days, 240 days, and 12 months after final rules are effective. Considering the resource constraints on RPCs, we propose a deadline of six months after the effective date of final rules for each RPC to notify the Commission either that it intends to file a regional plan or that the region will default to the general rules, and a deadline of one year after rules adopted in this proceeding become effective for the filing of regional plans. Prior to Commission acceptance of any regional plan, we propose to allow new applications for 4.9 GHz licenses to be filed consistent with updated general rules. These licenses would be grandfathered for the duration of the license period. We would lift the current stay on § 90.1211(a) once the proposed rule modification becomes effective. We propose to continue to accept regional plans and amendments after the one-year deadline for the benefit of those RPCs that lack the resources to file timely regional plans or are not yet formed, but the purpose of the deadline is to provide a goal to commence licensing based on regional plan considerations. The Public Safety and Homeland Security Bureau would place any submitted regional plans on public notice for comment. With regard to Plan Amendments, we seek comment on establishing a streamlined process for staff review of such modifications, including defining “major” and “minor” plan modifications as defined by § 90.527(b) of the rules. We seek comment on these proposals and solicit alternative suggestions, especially from the individual RPCs. We seek comment on any burdens that the regional plan filing deadline may place on small entities.

    Finally, we decline the NPSTC Plan's recommendation to permanently waive the existing requirement to obtain concurrence from adjacent regions for plan amendments. The NPSTC Plan makes no mention of the existing adjacent region coordination requirement for initial regional plans, and we do not see why regional plan amendments should not also be subject to adjacent region review. This adjacent region review process for plan amendments has worked in the 700 MHz and 800 MHz bands, and we do not believe the process which is currently in place is unduly burdensome on RPCs for the 4.9 GHz band. We seek comment on whether adjacent region review requirements would place undue burdens on small entities.

    Technical Standards

    In the Fifth FNPRM, the Commission sought comment on whether to adopt technical standards for 4.9 GHz band equipment. While acknowledging that the Commission previously had declined to mandate such a technical standard, the Commission sought comment on using IEEE 802.11 as a potential standard solution, given the standard's worldwide availability and flexibility in supporting various applications. Some commenters to the Fifth FNPRM assert that mandatory technical standards would inhibit technological development in the band, restrict local flexibility and control, and render existing equipment obsolete. Other commenters contend that standards would promote national interoperability and lend certainty to the marketplace for 4.9 GHz equipment. A number of these commenters express specific support for an 802.11-based standard.

    Discussion. Since the Commission adopted service rules for the 4.9 GHz band in 2003, the 4.9 GHz band has not fostered a market for diverse technology or inexpensive equipment, which in turn has led to underutilization and a slow influx of users. In general, the Commission has favored technology-neutral rules and has avoided adoption of mandatory standards, a model that has worked in many spectrum bands. However, the record in this proceeding suggests that some public safety users may desire greater certainty regarding technical standards to stimulate investment in the band. While we tentatively conclude that we should not adopt mandatory technical standards for the 4.9 GHz band and seek comment on this view, we seek comment on how to encourage voluntary implementation of technical standards for equipment in the band that can provide certainty for public safety users while also providing appropriate incentives for manufacturers to develop innovative and cost-effective equipment that will encourage interoperability, discourage fragmentation, and reduce equipment costs through higher economies of scale. Would a voluntary industry standard/framework that would not be promulgated in our rules be appropriate and preferable to incorporating such a standard (or any other) in our rules? Are there industry standards available in the 4.9 GHz band, and if not, what is the likelihood that applicable standards could be extended to the 4.9 GHz band? What would be the relative cost and benefit of different voluntary standards for high-power and low-power systems?

    Point-to-Point and Point-to-Multipoint

    Until 2009, permanent fixed P-P and P-MP stations in the 4.9 GHz band were secondary to base, mobile, and temporary fixed operations. In 2009, the Commission permitted licensing of permanent fixed P-P and P-MP stations that deliver broadband services on a primary basis, while those stations that deliver narrowband traffic remain secondary to other operations in the 4.9 GHz band. In the Fifth FNPRM, the Commission sought comment on whether to license all permanent fixed P-P stations on a primary basis, regardless of whether they support broadband or narrowband traffic, or whether permanent fixed P-MP stations not delivering broadband service should remain secondary.

    Discussion. Secondary status requires the user to accept the risk of interference and to cease operation if it causes interference to a primary licensee. The supporting commenters persuade us that primary status for P-P and P-MP links that carry or support narrowband traffic would resolve this risk and increase usage of the 4.9 GHz band because it would give potential users confidence to invest in the band. Given the divided comment record on primary status for narrowband P-P and P-MP links, we propose to allow licensees to use individual 1-MHz bandwidth Channels 14-18 for permanent fixed P-P and P-MP operations on a primary basis, while existing permanent fixed P-P and P-MP operations on individual 1-MHz bandwidth Channels 1-5 would remain secondary, with no such further licensing allowed on those channels due to the proposed aeronautical mobile and robotic designation. We seek comment on this proposal, including its relative costs and benefits. Under the status quo, any competing public safety organization in dense urban areas could obtain secondary licenses for P-P and P-MP links on channels 14-18 with no obligation to protect each other from interference. Accordingly, one potential cost of a proposal to license these links on a primary basis is that it could increase the difficulty of competing public safety organizations in dense urban areas to obtain primary licenses for base, mobile, and temporary fixed operations in channels 14-18 because primary users are entitled to interference protection and cannot be licensed with overlapping channel assignments and areas of operation as secondary use may allow. How likely is this to occur, and what would be the cost of a work-around?

    The NPSTC Plan recommends that applications for P-P licenses include a showing as to the need for the bandwidth requested, to address the potential of P-P links to cause interference. At this time, we do not propose to impose such a requirement, which no other commenter has suggested, because the record does not contain objective benchmarks for correlating various uses with bandwidth needs. We have found that no evidence of P-P interference in the record, and we invite commenters to submit any such evidence. Further, we believe that technical rule changes we propose below in the Power Limits section may reduce interference potential by producing more directional P-P links. We seek comment on our view and on these concerns.

    Next, in order to limit “temporary” links to truly temporary uses, we propose to adopt the NPSTC Plan's recommendation that temporary P-P links may only be operated for thirty days maximum over a given path in a one-year period. Any application for longer operation would require a showing why longer duration is needed and how the link is supporting public safety protection of life and property. We seek comment on whether the number of days should be reduced or increased and the reasons therefor. We seek comment on the relative costs and benefits of the limitation proposed here, as well as any alternate proposals. We solicit alternative suggestions and solicit comment on burdens that a timeframe limitation on temporary P-P links would place on small entities.

    Finally, we decline to consider a request from the comment record that the band be used only for fixed uses. The band supports substantial mobile use, and it would be contrary to the public interest to force such operations to relocate from the 4.9 GHz band or cease operation. We believe that with the regional planning process combined with frequency coordination, the goal of increased density of fixed link deployment can occur with rule changes regardless of mobile presence. We seek comment on this tentative conclusion.

    Power Limits

    The 4.9 GHz rules contain power output limits that depend on the channel bandwidth for both low power and high power transmitters. High power P-P and P-MP links may use directional antennas with gains greater than 9 dBi and up to 26 dBi with no reduction in conducted output power, but if antennas with a gain of more than 26 dBi are used, the maximum conducted output power and peak power spectral density must be reduced by the amount in decibels that the directional gain exceeds 26 dBi. The Commission imposed the antenna gain rule “in order to avoid interference from fixed operations to mobile operations.”

    In the Fifth FNPRM, the Commission sought recommendations for an effective radiated power (ERP) limit for high power, permanent and temporary fixed transmitters, and whether to impose a maximum ERP limit on point-to-point links. Going forward, we will discuss radiated power levels in the 4.9 GHz band in terms of EIRP, rather than ERP, because antenna gains in the 4.9 GHz band rules are conventionally specified in terms of gain relative to an isotropic reference (dBi). To make point-to-point use in the band more efficient, the Commission also sought comment on whether it should establish a different minimum gain for P-P transmitting antennas and, if so, what value of gain would be appropriate and what power reduction, if any, should be required.

    The NPSTC Plan does not address ERP limits, but it notes that § 101.143 of the Commission's rules specifies a formula for reducing the maximum EIRP for short path lengths and proposes “that the frequency coordinators use a similar reduction in maximum EIRP for short path lengths with formulas developed based on transmit powers allowed in this band.” The NPSTC Plan further recommends that for P-P links an antenna with a minimum gain of 26 dBi, a maximum of 5.5 degree beamwidth and a minimum 25 dB front-to-back ratio be required. The NPSTC Plan also recommends that frequency coordinators be allowed to impose tighter specifications for the antenna if that allows assignment of a channel that otherwise would cause interference. NPSTC states that equipment using “multiple modulation rates and/or MIMO [multiple-input and multiple-output] antenna technologies” is inefficient and proposes that “they normally not be allowed in the band.” NPSTC recommends that requests for higher EIRP levels only be granted under waiver and receive full coordination so that both frequency coordinators and RPCs can comment.

    The APCO Report argues for “increasing the size of the antennas supporting 4.9 GHz operations.” APCO states that “larger directional antennas (i.e. 4′ diameter and above) have more discriminatory “off-path” antenna patterns and FB (Front-to-Back) ratios which allow the coordinator to assign frequencies closer together and permit more systems to co-exist, interference-free, within a given frequency band.” APCO also contends that “there are cases where a larger antenna may allow the coordinator to assign a frequency to a system where a smaller antenna may not have an efficient enough antenna pattern.”

    Discussion. We propose to allow P-P transmitting antennas to operate with a minimum directional gain of 26 dBi, maximum 5.5 degree beamwidth and minimum 25 dB front-to-back ratio. Antenna physical size, or area, is related to antenna gain. Although the rules do not contain restrictions on physical antenna size, we believe this proposal will enable users to deploy larger directional antennas, as recommended in the APCO Report, and to produce narrower beam widths and more directional P-P links, which should enable co-channel users in congested areas to place links closer together and achieve greater frequency reuse. Moreover, the higher gain would increase the EIRP so that P-P links can cover longer distances, which could save users the expense of deploying multiple, low EIRP links. Further, the record indicates that several low cost antennas that meet these requirements are already available. We seek comment on the relative costs and benefits of this proposal. We invite commenters to provide additional information about these antennas and associated costs in the record and we seek comment on the levels of directional antenna gains that licensees are using today. We also seek comment about burdens that a change to the antenna gain rules would place on small entities, notwithstanding that we propose to grandfather existing P-P and P-MP installations from having to replace antennas.

    We seek comment on whether the rules should contain a maximum EIRP limit for directional links. Although the NPSTC Plan proposes no maximum EIRP, three commenters suggest power levels equivalent to maximum EIRP levels of 65.15 dBm for P-P and 55.15 dBm for P-MP to “promote the use of the band for longer range communications . . . , particularly in rural areas.” Accordingly, we seek comment on these EIRP limits. Since we noted above that the upper power limits need to be codified in the rules, we seek comment on whether these proposed power limits are adequate to meet the needs of regions whose users would deploy links with long path lengths in rural areas. We also seek comment on whether such an increase in maximum power levels for directional links creates any additional interference concerns and how it might affect the ability to coordinate additional links. Similarly, what effect might such an increase have on the ability for continued mobile operations in the band? We seek comment on whether emission mask M is sufficient, or whether a tighter emission mask should be imposed for these higher power operations. We seek further comment on other power suggestions in the record and how they would fit with the above proposals.

    Finally, we decline to propose restrictions on multiple modulation rates and MIMO antenna technologies as proposed by the NPSTC Plan. We agree with the City of New York that “Multiple Input Multiple Output (MIMO) technology is a key element of both the 802.11n standard and LTE standards. Rather than being less spectrally efficient, it is more so as it provides for increased throughput and range.” Similarly, multiple modulation rates are more spectrally efficient and offer licenses additional flexibility in the planning and operation of their systems.

    Polarization

    The Fifth FNPRM sought comment on requiring P-P links to use a specific polarization, e.g., horizontal or vertical, to reduce potential interference to other links or to portable or mobile devices. The Commission sought comment on the costs of changing an antenna's polarization and whether polarization diversity would increase throughput.

    Discussion. Given the mixed comment record, we decline to propose any polarization requirements in our rules. However, we still believe that polarization can be a tool to increase density of P-P links in a given area and to address cases of actual interference between two or more P-P links. We note that side-by-side co-channel P-P links with orthogonal (opposite) polarizations could operate with minimized interference because each receive antenna would reject signals of the opposite polarization. We are also encouraged that dual polarization together with polarization multiplexing can increase capacity in a P-P link, as Cambium suggests. As discussed above, we propose to allow regional plans submitted for Commission review pursuant to § 90.1211 to propose any polarization schemes for new applications within their regions as necessary to maximize frequency reuse, manage interference, and increase throughput. As part of the application frequency coordination process, frequency coordinators would be able to recommend a particular polarization for a proposed P-P link in those regions. We seek comment on this proposal.

    Deployment Reports, Construction Deadlines

    The Fifth FNPRM sought comment on whether to require 4.9 GHz licensees to file periodic deployment reports to better inform the Commission about usage of the band. The Commission indicated that reports could include information such as status of equipment development and purchase, including number of devices and users; site development, including use of existing towers; deployments and upgrades (commencement and completion), including site information and location; and applications in development or in use. The Commission also sought comment on reporting frequency.

    Discussion. Although a deployment report requirement had some support in the record, we agree with the opposing comments regarding burdens on licensees and decline to propose requiring deployment reports. In addition to imposing a burden, such reports would be superfluous given our database proposal discussed above, in which existing licensees would file certain additional information on their operating parameters.

    However, we propose to establish a one-year construction deadline for all 4.9 GHz licensees, with a corresponding construction reporting requirement. The current rules impose an 18-month construction deadline only on fixed P-P stations that are licensed on a site-by-site basis, and no construction deadline for base and temporary fixed stations. We believe that shortening the construction period to one year for all 4.9 GHz licenses will lead to more timely use of the spectrum and reduce the possibility of spectrum warehousing. Accordingly, we propose to require all 4.9 GHz geographic licensees to place at least one base or temporary fixed station in operation within 12 months of license grant and file a standard construction notification with the Commission. We also propose to reduce the construction period for fixed point-to-point stations from 18 months to 12 months. These proposed rule changes will also harmonize the construction deadlines for the 4.9 GHz band with the deadlines of § 90.155, which is the analogous rule for the majority of part 90 radio services. We note that we have received no objections to this construction deadline change. We seek comment on these proposals, on their relative costs and benefits, on the burdens that the proposed construction deadline would place on small entities, and on alternative solutions that would achieve the same goal.

    Eligibility, Shared Use, and Other Alternatives

    Currently, only entities providing public safety services are eligible for licenses in the 4.9 GHz band. Non-public safety entities—including CII entities—may use the 4.9 GHz spectrum by entering into sharing agreements with eligible public safety licensees, but only for “operations in support of public safety.” In light of the limited use of the band to date by public safety, the Fifth FNPRM sought comment on whether expanding eligibility to non-public safety users might lead to increased use and reduction in equipment costs that would benefit public safety. Specifically, the Commission sought comment on whether CII entities should be eligible to hold primary 4.9 GHz licenses, thus removing the requirement for a sharing agreement, and also whether the band should be opened to commercial users on a secondary or non-interfering basis subject to a shutdown mechanism to enable priority access by public safety entities. In response to the Fifth FNPRM, the NPSTC Plan proposed to extend primary 4.9 GHz eligibility to CII. More recently, other ex parte filers have recommended various secondary spectrum sharing approaches combined with maintaining priority status for public safety in the 4.9 GHz band.

    In this Sixth FNPRM, we seek to further discuss these alternative eligibility and spectrum sharing approaches and other alternatives for the band. We seek comment on four specific alternatives outlined below, and on whether the four alternatives or elements thereof could be combined. We also solicit comment on any other sharing approaches that would meet the Commission's goals for the band.

    Extending Eligibility to CII

    The NPSTC Plan proposes to expand eligibility to afford CII co-primary status with public safety in the 4.9 GHz band and allow CII entities immediate access to two five-megahertz channels (Channels 6 and 7). On the remaining channels in the band, NPSTC proposes to preserve public safety's licensing priority for three years, but would allow CII to seek access on a notice basis. Under the proposed notice procedure, a CII entity's application to use unoccupied channels would be put on public notice, and any public safety entity in the same geographic area as the CII entity's planned system would have 30 days to file an application for the same channels, in which case the public safety applicant would prevail. This notice process would expire after three years after the Commission's rules become effective, at which point public safety and CII would have equal access to all channels in the band with no required notice.

    The majority of commenters responding to both the Fifth FNPRM and the NPSTC Plan support expanding 4.9 GHz band eligibility to CII entities. APCO and FCCA/IAFC/IMSA assert that CII eligibility would enhance interoperability between utilities and public safety agencies during and immediately following major emergencies, although APCO cautions that CII use should be “carefully monitored to ensure that public safety needs are considered in every potential conflicting filing.” The Utilities Telecom Council (UTC) states that CII primary eligibility “could provide capacity and coverage for smart grid and other applications . . . [and] would promote investment in and more effective use of the spectrum.”

    Some public safety commenters oppose direct licensing of CII entities and advocate retaining the requirement that CII entities may only use the 4.9 GHz band pursuant to sharing agreements with public safety licensees. In response, Southern Company contends that “the current eligibility rules for the 4.9 GHz band do not correlate with marketplace or political realities,” because CII entities are “understandably reluctant to enter agreements whereby their investment in infrastructure, and their use of a vital communications resource, could be rendered worthless at any time, including when that resource is needed most.”

    Some commenters advocate expanding CII eligibility to include additional categories of potential users. The Enterprise Wireless Alliance (EWA) proposes extending 4.9 GHz band eligibility to “all private internal systems” that “have defined areas of operation not necessarily focused on population centers, often conducted in a campus-type environment that can be coordinated with public safety usage.” The Alarm Industry Communications Committee (AICC) argues that alarm companies should have primary access to the 4.9 GHz band in order to allow them “to more efficiently and rapidly gather and forward to PSAPs information about emergencies.”

    Discussion. We seek comment on whether offering CII co-primary status with public safety is likely to create incentives for increased investment in the 4.9 GHz band. The Commission has recognized that railroad, power, and petroleum entities use radio communications “as a critical tool for responding to emergencies that could impact hundreds or even thousands of people.” Extending eligibility to CII could encourage collaborative investment by public safety and CII users of the 4.9 GHz band to improve response to emergencies that affect both public safety and critical infrastructure. We seek comment on this approach, including its potential relative costs and benefits.

    We also seek comment on whether eligibility for CII entities should be conditioned on using the band to provide “public safety services” as that term is defined in Section 337(f)(1)(A) of the Communications Act of 1934, as amended. For example, API requests that CII entities be permitted to use the band for any purpose, not just in support of public safety. Would eliminating the requirement that the band be used for “public safety services” by CII users increase use of the band, lowering equipment costs and facilitating the other benefits of CII access to the band? Or would it unduly increase congestion? Considering the public safety focus of the 4.9 GHz band, should we limit CII use of the 4.9 GHz band to communications related to the protection of life, safety, and property, as opposed to general business purposes? If we maintain the requirement, how should the Commission ensure compliance by CII users (and what are the costs of doing so)? Given public safety's relatively modest use of 4.9 GHz spectrum to date, we think there is sufficient remaining spectrum in the band to accommodate both expanded use by public safety and CII co-primary use. Stated otherwise, we think the benefits of co-primary use of the band by both CII and public safety can be realized at slight or no cost to public safety. We seek comment on this characterization. Is there reason to elevate public safety communications in the band over other uses? If so, would preferential algorithms built into equipment ensure priority of public safety communications? How would that priority be achieved? Would such priority be sufficient to ensure that public safety traffic would not be interfered with? We seek comment on affording public safety priority over other users and how priority would be achieved.

    If we grant co-primary eligibility to CII entities without the need for a sharing agreement with a public safety entity, we seek comment on NPSTC's proposal to provide CII immediate, co-primary access to Channels 6 and 7 during the first three years, to establish a notice procedure for CII access to the remainder of the band during the three-year period, and to open up the entire band to CII thereafter. Should we consider alternative access arrangements, such as providing CII immediate access to Channels 12 and 13, which could be coupled with access to narrowband Channels 14-18 to create 15 megahertz of contiguous spectrum for CII to access on a co-primary basis? Should we exclude Channels 1-5 from CII eligibility in light of our proposal to dedicate this segment to public safety aeronautical mobile and robotic use? We seek comment on these options and solicit any alternative suggestions.

    We in turn seek comment on extending 4.9 GHz band co-primary eligibility to all private internal systems, as EWA requests. Would doing so be consistent with our core goal of supporting critical public safety needs? Similarly, we seek comment on extending primary eligibility to alarm companies as advocated by AICC. Does the fact that the Commission's recent review of ULS in another proceeding suggesting that certain frequencies designated for central alarm operations may be underutilized affect how we should approach this request? Finally, we note that the Commission's general approach to making spectrum available in recent years has leaned toward flexible use rather than allocations to specific industries. We seek comment on how granting CII entities eligibility for co-primary status is consistent with this approach. We also ask how CII entities' need for co-primary use of this band can be differentiated from the needs of other critical and safety-related industries that may seek access to this band in the future.

    Leasing

    In the 2003 4.9 GHz Third Report and Order, the Commission allowed non-public safety entities engaged in providing public safety-related services to be licensed in the 4.9 GHz band to support public safety operations. In 2004, the Commission permitted public safety licensees with “exclusive spectrum rights” to lease their spectrum to other public safety entities eligible for such a license authorization and to entities providing communications in support of public safety operations. Based on the record at that time, the Commission declined to permit public safety licensees to lease 4.9 GHz spectrum for commercial or non-public safety operations. Specifically, the Commission noted that commenters expressed concern that such leasing could face statutory barriers or result in abuse without the implementation of regulatory safeguards. In the Secondary Markets Order, the Commission also noted that allowing such leasing could be premature given the then-nascent state of “interruptible use” technology that would enable public safety licenses to immediately reclaim the use of any leased spectrum for public safety emergencies.

    Discussion. In this Sixth FNPRM, we seek to establish new licensing and service rules for the 4.9 GHz band that will spur investment and innovation while furthering public safety use of the band. We seek comment on whether these objectives could be facilitated by expanding the leasing alternatives available to public safety in the band. In particular, should we remove the current limitation and allow public safety licensees that have obtained exclusive spectrum rights in the 4.9 GHz band to lease spectrum capacity to CII or to commercial entities generally? Would such expanded leasing flexibility stimulate investment in equipment and networks that would benefit public safety and further our objectives for increased use of the band? Would such leasing opportunities present public safety entities with new potential revenue streams that could be used to increase investment in NG911 operations or to purchase new 4.9 GHz equipment? What rule changes, if any, would best facilitate bringing the economies of scope and scale that come with commercial use of a band to this public safety spectrum? How would a leasing alternative lead to increased use of the band compared to the current environment, where non-public safety entities can to enter into sharing agreements with public safety licensees? What are the relative costs and benefits of expanding leasing alternatives?

    We also seek comment on how best to ensure that public safety would retain priority access to 4.9 GHz spectrum in any commercial leasing framework. As noted above, the Commission cited a dearth of technology in 2004 that would support “interruptible” spectrum leasing. In light of the significant technological advances that have occurred since then, does technology now exist that would enable public safety to interrupt other spectrum users and reclaim leased spectrum capacity in emergencies? Should non-public safety entities that lease spectrum capacity have primary status because they entered agreements with specific public safety licensees? If so, how would public safety priority function?

    As noted above, in the Secondary Markets Order the Commission cited to comments expressing concern that the Communication Act might be a barrier to allowing public safety entities to lease spectrum that had been designated for public safety for non-public safety operations. Those comments suggested that because Section 337 of the Communications Act of 1934 defines “public safety services” as services that “are not made commercially available to the public by the provider,” the Commission could be limited in its ability to allow non-public safety services on bands designated for public safety services. However, Section 337's proscription on commercial operations is expressly limited to 24 megahertz of spectrum in the 700 MHz band, and there is no equivalent statutory limitation on the 4.9 GHz band. Section 90.1203 of our rules, which governs eligibility for 4.9 GHz licenses, incorporates the requirements and conditions set forth in § 90.523 of our rules, which in turn implements Section 337 of the Act, and provides that applications in this band are limited to operations in support of public safety. The Commission tentatively concludes that it has authority to modify § 90.1203 to allow public safety licensees to enter into leases for non-public safety or commercial uses in the 4.9 GHz band. We seek comment on this tentative conclusion. Are there any other potential jurisdictional barriers to adopting the rules proposed here?

    If we authorize expanded leasing by public safety in the 4.9 GHz band, should there be conditions or limitations on use of leased spectrum or expenditure of leasing revenues to safeguard against potential abuse? For example, should use of leased spectrum be limited to communications in support of public safety or should all communications be allowed regardless of whether they have a public safety nexus? Can or should we require public safety licensees that receive leasing revenues to invest such revenues solely for public safety purposes, e.g., for procurement of public safety equipment or maintenance and operational costs of the network? Would such a requirement be consistent with the Miscellaneous Receipts Act? Are there provisions of state or local law relating to use of funds by local public safety entities that the Commission should take into consideration here? How would compliance with such a requirement be audited and enforced?

    We seek comment on the relative costs and benefits of a commercial-leasing options vis-à-vis the CII co-primary option discussed above. Which option would bring the greatest innovation to the 4.9 GHz band? Which option would best facilitate the introduction of new, lower cost equipment? Which option would best empower public safety users—the case-by-case leasing to commercial entities where public safety users must sign off on each use or the ability of CII users to gain co-primary access to the spectrum without further public safety input? In short, which of these options would best serve our goals in increasing shared use of this band at the lowest cost? As noted above, given public safety's relatively modest use of 4.9 GHz spectrum to date, we think that allowing leasing would not impose any cost on public safety. Stated otherwise, we think the benefits of allowing more efficient spectrum use through leasing can be realized at no cost to public safety. We note that there are potential revenue streams from leasing, further supporting our judgement that allowing leasing would be produce benefits that exceed relative costs. We seek comment on this characterization.

    Two-Tiered Sharing on a Secondary Basis

    In the Fifth FNPRM, the Commission sought comment on whether to open 4.9 GHz band eligibility to commercial users on a secondary or non-interfering basis, while ensuring priority access for public safety entities by means of a sharing mechanism, such as dynamic access control based on a database similar to that used for TV white spaces devices. In response, some commenters support extending eligibility to commercial entities on a secondary basis. Carlson, AICC, Spectrum Bridge, SSC, and WISPA suggest that adopting an intelligent, dynamic database system as the sharing mechanism could allow non-public safety to use the 4.9 GHz band on a secondary basis. The APCO Report recommends that the Commission consider “build[ing] upon the `white space' model and apply[ing] it to the 4.9 GHz arena to spur development by increasing the potential customer base, including within the CII segment.” APCO recommends that the Commission study “[a]n innovative approach that incorporates essential features such as frequency coordination, with newer spectrum management tools that could expand the user base while preserving reliable access for public safety.”

    However, many public safety commenters oppose opening the band to commercial users, even on a secondary basis. These commenters express concern that because public safety generally requires greater lead time than commercial entities to secure funding to construct communications systems, commercial operations could foreclose public safety use and increase the risk of interference and congestion. Commenters also express skepticism about the feasibility of a using a dynamic database as a sharing mechanism. FCCA/IMSA/IAFC argue that “white space-style databases are not appropriate for the 4.9 GHz band” because they rely on equipment that employs geo-location or similar technologies, and “requiring 4.9 GHz devices to incorporate geo-location or similar capabilities will unnecessarily impede the development of equipment for the band.” Southern similarly “does not believe the database paradigm used for TV White Spaces . . . devices would be appropriate for the 4.9 GHz band,” citing the risk to public safety that could be caused by “loss of critical communications service due to database errors, malfunctions of the coordination system, or loss of connectivity with the database.”

    Discussion. As a third option, we seek comment on the feasibility of a two-tiered sharing approach, in which Tier 1 would consist of primary licensees in the band (including all incumbent users), while Tier 2 would allow other non-public safety users to access the band on a secondary basis, with safeguards to ensure priority and interference protection for Tier 1 operations. We seek comment on potential mechanisms that could facilitate two-tiered sharing in the 4.9 GHz band while protecting primary users.

    For example, could we implement Tier 2 secondary access to the 4.9 GHz band using frequency coordination and licensing procedures similar to those we are proposing for primary licensing? The public safety community has long relied on frequency coordination in other spectrum bands to protect mission-critical communications from interference. While this system has worked well in other bands, frequency coordination in the 4.9 GHz band would typically take place before deployment and does not take into account the dynamically changing environment of real-time spectrum usage. We seek comment on whether a frequency coordination approach to Tier 2 secondary use would provide sufficient flexibility to support dynamic spectrum use while protecting Tier 1 users. Would real-time coordination be feasible if we required Tier 2 users to provide digital identification and/or geo-location so that Tier 1 users could readily identify potential sources of interference to their systems? We seek comment on relative costs and benefits that a digital ID and/or geolocation requirement on Tier 2 users would have, especially for Tier 2 small businesses.

    We also seek comment on the feasibility of developing an automated database system to enable dynamic Tier 2 secondary use of the 4.9 GHz band while protecting Tier 1 operations. We acknowledge the concerns raised by commenters that “white-spaces” databases previously developed for commercial bands might not provide sufficient assurance of real-time protection for mission-critical public safety operations. We seek comment on what capabilities an automated system would need to support the public safety requirements of the 4.9 GHz band. Should the database be centralized or distributed? What would it cost to design, build, and operate such a system, and who should be responsible for such costs? What information would Tier 1 and Tier 2 users need to enter and update in the database to facilitate dynamic spectrum sharing? What would be the cost and burden of providing such information? How would an automated system communicate with users' devices to help minimize interference and facilitate registration, coordination, and dynamic access? What capabilities would be required to identify potentially interfering Tier 2 users in real time and to direct them to move to a non-interfering channel or to shut down? We seek comment on these issues and on alternative models for spectrum sharing that would achieve these goals. Beyond the upfront cost of designing, building and operating the automated database system, and recurring database maintenance costs—both necessary to enable dynamic Tier 2 secondary use—such dynamic spectrum sharing would appear to impose few costs on public safety because it would retain primary access to the spectrum as needed. These costs would be the costs of entering and updating information to the automated database. We seek comment on whether the benefits to secondary users would outweigh the upfront, recurring, and database entry relative costs, and any other appreciable costs that we may not have taken into account.

    Redesignation of the Band

    As this spectrum has been underutilized, we request comment on redesignating the 4.9 GHz band, wholly or partially, to support commercial wireless use. Are the bases for the Commission's decision in 2002 to allocate the entire band for public safety purposes still valid, or does the public interest now call for a change? For example, would the public interest be best served if this spectrum could be used for commercial applications, such as 5G, or would it be better to strike a balance between public safety and commercial uses? What are the relative costs and benefits of a commercial use of this spectrum as weighed against the band plan we propose above or the sharing use alternatives on which we seek comment? If only a portion of the band were to be redesignated, how should the band be divided between public safety and commercial use? If any or all of the spectrum is redesignated for commercial wireless purposes, should the Commission consider auctioning the redesignated spectrum, making licenses available on some other basis, or authorizing the spectrum for unlicensed use under part 15 of the Rules? We seek comment on any other alternatives to support commercial wireless use of the 4.9 GHz band. If the band were made available for licensed or unlicensed use, we seek comment on what the technical rules would be appropriate. Specifically, if the band were made available for licensed use, should we apply the power levels, emissions limits, and other technical requirements that are in the existing 4.9 GHz band technical rules, the Citizen's Broadband Radio Service (CBRS) as reflected in part 96 subpart E, or the technical rules for the AWS-3 spectrum as reflected in part 27 for the 1710-1780 MHz and 2110-2170 MHz bands? The CBRS rules assume time division duplex operation while the AWS-3 rules assume frequency division duplex operation, with each set of rules specifying separate technical requirements for base stations and mobile devices. If the band were made available for unlicensed use, we specifically invite comment on whether we should apply the same technical rules that exist for the U-NII band at 5150-5250 MHz under part 15 subpart E. If the Commission allows commercial use in all or part of the 4.9 GHz band, should it allow both mobile and fixed use? When considering whether to designate all or part of the band for commercial users, should the Commission consider designating the entire band in markets where there are no existing public safety 4.9 GHz facilities? In markets where there are public safety incumbents, should public safety use be limited to those incumbents or should a specified amount of the 4.9 GHz band be reserved for public safety use? If the Commission divides the band into commercial and public safety segments, would it need to establish guard bands or would in-band and out-of-band emission limits suffice to guard against harmful interference? Commenters should address how the loss of opportunities for public safety spectrum use in the 4.9 GHz band might affect congestion in other bands currently allocated for public safety use.

    In the event that the Commission redesignates any of the spectrum in the 4.9 GHz band, how should the Commission treat existing public safety systems operating in the band? Should public safety systems simply be grandfathered on their current frequencies? If so, should it be based on the frequencies licensed or those actually deployed and used? If the band is divided into public safety and commercial segments, should public safety licensees be required to relocate their facilities into the public safety segment? In the event the Commission elects to designate the entire band for commercial use, is there alternative spectrum to which existing public safety 4.9 GHz licensees can be relocated? If so, who should pay the relocation cost, e.g., if the Commission decides to auction the redesignated spectrum? Should auction proceeds be used to pay public safety's cost to relocate its systems? We seek comment on the relative costs and benefits of all of these options.

    Procedural Matters Ex Parte Presentations

    The proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. IRFA is set forth in Appendix C of the Sixth FNPRM. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Sixth FNPRM as set forth herein, and they should have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Sixth FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

    Initial Paperwork Reduction Act Analysis

    This document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995 (PRA). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    Ordering Clauses

    Accordingly, It is ordered, pursuant to sections 1, 4(i), 4(j), 4(o), 301, 303(b), 303(g), 303(r), 316, 332, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(o), 301, 303(b), 303(g), 303(r), 316, 332, and 403, that this Sixth Further Notice of Proposed Rulemaking is hereby adopted.

    It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Center, shall send a copy of this Sixth Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Parts 0, 2, and 90

    Organization and functions (Government agencies); Communications equipment; Radio; Reporting and recordkeeping requirements.

    Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 0, 2 and 90 as follows:

    PART 0—COMMISSION ORGANIZATION 1. The authority citation for part 0 continues to read as follows: Authority:

    Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted.

    2. Section 0.392 is amended by adding paragraph (k) to read as follows:
    § 0.392 Authority Delegated.

    (k) Certifies frequency coordinators; considers petitions seeking review of coordinator actions; and engages in oversight of coordinator actions and practices.

    PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

    4. Section 2.106, the Table of Frequency Allocations, is amended by revising page 41 to read as follows:
    § 2.106 Table of Frequency Allocations. BILLING CODE 6712-01-P EP07MY18.027 EP07MY18.028 EP07MY18.029 BILLING CODE 6712-01-C
    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 5. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    6. Section 90.175 is amended by removing paragraph (j)(22) and adding paragraph (k) to read as follows:
    § 90.175 Frequency coordinator requirements.

    (k) For frequencies in the 4940-4990 MHz band: See § 90.1209 of this chapter for further information.

    7. Section 90.1205 is amended by revising paragraph (c) to read as follows:
    § 90.1205 Permissible operations.

    (c) Aeronautical mobile and robotic station operations are permitted subject to § 90.1219.

    8. Section 90.1207 is revised to read as follows:
    § 90.1207 Licensing.

    (a) A 4945-4990 MHz band geographic license gives the licensee authority to operate temporary (1 year or less) fixed stations on any authorized channel in this band within its licensed area of operation. See § 90.1213. A 4945-4990 MHz band license will be issued for the geographic area encompassing the legal jurisdiction of the licensee or, in case of a nongovernmental organization, the legal jurisdiction of the state or local governmental entity supporting the nongovernmental organization.

    (1) A temporary fixed station is required to be individually licensed if:

    (i) International agreements require coordination;

    (ii) Submission of an environmental assessment is required under § 1.1307 of this chapter; or

    (iii) The station would affect areas identified in § 1.924 of this chapter.

    (2) Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.

    (b) Subject to § 90.1209, base stations and mobile units (including portable and handheld units) in the 4945-4990 MHz band are required to be licensed on a site-by-site basis. All existing licensees that operate such stations shall seek licenses for such stations in the Commission's Universal Licensing System database by filing new or modification applications within one year after the Public Safety and Homeland Security Bureau and the Wireless Telecommunications Bureau announce by public notice that the database is ready to accept such applications. Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.

    (c) Permanent fixed point-to-point transmitters and receivers, permanent fixed point-to-multipoint transmitters and fixed receivers in the 4945-4990 MHz band must be licensed individually on a site-by-site basis. All existing licensees that operate such stations shall seek individual licenses for such stations in the Commission's Universal Licensing System database by filing new applications within one year after the Public Safety and Homeland Security Bureau and the Wireless Telecommunications Bureau announce by public notice that the database is ready to accept such applications. Primary permanent fixed point-to-point and point-to-multipoint transmitters must use directional antennas with gains equal to or greater than 26 dBi. All such stations in the 4945-4990 MHz band are accorded primary status.

    (d) A 4940-4945 MHz license gives the licensee authority to operate aeronautical mobile or robotic stations subject to § 90.1219 on any authorized channel in this band within its licensed area of operation. See § 90.1213. Geographic area licenses and individually licensed stations issued before the effective date of this rule that use spectrum overlapping or within the 4940-4945 MHz band segment are grandfathered.

    (e) Existing 4940-4990 MHz band licenses as of the effective date of this rule are grandfathered from revisions to § 90.1215(a)(2).

    9. Section 90.1209 is amended by revising paragraphs (b) through (d), and adding paragraph (e) to read as follows:
    § 90.1209 Policies governing the use of the 4940-4990 MHz band.

    (b) Each application for a new frequency assignment or for a change in existing facilities must include a showing of frequency coordination. A database of licenses is available at http://wireless.fcc.gov/uls. Frequency coordinators and potential applicants should examine this database before seeking station authorization, and make every effort to ensure that their fixed and base stations operate at a location, and with technical parameters, that will minimize the potential to cause and receive interference. Licensees of stations suffering or causing harmful interference are expected to cooperate and resolve this problem by mutually satisfactory arrangements. If licensees are unable to do so, frequency coordinators may adjudicate such matters and recommend solutions to the Commission. The Commission may impose restrictions including specifying the transmitter power, antenna height, or area or hours of operation of the stations concerned. Within one day of making a frequency recommendation, the lead frequency coordinator must send a copy of the application to other certified frequency coordinators. Concurrently, the lead frequency coordinator must send a copy of the application to the adjacent 700 MHz Regional Planning Committee where the signal at the region border exceeds −109 dBW/m2/5 MHz.

    (c) Licensees will make every practical effort to protect radio astronomy operations as specified in § 2.106, footnote US385 of this chapter.

    (d) Licensees of base or temporary fixed stations must place at least one such station in operation within twelve (12) months of the license grant date, or the license cancels automatically as of the expiration of such twelve-month period, without specific Commission action. Fixed point-to-point and point-to-multipoint stations which are licensed on a site-by-site basis must be placed in operation within twelve (12) months of the grant date or the authorization for that station cancels automatically as of the expiration of such twelve-month period, without specific Commission action.

    (e) Temporary fixed point-to-point stations may only be operated for thirty days maximum over a given path over a one-year time frame.

    10. Section 90.1211 is amended by revising paragraph (a), (b)(4), and (c) and adding paragraph (d) to read as follows:
    § 90.1211 Regional plan.

    (a) To facilitate the shared use of the 4.9 GHz band, each region may submit a plan on guidelines to be used for sharing the spectrum within the region.

    (b) * * *

    (4) A description of the coordination procedures for permanent fixed point-to-point and point-to-multipoint stations, base stations, temporary fixed stations, and mobile operations. The procedures shall include, but are not limited to, mechanisms for incident management protocols, interference avoidance, and interoperability.

    (c) Regional plans may vary from the band plan in the following areas:

    (1) Limit channel aggregation to 20 megahertz bandwidth.

    (2) Designate one or more channels for specialized use.

    (3) Place limits on the use of point-to-point links in urban areas or impose more stringent limits on antenna gain, maximum conducted output power, power spectral density, or other technical parameters of point-to-point systems relative to the limits of § 90.1215.

    (4) Require polarization for point-to-point links.

    (d) Regional plans may be modified by submitting a written request, signed by the regional planning committee, to the Chief, Public Safety and Homeland Security Bureau. The request must contain the full text of the modification, and a certification that all eligible entities had a chance to participate in discussions concerning the modification and that any changes have been coordinated with adjacent regions.

    11. Section 90.1213 is revised to read as follows:
    § 90.1213 Band plan.

    (a) Upon the effective date of this rule, Channel numbers 1 through 5 are aggregated for a channel bandwidth of 5 MHz and may be subsequently licensed for use only in accordance with § 90.1219 of this chapter; any existing operations on these channels prior to the effective date of this rule are grandfathered. Channel numbers 6 through 13 are 5 MHz bandwidth channels and Channel numbers 14 through 18 are 1 MHz bandwidth channels. The following channel center frequencies are permitted to be aggregated for channel bandwidths of 5, 10, 15 or 20 MHz as described in paragraph (b) of this section. Channel numbers 14 through 18 should be used for narrow bandwidth operations and should be used in aggregations only if all other 5 MHz channels are blocked.

    Center frequency
  • (MHz)
  • Bandwidth
  • (MHz)
  • Channel Nos.
    4942.5 5 1-5 4947.5 5 6 4952.5 5 7 4957.5 5 8 4962.5 5 9 4967.5 5 10 4972.5 5 11 4977.5 5 12 4982.5 5 13 4985.5 1 14 4986.5 1 15 4987.5 1 16 4988.5 1 17 4989.5 1 18

    (b) The following tables list center frequencies to be licensed for aggregated channels only. A license may contain any combination of bandwidths from aggregated channels provided that the bandwidths do not overlap. The bandwidth edges (lower and upper frequencies) are provided to aid in planning.

    (1) 5 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4942.5 1 to 5 * 4940 4945 4947.5 6 4945 4950 4952.5 7 4950 4955 4957.5 8 4955 4960 4962.5 9 4960 4965 4967.5 10 4965 4970 4972.5 11 4970 4975 4977.5 12 4975 4980 4982.5 13 4980 4985 4987.5 14 to 18 ** 4985 4990 * Licensees for these channels granted after the effective date of this rule may use these channels only in accordance with § 90.1219 of this chapter. ** Licensees should avoid using these channels in aggregations unless all other channels are blocked.

    (2) 10 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4950 6 & 7 4945 4955 4955 7 & 8 4950 4960 4960 8 & 9 4955 4965 4965 9 & 10 4960 4970 4970 10 & 11 4965 4975 4975 11 & 12 4970 4980 4980 12 &13 4975 4985 4985 13 to 18* 4980 4990 * Licensees should avoid using these channels in aggregations unless all other channels are blocked.

    (3) 15 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4952.5 6 to 8 4945 4960 4957.5 7 to 9 4950 4965 4962.5 8 to 10 4955 4970 4967.5 9 to 11 4960 4975 4972.5 10 to 12 4965 4980 4977.5 11 to 13 4970 4985 4982.5 12 to 18 * 4975 4990 * Licensees should avoid using these channels in aggregations unless all other channels are blocked.

    (4) 20 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4955 6 to 9 4945 4965 4960 7 to 10 4950 4970 4965 8 to 11 4955 4975 4970 9 to 12 4960 4980 4975 10 to 13 4965 4985 4980 11 to 18 * 4970 4990 * Licensees should should avoid using these channels in aggregations unless all other channels are blocked.

    (5) 30 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4960 6 to 11 4945 4975 4965 7 to 12 4950 4980 4970 8 to 13 4955 4985 4975 9 to 18 * 4960 4990 * Licensees should avoid using these channels in aggregations unless all other channels are blocked.

    (6) 40 MHz bandwidth aggregation:

    Center
  • frequency
  • (MHz)
  • Channel
  • Nos.
  • employed
  • Lower
  • frequency
  • (MHz)
  • Upper
  • frequency
  • (MHz)
  • 4965 6 to 13 4945 4985 4970 7 to 18 * 4950 4990 * Licensees should avoid using these channels in aggregations unless all other channels are blocked.
    12. Section 90.1215 is amended by revising paragraphs (a)(1) and (2) to read as follows:
    § 90.1215 Power limits.

    (a)(1) The maximum conducted output power should not exceed:

    Channel
  • bandwidth
  • (MHz)
  • Low power
  • maximum
  • conducted
  • output power
  • (dBm)
  • High
  • power
  • maximum
  • conducted
  • output
  • power
  • (dBm)
  • 1 7 20 5 14 27 10 17 30 15 18.8 31.8 20 20 33 30 21.8 34.8 40 23 36

    (2) High power devices are also limited to a peak power spectral density of 21 dBm per one MHz. High power devices using channel bandwidths other than those listed above are permitted; however, they are limited to peak power spectral density of 21 dBm/MHz. If transmitting antennas of directional gain greater than 9 dBi are used, both the maximum conducted output power and the peak power spectral density should be reduced by the amount in decibels that the directional gain of the antenna exceeds 9 dBi. However, high power point-to-point transmitting antennas (both fixed and temporary-fixed rapid deployment) shall operate with minimum directional gain of 26 dBi, maximum 5.5 degree beamwidth and 25 dB front-to-back ratio. For point-to-point systems, the maximum equivalent isotropically radiated power (EIRP) is 65.15 dBm. High power point-to-multipoint operations (both fixed and temporary-fixed rapid deployment) may employ transmitting antennas with directional gain exceeding 26 dBi. For point-to-multipoint systems, the maximum EIRP is 55.15 dBm. Frequency coordinators may recommend reduction to the EIRP on a case-by-case basis, through reduction of the maximum conducted output power, spectral density, and/or antenna gain. Further, under § 90.1211(c)(3) thorough (4), Regional Planning Committees may recommend alternate lower limits to the allowed antenna gain, maximum conducted output power, or power spectral density of point-to-point systems.

    13. Section 90.1219 is added to Subpart Y to read as follows:
    § 90.1219 Aeronautical mobile and robotic operation.

    Entities eligible pursuant to § 90.1203(a) may conduct manned aeronautical mobile and robotic terrestrial operations on Channels 1 through 5 (4940-4945 MHz) to transmit video payload on a primary basis to terrestrial services under the following restrictions.

    (a) Airborne use of these channels is limited to aircraft flying at or below 457 meters (1500 feet) above ground level. Fixed wing aircraft may use these channels at altitudes exceeding 457 meters above ground level as necessary to comply with 14 CFR 91.119(b) through (c).

    (b) Licensees may use only low power devices as defined by § 90.1215 that use Emission Mask L as defined by § 90.210(l) for aeronautical mobile use.

    (c) Licensees may use only low power devices as defined by § 90.1215 for robotic applications.

    (d) The applicant shall provide a description of proposed operation to demonstrate that the proposed aeronautical mobile operations protect radio astronomy operations and terrestrial services from interference.

    (e) Aeronautical mobile and robotic applications must be approved in writing by the 700 MHz Regional Planning Committee or the National Regional Planning Council as part of the frequency coordination Regional Planning Committee review process before the coordinator can submit the application to the Commission.

    (f) Aeronautical mobile operations are prohibited within 80.5 kilometers (50 miles) of radio astronomy sites listed in § 2.106 US385 or US131. The coordinates to be used for the Allen Telescope Array are 40° 49' 01” North latitude, 121° 28' 12” West longitude. An applicant for aeronautical mobile use whose geographic boundaries fall within 80.5 kilometers of any of these radio astronomy sites may request a waiver, but shall certify that it has served a copy of the application on affected radio astronomy observatories.

    (g) The Commission has the discretion to impose special conditions and operating restrictions on individual licenses as necessary to reduce risk of interference to radio astronomy operations and terrestrial services.

    (h) Transmissions in the 4940-4990 MHz band to or from unmanned aerial systems are prohibited.

    [FR Doc. 2018-09416 Filed 5-4-18; 8:45 am] BILLING CODE 6712-01-P
    83 88 Monday, May 7, 2018 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities; Comment Request: National Universal Product Code (NUPC) Database AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is an extension, without change, of a currently approved collection for the maintenance of a central repository containing information about authorized foods in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), as approved by various WIC State agencies.

    DATES:

    Written comments must be received on or before July 6, 2018.

    ADDRESSES:

    Comments may be sent to: Kurtria Watson, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 524, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Kurtria Watson at 703-305-2196 or via email to [email protected] Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Kurtria Watson at 703-605-4387.

    SUPPLEMENTARY INFORMATION:

    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 of the proposed collection of information, including the validity of the methodology and assumptions that were used; (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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Title: National Universal Product Code (NUPC) Database.

    Form Number: N/A.

    OMB Number: 0584-0552.

    Expiration Date: August 31, 2018.

    Type of Request: Extension, without change, of a currently approved collection.

    Abstract: The Special Supplemental Nutrition Program for Women, Infants and Children (WIC), (Pub. L. 109-85) provides low-income pregnant, breastfeeding, and postpartum women, infants, and children up to age five with nutritious supplemental foods, nutrition education, including breastfeeding promotion and support, and referrals to health and social services. The WIC Program is administered by the USDA Food and Nutrition Service (FNS). FNS provides grant funding and issues regulations which are utilized by WIC State agencies to operate the WIC Program and distribute benefits through local WIC clinics. The program operates throughout the 50 States, the District of Columbia, Guam, Puerto Rico, American Samoa, Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, and in 34 Indian Tribal Organizations.

    The reporting and record-keeping associated with WIC State agencies and their management of the NUPC database is not included in this burden calculation. Burden hours associated with WIC State agencies and their management of the NUPC database is included in the burden calculation associated with the WIC program regulations, OMB Control Number 0584-0043.

    WIC Regulations at 7 CFR part 246 require State agencies to authorize eligible foods for their WIC food list. Under these regulations, State agencies must review food products for eligibility in accordance with Federal regulations and State agency policies. State agencies are not required to authorize all food products eligible under federal regulations, but generally select foods based on factors such as cost, availability and acceptability to participants. After review, the State agency develops a list of food items available for WIC participants for purchase. This food list is known as the Authorized Products List (APL). State agencies require authorized vendors (i.e., stores authorized to provide WIC foods) to ensure only approved food items are purchased. In State agencies that have transitioned to Electronic Benefit Transfer (EBT) systems, authorized vendors must program their point of sale systems to identify WIC approved foods and their associated Universal Product Code (UPC) or Price Look-Up (PLU) code as individual products are scanned at the checkout. Vendors in State agencies that have not transitioned to EBT rely on their checkout clerks to ensure only authorized WIC products are approved for purchase.

    WIC State agencies operating EBT systems provide their authorized vendors with an electronic file containing the State agency's current list of authorized foods. As products are scanned at the checkout lane, the UPC or PLU is matched to the State specific APL. Food items matching the APL, and which are presented in quantities less than or equal to the remaining benefit balance associated with the participant's WIC EBT card, are approved for purchase. Unmatched items, or items in excess of the available account balance, may not be purchased with WIC benefits.

    The Healthy, Hunger-Free Kids Act of 2010 directed the Secretary of Agriculture to establish a National Universal Product Code (NUPC) database for use by all WIC State agencies as they implement EBT statewide. As a result of this legislation, FNS expanded the number of data elements contained in the existing NUPC database while simultaneously reducing the burden on WIC State agency employees by assembling food product information in an easily accessible repository. NUPC database modifications and expansion activities have allowed for the storage and retrieval of additional data elements for each WIC authorized food to include: Nutrition facts panel information, ingredients, special processing practices (i.e., Kosher or Halal), and a free form comments field. The NUPC retained all previously used product identifier fields. Responsibility for populating the NUPC database resides with an independent contractor who serves as the single point of entry for all information entering the NUPC database. This contractor ensures NUPC data is captured with a high level of accuracy while preserving data integrity in a standardized format. The NUPC database provides all WIC State agencies with access to a central repository containing comprehensive information about authorized WIC foods. State agencies may choose to use the NUPC database to create an initial list of authorized foods eligible for redemption by WIC Program participants. Subsequently, State agencies may use the NUPC database to maintain their list of authorized foods, and to create an APL for distribution to authorized vendors when operating in the EBT environment.

    Affected Public: Businesses or Other For Profit Organizations. Respondent groups identified include: (1) Food Manufacturers and Distributors; (2) Authorized Vendors.

    Estimated Number of Respondents: The total estimated number of respondents is 360. This includes 240 food manufacturers or distributors and 120 authorized vendors.

    Estimated Number of Responses per Respondent: 3.33. The 240 food manufacturers or distributors will be asked to provide product information in electronic format (.doc, .xls, .pdf). All responses are voluntary. FNS estimates that each of the food manufacturers or distributors will be asked to provide product information 4 times per year on average and that each of the 120 authorized vendors will be asked to provide product information 2 times per year on average.

    Estimated Total Annual Responses: The total number of responses is estimated to be 1,200. FNS estimates food manufacturers or distributors will be asked to respond a total of 960 times per year (240 food manufacturers or distributors × 4 responses per year each = 960). FNS estimates authorized vendors will be asked to respond a total of 240 times per year (120 authorized vendors × 2 responses per year each = 240). All responses are voluntary.

    Estimated Time per Response: The estimated time per response varies by type of respondent. FNS expects all respondents will expend 12 hours per respondent per year to develop, maintain, and troubleshoot the electronic systems for use in transmitting information. The estimated time required to develop, maintain, and troubleshoot electronic systems is amortized over the expected number of responses. FNS also expects all respondents will expend 2 seconds per response to transmit information to FNS electronically. Since the time required to actually transmit the information to FNS is considered negligible (total of 40 minutes per year for all respondents), it was omitted from the burden calculation. FNS expects that food manufacturers or distributors will expend 6 hours per response to gather and format the requested information. Authorized vendors are expected to expend 1 hour per response to gather and format the requested information. The estimated time per response for food manufacturers or distributors is expected to be 9 hours per response ((12 hours per year/4 responses per year) + 6 hours per response = 9 hours per response). The estimated time per response for authorized vendors is expected to be 7 hours per response ((12 hours per year/2 responses per year) + 1 hour per response = 7 hours per response).

    Estimated Total Annual Burden on Respondents: 10,320 hours. The table below provides an estimated total annual burden for each type of respondent:

    Respondent Estimated
  • number of
  • respondents
  • Response
  • annually per
  • respondent
  • Total annual
  • responses
  • Estimated
  • average
  • number
  • of hours
  • per response
  • Estimated
  • total annual
  • burden
  • (hours)
  • Food Manufacturers and Distributors 240 4 960 9 8,640 Authorized Vendors 120 2 240 7 1,680 Total 360 3.33 1,200 8.6 10,320
    Dated: April 27, 2018. Brandon Lipps, Administrator, Food and Nutrition Service.
    [FR Doc. 2018-09625 Filed 5-4-18; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-28-2018] Foreign-Trade Zone (FTZ) 37—Orange County, New York; Notification of Proposed Production Activity; Takasago International Corp. (U.S.A.) (Fragrances); Harriman, New York

    Takasago International Corp. (U.S.A.) (Takasago) submitted a notification of proposed production activity to the FTZ Board for its facility in Harriman, New York. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on April 30, 2018.

    Takasago already has authority to produce fragrances within Site 10 of FTZ 37. The current request would add additional foreign status components of essential oils and aromatic chemicals to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status components described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Takasago from customs duty payments on the foreign-status components used in export production. On its domestic sales, for the foreign-status components noted below, Takasago would be able to choose the duty rate during customs entry procedures that applies to fragrances (duty-free). Takasago would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The materials/components sourced from abroad include: Decanoyl and Octanoyl Glycerides; Beeswax Absolute; Cinnamyl Isovalerate; Camphene; Farnesene; Galbanolene Super (Ethyl Citrate); Ocimene; Dimethyl Benzyl Carbinol; Lily Propanol; Phenyl Ethyl Methyl Ethyl Carbinol; Grapefruit Pentanol; Styrallyl Alcohol; Isobutyl Benzyl Carbinol; Diola; Woody Epoxide; Ocimene Oxirane; Rhubarb Oxirane; Caryophyllene Oxide; Citral Dimethyl Acetal Extra; Elintaal Forte; Floropal; Hyacinth Body; Hydratropic Aldehyde; Hydratropic Aldehyde Dimetheyl Acetal; Indoletal; Karanal; Methyl Pamplemousse; Octacetal; Phenyl Acetald Glyceryl Acetal; Syvertal; Phenyl Ethyl Acetal; Alpha-Amyl Cinnamic Aldehyde; 2(1)-Orris Butanal; Cinnamic Aldehyde; Cyclovertal; Muguet Carbaldehyde; Dupical; Floralozone; Hexyl Cinnamic Aldehyde; Hydroxyambran; Iso Cyclo Citral; Alpha-Methyl Cinnamic Aldehyde; Mefranal; Perilla Aldehyde; Para-Tolyl Aldehyde; Ligustral; Vernaldehyde; Hinokitiol Crystal; Methyl Lavender Ketone; Citronellyl Isovalerate; Para-Cresyl Isobutyrate; Dimethyl Benzyl Carbinyl Butyrate; Geranyl Butyrate; Isoamyl Butyrate; Isoamyl Isobutyrate; Isobutyl Lignate; Linalyl Butyrate; Methyl Isovalerate; Phenyl Ethyl Pivalate; Methyl Cinnamate; Phenyl Ethyl Cinnamate; Benzyl Cinnamate; Diethyl Tartrate; Methyl Jasmonate; Ethyl 3-Hydroxy Butyrate; Ethyl Levulinate; Ethyl Decadienoate; Methyl Dihydrojasmonate; Allyl Amyl Glycolate; Berry Hexanoate; Aurantiol Pure; Agrumea; Lyrame; Methional; Corps Pamplemousse; Dibutyl Sulfide; Dimethyl Sulfide; 2-Methyl-4-Propyl-1 3-Oxathiane; Ambrettolide; Gamma-Decalactone; Jasmolactone; Delta-Octalactone; Cyclohexyl Lactone; Delta-Decalactone; Gamma-Decalactone; Cyclopentadecanolide; Gamma-Heptalactone; Gamma-Hexalactone; Jasmin Lactone; Lactone of CIS Jasmone; Lactone of Dihydro Jasmone; Musk R-1; Delta-Nonalactone; Delta-Undecalactone; Gamma-Undecalactone; Gamma-Valerolactone; Whiskey Lactone (Methyl Octalactone); Gamma-Nonalactone; Methyl Nonyl Acetaldehyde; Watermelon Ketone; Dulcinyl; Galaxolide Pure; Galaxolide 50% Dipropylene Glycol; Methyl Dioxolan; Woody Dioxolane; Spirambrene; Floropal; Glycolierral; Grisalva; Gyrane; Ocean Propanal; Floral Pyranol; Maltol Isobutyrate; Magnolan; 10-Oxahexadecanolide; Pelargene; Rose Oxide; Reseda Body; Laevo Rose Oxide; Isobutyl Quinoline; Isopropyl Quinoline; 2-Isobutyl Quinoline; Marine Pyridine; Mandarin Oil Cravo Brazil; Orange Juice Carbonyls Low Valencene; Orange Oil Terpenes; Neroli Oil; Orange Isolate; Linalool; Orange Flower Absolute Carbon Dioxide; Orange Sweet Oil; Orange Leaf Water Tunisia Absolute Natural; Tangerine Oil; Orange Bigarade (Bitter) Molecular Distilled; Peppermint Oil Chinese Natural; Benzoin Resin Siam Natural; Benzoin Resin Sumatra Super Natural; Elemi Gum; Ginger Oil Indian; Hydrocarboresin; Myrrh Resin; Myrrh Resin Coeur; Oakmoss Absolute; Opoponax Oil; Styrax Oil; Tolu Balsam (Benzoic Acid); Nutmeg Oil; Ambroxide; Iris Pallida; and, Opoponax Resin Natural Extract (duty rate ranges from duty-free to 6.5%, as well as 8.8 ¢/kg).

    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 18, 2018.

    A copy of the notification 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 Juanita Chen at [email protected] at 202-482-1378.

    Dated: May 2, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-09635 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-66-2018] Foreign-Trade Zone 29—Louisville, Kentucky; Application for Subzone; Amcor Flexibles LLC; Shelbyville, Kentucky

    An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Louisville & Jefferson County Riverport Authority, grantee of FTZ 29, requesting subzone status for the facility of Amcor Flexibles LLC, located in Shelbyville, Kentucky. 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 May 1, 2018.

    The proposed subzone site (14.364 acres) is located at 6850 Midland Industrial Drive, Shelbyville, Shelby County. Limited production activity was authorized for the company within FTZ 29 on May 11, 2017 (Doc. B-7-2017). The proposed subzone would be subject to the existing activation limit of FTZ 29.

    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 18, 2018. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 2, 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: May 1, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-09634 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Subsidy Programs Provided by Countries Exporting Softwood Lumber and Softwood Lumber Products to the United States; Request for Comment AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) seeks public comment on any subsidies, including stumpage subsidies, provided by certain countries exporting softwood lumber or softwood lumber products to the United States during the period July 1, 2017, through December 31, 2017.

    DATES:

    Comments must be submitted within 30 days after publication of this notice.

    ADDRESSES:

    See the Submission of Comments section below.

    FOR FURTHER INFORMATION CONTACT:

    James Terpstra or Brendan Quinn, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3965 or (202) 482-5848, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On June 18, 2008, section 805 of Title VIII of the Tariff Act of 1930 (the Softwood Lumber Act of 2008) was enacted into law. Under this provision, the Secretary of Commerce is mandated to submit to the appropriate Congressional committees a report every 180 days on any subsidy provided by countries exporting softwood lumber or softwood lumber products to the United States, including stumpage subsidies.

    Commerce submitted its last subsidy report on December 16, 2017. As part of its newest report, Commerce intends to include a list of subsidy programs identified with sufficient clarity by the public in response to this notice.

    Request for Comments

    Given the large number of countries that export softwood lumber and softwood lumber products to the United States, we are soliciting public comment only on subsidies provided by countries the exports of which accounted for at least one percent of total U.S. imports of softwood lumber by quantity, as classified under Harmonized Tariff Schedule code 4407.1001 (which accounts for the vast majority of imports), during the period July 1, 2017, through December 31, 2017. Official U.S. import data published by the United States International Trade Commission Tariff and Trade DataWeb indicate that four countries (Brazil, Canada, Germany and Sweden) exported softwood lumber to the United States during that time period in amounts sufficient to account for at least one percent of U.S. imports of softwood lumber products. We intend to rely on similar previous six-month periods to identify the countries subject to future reports on softwood lumber subsidies. For example, we will rely on U.S. imports of softwood lumber and softwood lumber products during the period January 1, 2018 through June 30, 2018, to select the countries subject to the next report.

    Under U.S. trade law, a subsidy exists where an authority: (i) Provides a financial contribution; (ii) provides any form of income or price support within the meaning of Article XVI of the GATT 1994; or (iii) makes a payment to a funding mechanism to provide a financial contribution to a person, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments, and a benefit is thereby conferred.1

    1See section 771(5)(B) of the Tariff Act of 1930, as amended.

    Parties should include in their comments: (1) The country which provided the subsidy; (2) the name of the subsidy program; (3) a brief description (no more than 3-4 sentences) of the subsidy program; and (4) the government body or authority that provided the subsidy.

    Submission of Comments

    As specified above, to be assured of consideration, comments must be received no later than 30 days after the publication of this notice in the Federal Register. All comments must be submitted through the Federal eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2018-0002, unless the commenter does not have access to the internet. The materials in the docket will not be edited to remove identifying or contact information, and Commerce cautions against including any information in an electronic submission that the submitter does not want publicly disclosed. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF formats only.

    Commenters who do not have access to the internet may submit the original and one electronic copy of each set of comments by mail or hand delivery/courier.

    All comments should be addressed to Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, Room 18022, Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230.

    Dated: May 1, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-09631 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-879] Polytetrafluoroethylene Resin From India: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polytetrafluoroethylene (PTFE) resin from India is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2016, through June 30, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable May 7, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Nicholas Czajkowski or Mark Kennedy, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1395 or (202) 482-7883, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 26, 2017.1

    1See Polytetrafluoroethylene Resin from India and the People's Republic of China: Initiation of Less-Than-Fair-Value Investigations, 82 FR 49587 (October 26, 2017) (Initiation Notice).

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.2 Accordingly, the revised deadline for the preliminary determination of this investigation became March 12, 2018.3 Subsequently, on February 20, 2018, Commerce postponed the preliminary determination of this investigation and the revised deadline is now April 30, 2018.4 For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.5 A list of topics addressed in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/.

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    3Id.

    4See Polytetrafluoroethylene Resin from India: Postponement of Preliminary Determination of Antidumping Duty Investigation, 83 FR 8423 (February 27, 2018).

    5See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polytetrafluoroethylene Resin from India” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is PTFE resin from India. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,6 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (scope).7 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. For a summary of the product coverage comments and rebuttal responses submitted to the record for this investigation, and accompanying discussion and analysis of all comments timely received, see the Preliminary Scope Decision Memorandum.8 See the scope in Appendix I to this notice. The scope case briefs were due on April 9, 2018, 30 days after the publication of PTFE Resin from India CVD. 9 There will be no further opportunity for comments on scope-related issues.10

    6See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    7See Initiation Notice.

    8See Memorandum, “Polytetrafluoroethylene Resin from India and the People's Republic of China: Scope Comments Decision Memorandum for the Preliminary Determinations,” dated February 28, 2018 (Preliminary Scope Decision Memorandum).

    9 The scope case briefs were due 30 days after the publication of Polytetrafluoroethylene Resin from India: Preliminary Affirmative Countervailing Duty Determination, 83 FR 9842 (March 8, 2018) (PTFE Resin from India CVD), which was Saturday, April 7, 2018. See the Preliminary Scope Decision Memorandum at 2. Therefore, the actual deadline for the scope case briefs was Monday, April 9, 2018. See 19 CFR 351.303(b)(1) (“For both electronically filed and manually filed documents, if the applicable due date falls on a non-business day, the Secretary will accept documents that are filed on the next business day.”). The deadline for scope rebuttal briefs was Monday, April 16, 2018.

    10See Preliminary Scope Decision Memorandum at 3 (“Parties should include all arguments about scope-related issues in the scope case and scope rebuttal briefs. Commerce does not intend to permit arguments about scope-related issues in the investigation-specific case and rebuttal briefs regarding other issues.”)

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying Commerce's preliminary determination, see the Preliminary Decision Memorandum.

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually examined, excluding all rates that are zero, de minimis, or determined entirely under section 776 of the Act.

    In this investigation, Commerce has preliminarily determined a calculated rate for Gujarat Fluorochemicals Limited, the one mandatory respondent in this investigation, that is not zero, de minimis, or based entirely on facts otherwise available. Consequently, the rate calculated for this respondent is also assigned as the rate for all-other producers and exporters in this investigation.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/producer Estimated weighted-
  • average
  • dumping
  • margin
  • (percent ad valorem)
  • Cash deposit rate
  • (adjusted for export subsidy offset)
  • (percent ad valorem)
  • Gujarat Fluorochemicals Limited 18.49 11 17.16 All-Others 18.49 12 17.16
    Suspension of Liquidation

    11See Polytetrafluoroethylene Resin from India: Preliminary Affirmative Countervailing Duty Determination, 83 FR 9842 (March 8, 2018) and accompanying Preliminary Decision Memorandum at “Programs Preliminarily Determined to Be Countervailable” (specifically, Export Promotion of Capital Goods Scheme (EPCGS); Advance Authorization Program (AAP) aka Advance License Program (ALP); and Status Holders Incentive Scrip (SHIS)).

    12Id.

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, as discussed below. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, adjusted for export subsidies, as follows: (1) The cash deposit rate for the respondent listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination, adjusted for export subsidies; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise, adjusted for export subsidies; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin, adjusted for export subsidies.

    For cash deposits, Commerce normally adjusts the estimated weighted-average dumping margins by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce has preliminarily made an affirmative determination that there are countervailable export subsidies, Commerce has offset the estimated weighted-average dumping margin by the appropriate CVD rate attributable to export subsidies. Any such cash deposit rate may be found in the Preliminary Determination section above.

    Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting estimated antidumping duty cash deposits unadjusted for the countervailable export subsidies at the time that the provisional CVD measures expire.13

    13See Polytetrafluoroethylene Resin from India: Preliminary Affirmative Countervailing Duty Determination, 83 FR 9842 (March 8, 2018).

    These suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    Commerce intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation.14 Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.15 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    14 Case briefs, other written comments, and rebuttal briefs should not include scope-related issues. See Preliminary Scope Decision Memorandum at 2-3. Parties were already permitted the opportunity to file scope case briefs. Id.

    15See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On March 28, 2018, pursuant to 19 CFR 351.210(e), GFL requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.16 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) the preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce's final determination will be published no later than 135 days after the date of publication of this preliminary determination.

    16See Letter from GFL, “Polytetrafluoroethylene (PTFE) Resin from India: Gujarat Fluorochemicals Ltd.'s Request to Postpone Final Determination,” dated March 28, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 30, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigation

    The product covered by this investigation is polytetrafluoroethylene (PTFE) resin, including but not limited to granular, dispersion, or coagulated dispersion (also known as fine powder). PTFE is covered by the scope of this investigation whether filled or unfilled, whether or not modified, and whether or not containing co-polymer additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for PTFE is C2F4, and the Chemical Abstracts Service Registry number is 9002-84-0.

    PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of this investigation.

    PTFE is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 3904.61.0010 and 3904.61.0090. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and Customs purposes, the written description of the scope is dispositive.

    Appendix II—List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Scope Comments V. Product Characteristics VI. Selection of Respondents VII. Discussion of the Methodology A. Application of Facts Available B. Comparisons to Fair Value VIII. Date of Sale IX. Product Comparisons X. Export Price and Constructed Export Price XI. Normal Value A. Comparison Market Viability B. Level of Trade C. Cost of Production (COP) Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test D. Calculation of NV Based on Comparison Market Prices XII. Currency Conversion XIII. Conclusion
    [FR Doc. 2018-09633 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Meeting of the United States Travel and Tourism Advisory Board AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of an open meeting.

    SUMMARY:

    The United States Travel and Tourism Advisory Board (Board or TTAB) will hold a meeting on Thursday, May 24, 2018. The Board advises the Secretary of Commerce on matters relating to the U.S. travel and tourism industry. The purpose of the meeting is for Board members to discuss recommendations related to the importance of international travel and tourism to the United States. The final agenda will be posted on the Department of Commerce website for the Board at http://trade.gov/ttab at least one week in advance of the meeting.

    DATES:

    Thursday, May 24, 2018, 3:00 p.m.-4:30 p.m. EDT. The deadline for members of the public to register, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EDT on Thursday, May 17, 2018.

    ADDRESSES:

    The meeting will be held in Washington, DC. The exact location will be provided by email to registrants.

    Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted to: National Travel and Tourism Office, U.S. Department of Commerce, 1401 Constitution Ave. NW, Room 10003, Washington, DC 20230 or by email to [email protected] Members of the public are encouraged to submit registration requests and written comments via email to ensure timely receipt.

    FOR FURTHER INFORMATION CONTACT:

    Brian Beall, the United States Travel and Tourism Advisory Board, National Travel and Tourism Office, U.S. Department of Commerce, 1401 Constitution Ave. NW, Room 10003, Washington, DC 20230; telephone: 202-482-0140; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Board advises the Secretary of Commerce on matters relating to the U.S. travel and tourism industry.

    Public Participation: The meeting will be open to the public and will be accessible to people with disabilities. Any member of the public requesting to join the meeting is asked to register in advance by the deadline identified under the DATES caption. Requests for auxiliary aids must be submitted by the registration deadline. Last minute requests will be accepted, but may not be possible to fill. There will be fifteen (15) minutes allotted for oral comments from members of the public joining the meeting. To accommodate as many speakers as possible, the time for public comments may be limited to three (3) minutes per person. Members of the public wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name and address of the proposed speaker. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers. Speakers are requested to submit a written copy of their prepared remarks by 5:00 p.m. EDT on Thursday, May 17, 2018, for inclusion in the meeting records and for circulation to the members of the Board.

    In addition, any member of the public may submit pertinent written comments concerning the Board's affairs at any time before or after the meeting. Comments may be submitted to Brian Beall at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5:00 p.m. EDT on Thursday, May 17, 2018, to ensure transmission to the Board prior to the meeting. Comments received after that date and time will be distributed to the members but may not be considered during the meeting. Copies of Board meeting minutes will be available within 90 days of the meeting.

    Brian Beall, Designated Federal Officer, United States Travel and Tourism Advisory Board.
    [FR Doc. 2018-09642 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-812] Steel Wire Garment Hangers From the Socialist Republic of Vietnam: Rescission of Antidumping Duty Administrative Review; 2017-2018 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on steel wire garment hangers from the Socialist Republic of Vietnam (Vietnam) for the period of review (POR) February 1, 2017, through January 31, 2018.

    DATES:

    Applicable May 7, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Trenton Duncan or Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3539 or (202) 482-2593, respectively.

    Background

    On February 1, 2018, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the AD order on steel wire garment hangers from Vietnam for the period February 1, 2017, through January 31, 2018.1 On February 28, 2018, M&B Metal Products Company, Inc. (the petitioner), timely requested a review of the AD order with respect to 66 companies.2 On April 16, 2018, Commerce initiated an administrative review with respect to these companies, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.221(c)(1)(i).3 On April 24, 2018, the petitioner timely withdrew its request for an administrative review of all 66 companies listed in the Initiation Notice. 4 No other party requested a review of these exporters or any other exporters of subject merchandise.

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 4639 (February 1, 2018).

    2See Petitioner's Letter, “Steel Wire Garment Hangers from Vietnam: Request for Fifth Administrative Review,” dated February 28, 2018.

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 16298 (April 16, 2018) (Initiation Notice).

    4See Petitioner's Letter, “Fifth Administrative Review of Steel Wire Garment Hangers from Vietnam—Petitioner's Withdrawal of Review Request,” dated April 24, 2018.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication date of the notice of initiation of the requested review. In this case, the petitioner timely withdrew its requests for review within the 90-day deadline. Because Commerce received no other requests for review of the above-referenced companies, and no other requests were made for a review of the AD order on steel wire garment hangers from Vietnam with respect to other companies, we are rescinding the administrative review covering the period February 1, 2017, through January 31, 2018, in its entirety, in accordance with 19 CFR 351.213(d)(1).

    Assessment

    Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of steel wire garment hangers from Vietnam during the POR at rates equal to the cash deposit rate for estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the Federal Register.

    Notification to Importers

    This notice serves as the only reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification Regarding Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).

    Dated: May 1, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-09630 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-066] Polytetrafluoroethylene Resin From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polytetrafluoroethylene (PTFE) resin from the People's Republic of China (China) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2017, through June 30, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable May 7, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Schauer or Michael Romani, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0410 or (202) 482-0198, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 26, 2017.1

    1See Polytetrafluoroethylene Resin from India and the People's Republic of China: Initiation of Less-Than-Fair-Value Investigations, 82 FR 49587 (October 26, 2017) (Initiation Notice).

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.2 Accordingly, the revised deadline for the preliminary determination of this investigation became March 12, 2018.3 Subsequently, on February 20, 2018, Commerce postponed the preliminary determination of this investigation and the revised deadline is now April 30, 2018.4 For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.5 A list of topics addressed in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/.

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    3Id.

    4See Polytetrafluoroethylene Resin from the People's Republic of China: Postponement of Preliminary Determination of Antidumping Duty Investigation, 83 FR 8423 (February 27, 2018).

    5See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polytetrafluoroethylene Resin from the People's Republic of China,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is PTFE resin from China. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,6 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (scope).7 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. For a summary of the product coverage comments and rebuttal responses submitted to the record for this investigation, and accompanying discussion and analysis of all comments timely received, see the Preliminary Scope Decision Memorandum.8 See the scope in Appendix I to this notice. The scope case briefs were due on April 9, 2018, 30 days after the publication of PTFE Resin from India CVD. 9 There will be no further opportunity for comments on scope-related issues.10

    6See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    7See Initiation Notice.

    8See Memorandum, “Polytetrafluoroethylene Resin from India and the People's Republic of China: Scope Comments Decision Memorandum for the Preliminary Determinations,” dated February 28, 2018 (Preliminary Scope Decision Memorandum).

    9 The scope case briefs were due 30 days after the publication of Polytetrafluoroethylene Resin from India: Preliminary Affirmative Countervailing Duty Determination, 83 FR 9842 (March 8, 2018) (PTFE Resin from India CVD), which was Saturday, April 7, 2018. See the Preliminary Scope Decision Memorandum at 2. Therefore, the actual deadline for the scope case briefs was Monday, April 9, 2018. See 19 CFR 351.303(b)(1) (“For both electronically filed and manually filed documents, if the applicable due date falls on a non-business day, the Secretary will accept documents that are filed on the next business day.”). The deadline for scope rebuttal briefs was Monday, April 16, 2018.

    10See Preliminary Scope Decision Memorandum at 3 (“Parties should include all arguments about scope-related issues in the scope case and scope rebuttal briefs. Commerce does not intend to permit arguments about scope-related issues in the investigation-specific case and rebuttal briefs regarding other issues.”)

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Export prices were calculated in accordance with section 772(a) of the Act; constructed export prices were calculated in accordance with section 772(b) of the Act. Because China is a non-market economy, within the meaning of section 771(18) of the Act, Commerce calculated normal value (NV) in accordance with section 773(c) of the Act. In addition, pursuant to section 776(a) and (b) of the Act, Commerce preliminarily relied on facts otherwise available, with adverse inferences, for the China-wide entity. For a full description of the methodology underlying Commerce's preliminary determination, see the Preliminary Decision Memorandum.

    Combination Rates

    In the Initiation Notice, 11 we stated that we would calculate producer/exporter combination rates for the respondents that are eligible for a separate rate in this investigation. Policy Bulletin 05.1 describes this practice.12 In this investigation, we calculated producer/exporter combination rates for respondents eligible for separate rates.

    11See Initiation Notice at 49591.

    12See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” (April 5, 2005) (Policy Bulletin 05.1), available on Commerce's website at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter Producer Estimated
  • weighted-
  • average
  • dumping
  • margin
  • (percent ad valorem)
  • Daikin Fluorochemicals (China) Co., Ltd Daikin Fluorochemicals (China) Co., Ltd 84.75 Shandong Dongyue Polymer Material Co., Ltd Shandong Dongyue Polymer Material Co., Ltd 69.34 Hangzhou Fine Fluorotech Co., Ltd Qingdao Orientalflon New Materials Co., Ltd 78.74 Hangzhou Fine Fluorotech Co., Ltd Zhejiang Juhua Co., Ltd. Fluor-Polymeric Plant 78.74 Shanghai Huayi 3f New Materials Sales Co., Ltd Shanghai 3f New Materials Co., Ltd 78.74 China-Wide Entity 208.16
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in Appendix I entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, as discussed below. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the weighted-average amount by which NV exceeds U.S. price, as indicated in the chart above as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of China producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the China-wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the China exporter/producer combination (or the China-wide entity) that supplied that third-country exporter.

    These suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    Commerce intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation.13 Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.14 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    13 Case briefs, other written comments, and rebuttal briefs should not include scope-related issues. See Preliminary Scope Decision Memorandum at 2-3. Parties were already permitted the opportunity to file scope case briefs. Id.

    14See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    In March 2018, pursuant to 19 CFR 351.210(e), Shandong Dongyue Polymer Material Co., Ltd., and Daikin Fluorochemicals (China) Co., Ltd., requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.15 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) the preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce's final determination will be published no later than 135 days after the date of publication of this preliminary determination.

    15See Letter from Shandong Dongyue Polymer Material Co., Ltd., “PTFE Resin from the People's Republic of China: Request to Postpone the Final Results of the Investigation,” dated March 19, 2018, and Letter from Daikin Fluorochemicals (China) Co., Ltd., “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China: Request to Postpone Final Determination,” dated March 20, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 30, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The product covered by this investigation is polytetrafluoroethylene (PTFE) resin, including but not limited to granular, dispersion, or coagulated dispersion (also known as fine powder). PTFE is covered by the scope of this investigation whether filled or unfilled, whether or not modified, and whether or not containing co-polymer additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for PTFE is C2F4, and the Chemical Abstracts Service Registry number is 9002-84-0.

    PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of this investigation.

    PTFE is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 3904.61.0010 and 3904.61.0090. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and Customs purposes, the written description of the scope is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Scope Comments V. Product Characteristics VI. Selection of Respondents VII. Discussion of the Methodology A. Non-Market Economy Country B. Surrogate Country C. Surrogate Value Comments D. Separate Rates E. Dumping Margin for the Separate Rate Companies F. Combination Rates G. China-Wide Entity H. Application of Facts Available and Adverse Inferences I. Date of Sale J. Comparisons to Fair Value K. U.S. Price L. Normal Value M. Factor Valuation Methodology N. Currency Conversion VIII. Conclusion
    [FR Doc. 2018-09632 Filed 5-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG128 Endangered and Threatened Species; Take of Anadromous Fish AGENCY:

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

    ACTION:

    Notice of Availability of a draft environmental assessment; request for comments.

    SUMMARY:

    Notice is hereby given that NMFS has prepared a draft environmental assessment (EA) under the National Environmental Policy Act (NEPA) describing the potential effects of the continued operation of one hatchery program in the San Joaquin River Basin of California. The Hatchery and Genetic Management Plan (HGMP) for the program was prepared and submitted by the United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Wildlife (CDFW). All comments and other information received will become part of the public record and will be available for review.

    DATES:

    Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (see ADDRESSES) no later than 5 p.m. Pacific standard time on June 6, 2018.

    ADDRESSES:

    Written comments on the draft EA should be addressed to the NMFS California Central Valley Office, Attn: San Joaquin Hatchery EA, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814. Comments may also be submitted via fax to 916-930-3629 or by email to [email protected] Include in the subject line of the email comment the following identifier: Comments on San Joaquin Hatchery EA. When commenting on the draft EA, please refer to the specific page number and line number of the subject of your comment. The documents are available on the internet at www.westcoast.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Amanda Cranford, Sacramento, CA, at phone number: (916) 930-3706, via fax: (916) 930-3629, or via email: [email protected]

    SUPPLEMENTARY INFORMATION:

    ESA-Listed Species Covered in This Notice

    Chinook salmon (Oncorhynchus tshawytscha): threatened, naturally produced and artificially propagated Central Valley spring-run (CVSR).

    Steelhead (O. mykiss): threatened, naturally produced and artificially propagated California Central Valley (CCV).

    Background

    The USFWS and CDFW, under the auspices of the San Joaquin River Restoration Program (SJRRP), are working to restore a CVSR Chinook salmon population in the San Joaquin River. The reintroduced CVSR Chinook salmon, taken from one or more out-of-basin stocks, are designated as a non-essential, experimental population under section 10(j) of the Endangered Species Act (ESA), and have associated 4(d) take provisions (78 FR 79622). The SJRRP determined that a conservation hatchery would be the preferred and primary strategy for reintroducing CVSR Chinook salmon to the San Joaquin River. The San Joaquin River Salmon Conservation and Research Program (Conservation Program) involves the operation of two facilities: the Salmon Conservation and Research Facility (SCARF) currently under construction, with completion expected summer of 2018, and an interim SCARF (Interim Facility) currently in operation. The Conservation Program is operated as an Integrated-Recovery hatchery program, intended to help meet fisheries management objectives while achieving restoration and recovery goals.

    This CVSR Chinook salmon HGMP submitted by the USFWS and CDFW, pursuant to section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 et seq.) and regulations governing listed fish and wildlife permits (50 CFR part 222), provides guidance on the management and operation of the SCARF and Interim Facility in the San Joaquin River Basin. The HGMP and the associated section 10(a)(1)(A) enhancement permit application (20571) were made available for public review and comment on July 27, 2017 (82 FR 34931). On August 8, 2017, NMFS determined that the submitted HGMP was sufficient for consideration under section 10(a)(1)(A) of the ESA. The draft environmental assessment available for comment evaluates the potential effects of approving the CVSR Chinook salmon HGMP and issuing an ESA section 10(a)(1)(A) Permit 20571 to the USFWS and CDFW.

    Authority

    NEPA requires Federal agencies to conduct an environmental analysis of their proposed actions to determine if the actions may affect the human environment. Therefore, NMFS is seeking public input on the scope of the required NEPA analysis, including the range of reasonable alternatives and associated impacts of any alternatives.

    Dated: May 1, 2018. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09570 Filed 5-4-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF100 National Process for Permit Applications To Retain Releasable Rehabilitated Marine Mammals for Public Display AGENCY:

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

    ACTION:

    Notice; response to comments.

    SUMMARY:

    The National Marine Fisheries Service (NMFS) announces the availability of its final Procedural Directive clarifying the process for eligible permit applicants to obtain releasable marine mammals for public display purposes under the Marine Mammal Protection Act (MMPA). NMFS will no longer grant permits for the specific purpose of retaining releasable marine mammals for public display. Instead, applicants will now need to apply for a permit to take (collect) animals from the wild pursuant to the MMPA.

    DATES:

    This final Procedural Directive will be applicable as of May 7, 2018.

    ADDRESSES:

    The Procedural Directive is available in electronic form via the internet at https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.

    FOR FURTHER INFORMATION CONTACT:

    Jaclyn Taylor, NMFS, Office of Protected Resources, (301) 427-8402, [email protected]

    SUPPLEMENTARY INFORMATION:

    NMFS developed a national Procedural Directive clarifying the process for eligible permit applicants to obtain releasable marine mammals for public display purposes under the MMPA.

    NMFS will no longer accept applications for MMPA section 104 permits that specifically seek to obtain releasable rehabilitated marine mammals for public display purposes. NMFS will instead require prospective applicants to apply for a permit authorizing actual take (collect) from the wild. In the event NMFS grants a permit for take from the wild, the NMFS OPR Director may then, at his or her discretion, require that a releasable rehabilitated marine mammal be substituted for the authorized capture from the wild, in accordance with 50 CFR 216.27.

    On November 15, 2017, NMFS published the draft national Procedure for Permit Applications to Retain Releasable Rehabilitated Marine Mammals for Public Display for a 30-day public comment period (82 FR 52880). Comments received are available on regulations.gov at https://www.regulations.gov/docket?D=NOAA-NMFS-2017-0096. Substantive and relevant comments and NMFS' responses are included below.

    General Comments

    Comment 1: Several commenters expressed support for the draft Procedural Directive, stating that it provides clarity and reflects concerns offered during public comment periods in 2010 and 2015 regarding the Office of Protected Resource's issuance of permits authorizing the acquisition of stranded, releasable California sea lions (Zalophus californianus) from the National Marine Mammal Health and Stranding Response Program for the purposes of public display. The commenters opined that the directive aligns more clearly with the stated goals of the Marine Mammal Health and Stranding Response Program by requiring the application for a permit to “take” marine mammals from the wild, leaving potential sourcing of releasable marine mammals from rehabilitation facilities, appropriately, to the discretion of the Director of the Office of Protected Resources.

    Response: NMFS acknowledges this comment and has finalized the Procedural Directive as proposed.

    Comment 2: One commenter recommended NMFS provide additional explanation and rationale for finding that either its existing practice or the procedural directive