Federal Register Vol. 83, No.92,

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range21841-22175
FR Document

83_FR_92
Current View
Page and SubjectPDF
83 FR 22175 - Continuation of the National Emergency With Respect to the Central African RepublicPDF
83 FR 22171 - Be Best Day, 2018PDF
83 FR 22169 - Public Service Recognition Week, 2018PDF
83 FR 22167 - National Hurricane Preparedness Week, 2018PDF
83 FR 22165 - National Charter Schools Week, 2018PDF
83 FR 22101 - Government in the Sunshine Act Meeting NoticePDF
83 FR 22104 - Sunshine Act MeetingsPDF
83 FR 22113 - Notice of Availability of the Cleveland/Detroit Metroplex Final Environmental Assessment and Finding of No Significant Impact/Record of DecisionPDF
83 FR 22061 - Proposed CERCLA Section 122(h) Cost Recovery Settlement for the Global Landfill Superfund Site, Middlesex County, New JerseyPDF
83 FR 22060 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 22088 - Meeting of the Advisory Committee on Minority HealthPDF
83 FR 22036 - Application for New Awards; Teacher Quality Partnership Grant ProgramPDF
83 FR 22003 - Agenda and Notice of Public Meeting of the Rhode Island Advisory CommitteePDF
83 FR 22004 - Notice of Public Meeting of the Rhode Island Advisory Committee to the U.S. Commission on Civil RightsPDF
83 FR 22059 - Proposed Information Collection Request; Comment Request; Drug Testing for Contractor Employees (Renewal)PDF
83 FR 22078 - Medicare Program; Meeting of the Medicare Evidence Development and Coverage Advisory Committee-July 25, 2018PDF
83 FR 22066 - Request for Comment: New Federal Real Property Profile Information for Communications Facility Installation: CorrectionPDF
83 FR 22064 - Information Collection; General Services Administration Acquisition Regulation; Contract Administration, Quality Assurance (GSA Forms 1678 and 308)PDF
83 FR 22065 - Information Collection; General Services Administration Acquisition Regulation; Identification of Products With Environmental AttributesPDF
83 FR 22111 - Terminal Railway Alabama State Docks-Temporary Trackage Rights Exemption-Norfolk Southern Railway CompanyPDF
83 FR 21897 - Authority of Health Care Providers To Practice TelehealthPDF
83 FR 22058 - The Hazardous Waste Electronic Manifest System Advisory Board: Request for NominationsPDF
83 FR 22078 - CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment (CHACHSPT); Amended Notice of MeetingPDF
83 FR 22072 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH)PDF
83 FR 22115 - Notice of Allocation Availability (NOAA) Inviting Applications for the Calendar Year (CY) 2018 Allocation Round of the New Markets Tax Credit (NMTC) ProgramPDF
83 FR 22034 - Procurement List; DeletionsPDF
83 FR 22035 - Procurement List; Proposed Addition and DeletionsPDF
83 FR 21841 - Walnuts Grown in California; Order Amending Marketing Order 984PDF
83 FR 22093 - 30-Day Notice of Proposed Information Collection: Capital Needs Assessments-CNA e ToolPDF
83 FR 21997 - Peanut Standards BoardPDF
83 FR 22094 - Privacy Act of 1974; System of Records Personnel Security Integrated Tracking System (PerSIST)PDF
83 FR 21885 - Safety Zone; Brandon Road Lock and Dam to Lake Michigan Including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, ILPDF
83 FR 21886 - Safety Zone; Cocos Lagoon, Merizo, GUPDF
83 FR 22064 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 22079 - Determination That SODIUM IODIDE I 123 (Sodium Iodide I-123), Oral Solution, 2 Millicuries/Milliliter, Was Not Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
83 FR 21999 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Mangoes from AustraliaPDF
83 FR 21999 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Endangered Species Regulations and Forfeiture ProceduresPDF
83 FR 21939 - Pacific Island Fisheries; Closure of the 2018 Hawaii Shallow-Set Longline Fishery; Court OrderPDF
83 FR 22074 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 22061 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (OMB No. 3064-0006; -0015; -0019; and -0097)PDF
83 FR 22103 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
83 FR 22066 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 21925 - Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2019; CorrectionPDF
83 FR 21888 - Safety Zones; Coast Guard Sector Ohio Valley Annual and Recurring Safety Zones UpdatePDF
83 FR 21997 - Submission for OMB Review; Comment RequestPDF
83 FR 21843 - Milk in the Florida Marketing Area; Order Amending the OrderPDF
83 FR 21912 - Medicare Program; Durable Medical Equipment Fee Schedule Adjustments To Resume the Transitional 50/50 Blended Rates To Provide Relief in Rural Areas and Non-Contiguous AreasPDF
83 FR 21941 - Tart Cherries Grown in the States of Michigan, et al.; Free and Restricted Percentages for the 2017-18 Crop Year for Tart CherriesPDF
83 FR 22055 - Transcontinental Gas Pipe Line Company, LLC; Notice of ApplicationPDF
83 FR 22091 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
83 FR 22089 - National Institute of Mental Health; Notice of Closed MeetingsPDF
83 FR 22088 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
83 FR 22090 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 22090 - National Cancer Institute; Notice of Closed MeetingsPDF
83 FR 22088 - Draft Report on Carcinogens Monograph on Helicobacter pylori: Chronic Infection; Availability of Document; Request for CommentsPDF
83 FR 22057 - Duke Energy Carolinas, LLC; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and ProtestsPDF
83 FR 22054 - Perryville Gas Storage LLC; Notice of ApplicationPDF
83 FR 22110 - National Small Business Development Centers Advisory Board; MeetingPDF
83 FR 22005 - Foreign-Trade Zone 198-Volusia and Flagler Counties, Florida; Application for Reorganization and Expansion Under Alternative Site FrameworkPDF
83 FR 22006 - Large Residential Washers From the Republic of Korea and Mexico: Initiation of Changed Circumstances Reviews, and Consideration of Revocation, in Part, of the Antidumping Duty Orders on Large Residential Washers From the Republic of Korea and Mexico and the Countervailing Duty Order on Large Residential Washers From the Republic of KoreaPDF
83 FR 22008 - Clad Steel Plate From Japan: Final Results of the Expedited Fourth Sunset Review of the Antidumping Duty OrderPDF
83 FR 22007 - Foundry Coke Products From the People's Republic of China: Continuation of Antidumping Duty OrderPDF
83 FR 22067 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 22069 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 22071 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
83 FR 22072 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
83 FR 21927 - Restoring Internet FreedomPDF
83 FR 22092 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0005PDF
83 FR 22099 - Notice of Availability of the Draft Environmental Impact Statement for the Proposed Blue Valley Land Exchange, Grand and Summit Counties, ColoradoPDF
83 FR 22034 - Proposed Information Collection; Comment Request; National Oceanic and Atmospheric Administration's Papahānaumokuākea Marine National Monument and University of Hawaii Research Internship ProgramPDF
83 FR 22111 - Hainesport Industrial Railroad, LLC-Lease and Operation Exemption-Hainesport Secondary Railroad, LLCPDF
83 FR 22125 - Publication of the Date on Which All Amounts Deposited in the Veterans Choice Fund Will Be ExhaustedPDF
83 FR 22100 - Agency Information Collection Activities: Submission to the Office of Management and Budget for Review and Approval; Permanent Regulatory Program-Small Operator Assistance ProgramPDF
83 FR 21995 - Radio Broadcasting Services; Connerville, OklahomaPDF
83 FR 22112 - WTO Dispute Settlement Proceeding: United States Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products From IndiaPDF
83 FR 21893 - Expanded Access to Non-VA Care Through the Veterans Choice ProgramPDF
83 FR 22036 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Pell Grant Reporting Under the Common Origination and Disbursement (COD) SystemPDF
83 FR 22081 - Agency Information Collection Activities; Proposed Collection; Comment Request; Request for Samples and ProtocolsPDF
83 FR 22085 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Pilot Project Program Under the Drug Supply Chain Security ActPDF
83 FR 22080 - Circulatory System Devices Panel of the Medical Devices Advisory Committee; Notice of MeetingPDF
83 FR 21876 - Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HIPDF
83 FR 22056 - Combined Notice of Filings #1PDF
83 FR 22103 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
83 FR 22083 - Facility Definition Under Section 503B of the Federal Food, Drug, and Cosmetic Act; Guidance for Industry; AvailabilityPDF
83 FR 22104 - Submission for OMB Review, Comment Request, Proposed Collection: IMLS Grants to States Program “Five-Year State Plan Guidelines for State Library Administrative Agencies”PDF
83 FR 21883 - Safety Zone; Barge PFE-LB444, San Joaquin River, Blackslough Landing, CAPDF
83 FR 21885 - Recurring Safety Zone; Corpus Christi Hooks Baseball Team/Friday Night FireworksPDF
83 FR 22114 - Notice of Intent To Grant a Buy America Waiver to the North Carolina Department of Transportation To Use Certain Non-Domestic Components of a Fire Alarm SystemPDF
83 FR 22107 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Statutory Disqualification Application FeesPDF
83 FR 22102 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 22100 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 22061 - Radio Broadcasting Services; AM or FM Proposals To Change The Community of LicensePDF
83 FR 21928 - Endangered and Threatened Wildlife and Plants; Reclassifying Echinocereus fendleri var. kuenzleri from Endangered to ThreatenedPDF
83 FR 22110 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of IndianaPDF
83 FR 22110 - Presidential Declaration of a Major Disaster for the State of IndianaPDF
83 FR 22003 - Superior National Forest; Minnesota; Application for WithdrawalPDF
83 FR 22000 - Rogue River-Siskiyou National Forest and Umpqua National Forest; Oregon; Stella Landscape Restoration ProjectPDF
83 FR 22002 - Information Collection; Commercial Use of the Woodsy Owl SymbolPDF
83 FR 22124 - Proposed Extension of Information Collection Request Submitted for Public Comment; Form 1096, Annual Summary and Transmittal of U.S. Information ReturnsPDF
83 FR 22097 - Agency Information Collection Activities; Natural and Cultural Resources Agencies Customer Relationship ManagementPDF
83 FR 22124 - Proposed Collection; Comment Request for Form 1099-RPDF
83 FR 22035 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Application Package for Graduate Assistance in Areas of National Need (GAANN) ProgramPDF
83 FR 22106 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Digital I&C Systems; Notice of MeetingPDF
83 FR 22009 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ketchikan Berth IV Expansion ProjectPDF
83 FR 21951 - Airworthiness Directives; Pacific Aerospace Limited AirplanesPDF
83 FR 21846 - Matching Funds Requirements for Agricultural Research and Extension Capacity Funds at 1890 Land-Grant Institutions, Including Central State University, Tuskegee University, and West Virginia State University, and at 1862 Land-Grant Institutions in Insular AreasPDF
83 FR 21962 - Airworthiness Directives; Pacific Aerospace Limited AirplanesPDF
83 FR 22091 - National Institute on Deafness and Other Communication Disorders Notice of Closed MeetingsPDF
83 FR 22090 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 22051 - Commission Information Collection Activities; (FERC-725E); Comment Request; RevisionPDF
83 FR 22051 - Notice of Complaint: Public Service Electric and Gas Company v. Consolidated Edison Company of New York, Inc.PDF
83 FR 22054 - Longview Power, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
83 FR 22049 - Combined Notice of FilingsPDF
83 FR 22050 - Combined Notice of Filings #2PDF
83 FR 22055 - Combined Notice of Filings #1PDF
83 FR 22106 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Thermal-Hydraulics Phenomena; Notice of MeetingPDF
83 FR 22107 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Regulatory Policies & Practices; Notice of MeetingPDF
83 FR 22106 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Nuscale; Notice of MeetingPDF
83 FR 22105 - Advisory Committee on Reactor Safeguards (ACRS): Meeting of the ACRS Subcommittee on Power Uprates; Notice of MeetingPDF
83 FR 21872 - PassportsPDF
83 FR 22004 - Notice of Public Meetings of the Arkansas Advisory Committee to the U.S. Commission on Civil RightsPDF
83 FR 21976 - Air Plan Approval; ID, Pinehurst PM10PDF
83 FR 21907 - Air Plan Approval; KY; Fine Particulate Matter and Ozone NAAQS RevisionsPDF
83 FR 21850 - Accepted Means of Compliance; Airworthiness Standards: Normal Category AirplanesPDF
83 FR 21968 - Proposed Amendment of Class D and Class E Airspace; Aspen, COPDF
83 FR 21871 - Establishment of Class E Airspace, Paris, IDPDF
83 FR 21870 - Establishment of Class E Airspace, Manley Hot Springs, AKPDF
83 FR 21970 - Proposed Amendment of Class E Airspace; Kemmerer, WYPDF
83 FR 21998 - Agency Information Collection Activities: Revision and Extension of Approved Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
83 FR 21964 - Airworthiness Directives; Airbus HelicoptersPDF
83 FR 21953 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 21948 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 21946 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 21983 - Rural Call CompletionPDF
83 FR 21936 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna FisheriesPDF
83 FR 21909 - Extension of Deadline for Action on the Section 126(b) Petition From New YorkPDF
83 FR 21861 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 21858 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 21955 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 21966 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 21867 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 21855 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 21972 - Design Standards for HighwaysPDF
83 FR 22128 - Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control RevisionsPDF

Issue

83 92 Friday, May 11, 2018 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22066 2018-10090 Agricultural Marketing Agricultural Marketing Service RULES Marketing Orders: Milk in the Florida Marketing Area, 21843-21846 2018-10085 Marketing Orders; Amendments: Walnuts Grown in California, 21841-21843 2018-10106 PROPOSED RULES Free and Restricted Percentages; 2017-18 Crop Year Tart Cherries: Grown in the States of Michigan, et al., 21941-21946 2018-10083 NOTICES Requests for Nominations: Peanut Standards Board, 21997 2018-10104 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Forest Service

See

National Institute of Food and Agriculture

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21997-21998 2018-10086 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery, 21998 2018-09984
Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Endangered Species Regulations and Forfeiture Procedures, 21999-22000 2018-10097 Importation of Mangoes from Australia, 21999 2018-10098 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement PROPOSED RULES Oil and Gas and Sulfur Operations in Outer Continental Shelf: Blowout Preventer Systems and Well Control Revisions, 22128-22162 2018-09305 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22067-22077 2018-10064 2018-10065 2018-10066 2018-10067 2018-10094 Meetings: Advisory Board on Radiation and Worker Health, National Institute for Occupational Safety and Health, 22072 2018-10110 CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment, 22078 2018-10111 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Durable Medical Equipment Fee Schedule Adjustments to Resume the Transitional 50/50 Blended Rates to Provide Relief in Rural Areas and Non-Contiguous Areas, 21912-21925 2018-10084 Patient Protection and Affordable Care Act: Benefit and Payment Parameters for 2019; Correction, 21925-21927 2018-10089 NOTICES Meetings: Medicare Evidence Development and Coverage Advisory Committee, 22078-22079 2018-10120 Civil Rights Civil Rights Commission NOTICES Meetings: Arkansas Advisory Committee, 22004-22005 2018-09994 Rhode Island Advisory Committee, 22003-22004 2018-10122 2018-10123 Coast Guard Coast Guard RULES Safety Zones: Barge PFE-LB444, San Joaquin River, Blackslough Landing, CA, 21883-21885 2018-10044 Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, 21885 2018-10102 Coast Guard Sector Ohio Valley Annual and Recurring Update, 21888-21893 2018-10088 Cocos Lagoon, Merizo, GU, 21886-21887 2018-10101 Corpus Christi Hooks Baseball Team/Friday Night Fireworks, 21885-21886 2018-10043 Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI, 21876-21883 2018-10049 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22092-22093 2018-10062 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 22034-22035 2018-10107 2018-10108 Community Development Community Development Financial Institutions Fund NOTICES Funding Availability: Notice of Allocation Availability Inviting Applications for the Calendar Year 2018 Allocation Round of the New Markets Tax Credit Program, 22115-22124 2018-10109 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application package for Graduate Assistance in Areas of National Need Program, 22035-22036 2018-10019 Pell Grant Reporting under the Common Origination and Disbursement System, 22036 2018-10053 Applications for New Awards: Teacher Quality Partnership Grant Program, 22036-22049 2018-10124 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Kentucky; Fine Particulate Matter and Ozone National Ambient Air Quality Standards Revisions, 21907-21909 2018-09991 Extension of Deadline for Action on the Section 126(b) Petition From New York, 21909-21912 2018-09892 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Idaho; Pinehurst PM10 Redesignation, Limited Maintenance Plan; West Silver Valley 2012 Annual PM2.5 Emission Inventory, 21976-21983 2018-09992 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Drug Testing for Contractor Employees (Renewal), 22059-22060 2018-10121 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 22060-22061 2018-10126 Proposed CERCLA Cost Recovery Settlements: Global Landfill Superfund Site, Middlesex County, NJ, 22061 2018-10134 Requests for Nominations: Hazardous Waste Electronic Manifest System Advisory Board, 22058-22059 2018-10113 Federal Aviation Federal Aviation Administration RULES Accepted Means of Compliance: Airworthiness Standards: Normal Category Airplanes, 21850-21855 2018-09990 Airworthiness Directives: Airbus Airplanes, 21858-21867 2018-09848 2018-09862 Bombardier, Inc., Airplanes, 21855-21858 2018-09734 The Boeing Company Airplanes, 21867-21870 2018-09747 Establishment of Class E Airspace: Manley Hot Springs, AK, 21870-21871 2018-09987 Paris, ID, 21871-21872 2018-09988 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 21955-21961 2018-09847 Airbus Helicopters, 21964-21966 2018-09982 Bombardier, Inc., Airplanes, 21966-21968 2018-09846 Dassault Aviation Airplanes, 21953-21955 2018-09979 Pacific Aerospace Limited Airplanes, 21951-21953, 21962-21963 2018-10014 2018-10016 The Boeing Company Airplanes, 21946-21951 2018-09977 2018-09978 Amendment of Class D and Class E Airspace: Aspen, CO, 21968-21970 2018-09989 Amendment of Class E Airspace: Kemmerer, WY, 21970-21972 2018-09986 NOTICES Environmental Assessments; Availability, etc.: Cleveland/Detroit Metroplex, 22113 2018-10143 Federal Communications Federal Communications Commission RULES Restoring Internet Freedom, 21927-21928 2018-10063 PROPOSED RULES Radio Broadcasting Services: Connerville, OK, 21995-21996 2018-10056 Rural Call Completion, 21983-21995 2018-09968 NOTICES Radio Broadcasting Services: AM or FM Proposals to Change the Community of License, 22061 2018-10035 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22061-22064 2018-10093 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22051-22053 2018-10006 Applications: Perryville Gas Storage LLC, 22054 2018-10073 Transcontinental Gas Pipe Line Company, LLC, 22055-22056 2018-10082 Combined Filings, 22049-22051, 22055-22057 2018-10000 2018-10001 2018-10002 2018-10048 Complaints: Public Service Electric and Gas Co. v. Consolidated Edison Co. of New York, Inc., 22051 2018-10005 Hydroelectric Applications: Duke Energy Carolinas, LLC, 22057-22058 2018-10074 Institution of Section 206 Proceedings: Longview Power, LLC, 22054-22055 2018-10004 Federal Highway Federal Highway Administration PROPOSED RULES Design Standards for Highways, 21972-21976 2018-09609 Federal Railroad Federal Railroad Administration NOTICES Buy America Waivers: North Carolina Department of Transportation; Certain Non-Domestic Components of a Fire Alarm System, 22114-22115 2018-10042 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 22064 2018-10100 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Reclassifying Echinocereus fendleri var. kuenzleri from Endangered to Threatened, 21928-21936 2018-10034 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pilot Project Program Under the Drug Supply Chain Security Act, 22085-22087 2018-10051 Request for Samples and Protocols, 22081-22083 2018-10052 Determinations that Products Were Not Withdrawn from Sale for Reasons of Safety or Effectiveness: SODIUM IODIDE I 123 (Sodium Iodide I-123), Oral Solution, 2 Millicuries/Milliliter, 22079-22080 2018-10099 Guidance: Facility Definition Under the Federal Food, Drug, and Cosmetic Act, 22083-22085 2018-10046 Meetings: Circulatory System Devices Panel of the Medical Devices Advisory Committee, 22080-22081 2018-10050 Foreign Trade Foreign-Trade Zones Board NOTICES Reorganizations and Expansions under Alternative Site Framework: Foreign-Trade Zone 198; Volusia and Flagler Counties, FL, 22005 2018-10071 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Commercial Use of the Woodsy Owl Symbol, 22002-22003 2018-10028 Environmental Impact Statements; Availability, etc.: Rogue River-Siskiyou National Forest and Umpqua National Forest; Oregon; Stella Landscape Restoration Project, 22000-22002 2018-10029 Superior National Forest; Minnesota; Application for Withdrawal, 22003 2018-10030 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Contract Administration, Quality Assurance, 22064-22065 2018-10118 Identification of Products with Environmental Attributes, 22065-22066 2018-10116 Requests for Comments: New Federal Real Property Profile Information for Communications Facility Installation: Correction, 22066 2018-10119 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Meetings: Advisory Committee on Minority Health, 22088 2018-10125
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Capital Needs Assessments—CNA e Tool, 22093-22094 2018-10105 Privacy Act; Systems of Records, 22094-22097 2018-10103 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Five-Year State Plan Guidelines for State Library Administrative Agencies, 22104-22105 2018-10045 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Land Management Bureau

See

Surface Mining Reclamation and Enforcement Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Natural and Cultural Resources Agencies Customer Relationship Management, 22097-22099 2018-10026
Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22124 2018-10024 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Summary and Transmittal of U.S. Information Returns, 22124-22125 2018-10027 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Clad Steel Plate from Japan, 22008-22009 2018-10069 Foundry Coke Products from the People's Republic of China, 22007-22008 2018-10068 Large Residential Washers from the Republic of Korea and Mexico, 22006-22007 2018-10070 International Trade Com International Trade Commission NOTICES Complaints: Certain Infotainment Systems, Components Thereof, and Automobiles Containing the Same, 22102-22103 2018-10037 Certain Movable Barrier Operator Systems and Components Thereof, 22100-22101 2018-10036 Meetings; Sunshine Act, 22101-22102 2018-10200 Justice Department Justice Department NOTICES Proposed Consent Decrees: CERCLA, 22103-22104 2018-10092 Clean Water Act, 22103 2018-10047 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Proposed Blue Valley Land Exchange, Grand and Summit Counties, CO, 22099-22100 2018-10061 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 22104 2018-10176 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Institute Food National Institute of Food and Agriculture RULES Matching Funds Requirements for Agricultural Research and Extension Capacity Funds at 1890 Land-Grant Institutions and 1862 Land-Grant Institutions in Insular Areas, 21846-21850 2018-10015 National Institute National Institutes of Health NOTICES Draft Report on Carcinogens Monograph on Helicobacter pylori: Chronic Infection, 22088-22089 2018-10075 Meetings: Center for Scientific Review, 22090-22091 2018-10010 National Cancer Institute, 22090 2018-10076 National Institute of General Medical Sciences, 22088, 22090 2018-10077 2018-10078 National Institute of Mental Health, 22089-22090 2018-10079 National Institute on Deafness and Other Communication Disorders, 22091-22092 2018-10011 National Institute on Minority Health and Health Disparities, 22091 2018-10080 2018-10081 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Atlantic Bluefin Tuna Fisheries, 21936-21939 2018-09960 Pacific Island Fisheries: Closure of the 2018 Hawaii Shallow-set Longline Fishery; Court Order, 21939-21940 2018-10096 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Oceanic and Atmospheric Administration's Papahanaumokuakea Marine National Monument and University of Hawaii Research Internship Program, 22034 2018-10060 Takes of Marine Mammals Incidental to Specified Activities: Ketchikan Berth IV Expansion Project, 22009-22034 2018-10017 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Digital I and C Systems, 22106 2018-10018 Advisory Committee on Reactor Safeguards Subcommittee on Nuscale, 22106 2018-09997 Advisory Committee on Reactor Safeguards Subcommittee on Power Uprates, 22105 2018-09996 Advisory Committee on Reactor Safeguards Subcommittee on Regulatory Policies and Practices, 22107 2018-09998 Advisory Committee on Reactor Safeguards Subcommittee on Thermal-Hydraulics Phenomena, 22106-22107 2018-09999 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Be Best Day (Proc. 9745), 22171-22172 2018-10280 National Charter Schools Week (Proc. 9742), 22163-22166 2018-10275 National Hurricane Preparedness Week (Proc. 9743), 22167-22168 2018-10276 Public Service Recognition Week (Proc. 9744), 22169-22170 2018-10279 ADMINISTRATIVE ORDERS Central African Republic; Continuation of National Emergency (Notice of May 10, 2018), 22173-22175 2018-10313 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 22107-22110 2018-10039 Small Business Small Business Administration NOTICES Major Disaster Declarations: Indiana, 22110-22111 2018-10031 2018-10032 Meetings: National Small Business Development Centers Advisory Board, 22110 2018-10072 State Department State Department RULES Passports, 21872-21876 2018-09995 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Permanent Regulatory Program—Small Operator Assistance Program, 22100 2018-10057 Surface Transportation Surface Transportation Board NOTICES Lease and Operation Exemptions: Hainesport Industrial Railroad, LLC; Hainesport Secondary Railroad, LLC, 22111-22112 2018-10059 Temporary Trackage Rights Exemptions: Terminal Railway Alabama State Docks; Norfolk Southern Railway Co., 22111 2018-10115 Trade Representative Trade Representative, Office of United States NOTICES WTO Dispute Settlement Proceeding: United States Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India, 22112-22113 2018-10055 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department RULES Authority of Health Care Providers to Practice Telehealth, 21897-21907 2018-10114 Expanded Access to Non-VA Care through the Veterans Choice Program, 21893-21897 2018-10054 NOTICES Publication of the Date on Which All Amounts Deposited in the Veterans Choice Fund Will Be Exhausted, 22125 2018-10058 Separate Parts In This Issue Part II Interior Department, Bureau of Safety and Environmental Enforcement, 22128-22162 2018-09305 Part III Presidential Documents, 22163-22172 2018-10280 2018-10275 2018-10276 2018-10279 Part IV Presidential Documents, 22173-22175 2018-10313 Reader Aids

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

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83 92 Friday, May 11, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 984 [Doc. No. AMS-SC-16-0053; SC16-984-1 FR] Walnuts Grown in California; Order Amending Marketing Order 984 AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends Marketing Order No. 984, which regulates the handling of walnuts grown in California. The amendment, which was proposed by the California Walnut Board (Board), was approved by growers in the referendum. This action authorizes the Board to borrow from a commercial lending institution to fund operations and marketing/research expenses for the program.

DATES:

This rule is effective June 11, 2018.

FOR FURTHER INFORMATION CONTACT:

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

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

SUPPLEMENTARY INFORMATION:

This action, pursuant to 5 U.S.C. 553, finalizes an amendment to a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 984, as amended (7 CFR part 984), regulating the handling of walnuts grown in California. Part 984 hereinafter (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board, which is responsible for the local administration of the Order, is comprised of walnut growers and handlers operating within the production area. The applicable rules of practice and procedure governing the formulation of Marketing Agreements and Orders (7 CFR part 900) authorize amendment of the Order through this informal rulemaking action.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule shall not be deemed to preclude, preempt, or supersede any State program covering walnuts grown in California.

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

Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) amended section 18c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307). The amendment of section 18c(17) of the Act and additional supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders based on the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

The Agricultural Marketing Service (AMS) considered the nature and complexity of the proposed amendment, the potential regulatory and economic impacts on affected entities, and other relevant matters, and determined that amending the Order as proposed by the Board could appropriately be accomplished through informal rulemaking.

The proposed amendment was unanimously recommended by the Board following deliberations at a public meeting held on February 19, 2016.

A proposed rule soliciting comments on the amendment was issued on September 12, 2016, and published in the Federal Register on September 16, 2016 (81 FR 63721). Two comments were received, both in support of the amendment. A proposed rule and referendum order was issued on May 19, 2017, and published in the Federal Register on May 26, 2017 (82 FR 24255). This document also directed that a referendum among walnut growers be conducted August 7, 2017 through August 18, 2017 to determine whether they favored the proposal. To become effective, the amendment had to be approved by either two-thirds of the growers voting in the referendum or by those representing at least two-thirds of the volume of walnuts produced by those voting in the referendum. The amendment was favored by 61 percent of the growers voting and by 68 percent of the volume represented, the second of which exceeds the two-thirds volume requirement.

The amendment in this final rule authorizes the Board to borrow from a commercial lending institution during times of cash shortages to help ensure continuity of operations.

Final Regulatory Flexibility Analysis

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

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

There are approximately 5,700 growers of California walnuts in the production area and approximately 90 handlers subject to regulation under the Order. The Small Business Administration (SBA) defines small agricultural growers as those having annual receipts of less than $750,000 and defines small agricultural service firms as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to USDA's National Agricultural Statistics Service's (NASS's) 2012 Census of Agriculture, approximately 86 percent of California's walnut farms were smaller than 100 acres. Further, NASS reports that the average yield for 2014 was 1.97 tons per acre, and the average price received for 2014 was $3,230 per ton. A 100-acre farm with an average yield of 1.97 tons per acre would therefore have been expected to produce about 197 tons of walnuts during 2014-15 marketing year. At $3,230 per ton, that farm's production would have had an approximate value of $636,310. Since Census of Agriculture information indicates that the majority of California's walnut farms are smaller than 100 acres, it could be concluded that the majority of the growers had receipts of less than $636,310 in 2014-15, which is below the SBA threshold of $750,000. Thus, the majority of California's walnut growers would be considered small growers according to SBA's definition. According to information supplied by the Board, approximately two-thirds of California's walnut handlers shipped merchantable walnuts valued under $7,500,000 during the 2014-15 marketing year and would, therefore, be considered small handlers according to the SBA definition.

The Board's proposed amendment authorizing the Board to borrow from commercial lending institutions was unanimously recommended at a public meeting on February 19, 2016. This amendment will help to ensure continuity in operations.

The Board reviewed and identified the most costly portion of its domestic advertising program. That portion of the program operates during the first six months of the Board's marketing year and costs must be paid by mid-year. Since assessment revenues are collected throughout the marketing year, not enough is on hand when these large payments are due. In the past, the Board has used reserve funds to help pay for marketing and advertising expenses. However, due to the increased size of the advertising program, the Board cannot rely on reserve funds to cover the costs. Based on this fact, the Board believes the program could become unsustainable in the long term.

While this action could result in a temporary increase in handler assessment costs, these increases would be small and uniform on all handlers and proportional to the size of their businesses. These costs are expected to be offset by the benefits derived from a sustained marketing and advertising program. Additionally, these costs would help to ensure that the Board has sufficient funds to meet its financial obligations. Such stability is expected to allow the Board to conduct a program that would benefit all entities, regardless of size. California walnut growers should see an improved business environment and a more sustainable business model because of the improved business efficiency.

Alternatives were considered to this proposal, including making no change at this time. However, the Board believes it would be beneficial to have the means and funds necessary to effectively administer the program.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, “Vegetable and Specialty Crops.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This amendment will not impose any additional reporting or recordkeeping requirements on either small or large California walnut handlers.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

The Board's meeting was widely publicized throughout the California walnut production area. All interested persons were invited to attend and participate in Board deliberations on all issues. The February 19, 2016, meeting was public, and all entities, both large and small, were encouraged to express their views on the proposal.

A proposed rule concerning this action was published in the Federal Register on September 16, 2016 (81 FR 63721). Copies of the proposed rule were mailed or sent via facsimile to all Board members and walnut growers. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending November 15, 2016, was provided to allow interested persons to respond to the proposal. Two comments were received, both in support of the amendment. No changes were made to the proposed amendments as a result of the comments received.

A proposed rule and referendum order was then issued on May 19, 2017, and published in the Federal Register on May 26, 2017 (82 FR 24255). This document directed that a referendum among walnut growers be conducted during the period of August 7, 2017 through August 18, 2017 to determine whether they favored the proposed amendment to the Order. To become effective, the amendment had to be approved by at least two-thirds of the growers voting, or two-thirds of the volume of walnuts represented by voters in the referendum. The amendment was favored by 61 percent of the growers voting and by 68 percent of the volume represented, the latter of which exceeds the two-thirds volume requirement.

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

Order Amending the Order Regulating the Handling of Walnuts Grown in California

(a) Findings and Determinations Upon the Basis of the Rulemaking Record.

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

1. The Order, as amended, and as hereby further amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

2. The Order, as amended, and as hereby further amended, regulates the handling of walnuts grown in California in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the Order;

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

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

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

(b) Determinations. It is hereby determined that:

1. Handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping of walnuts covered under the Order) who during the period September 1, 2015, through August 31, 2016, handled not less than 50 percent of the volume of such walnuts covered by said Order, as hereby amended, have not signed an amended marketing agreement; and

2. The issuance of this amendatory Order, amending the aforesaid Order, is favored or approved by producers representing at least two-thirds of the volume of walnuts produced by those voting in a referendum on the question of approval and who, during the period of September 1, 2015, through August 31, 2016, have been engaged within the production area in the production of such walnuts.

3. The issuance of this amendatory Order advances the interests of growers of walnuts in the production area pursuant to the declared policy of the Act.

Order Relative to Handling

It is therefore ordered, that on and after the effective date hereof, all handling of walnuts grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby amended as follows:

The provisions of the proposed Marketing Order amending the Order contained in the proposed rule issued by the Associate Administrator on September 12, 2016, and published in the Federal Register on September 16, 2016 (81 FR 63721), shall be and are the terms and provisions of this order amending the Order and are set forth in full herein.

List of Subjects in 7 CFR Part 984

Walnuts, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 984 is amended as follows:

PART 984—WALNUTS GROWN IN CALIFORNIA 1. The authority citation for part 984 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Amend 984.69 by redesignating paragraph (d) as paragraph (e) and adding a new paragraph (d) to read as follows:
§ 984.69 Assessments.

(d) Advanced assessments and commercial loans. To provide funds for the administration of the provisions of this part during the part of a fiscal period when neither sufficient operating reserve funds nor sufficient revenue from assessments on the current season's certifications are available, the Board may accept payment of assessments in advance or may borrow money from a commercial lending institution for such purposes.

Dated: May 8, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-10106 Filed 5-10-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1006 [AMS-DA-17-0068; AO-18-0008] Milk in the Florida Marketing Area; Order Amending the Order AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Florida Federal milk marketing order (FMMO) to adopt a temporary assessment on Class I milk. Assessment revenue will be disbursed to handlers and producers who incurred extraordinary marketing losses and expenses due to Hurricane Irma in September 2017. More than the required number of producers for the Florida marketing area have approved the issuance of the final order as amended.

DATES:

This rule is effective July 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Erin C. Taylor, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, STOP 0231-Room 2963, 1400 Independence Ave SW, Washington, DC 20250-0231, (202) 720-7183, email address: [email protected]

SUPPLEMENTARY INFORMATION:

This rule, in accordance with 7 CFR 900.14(c), is the Secretary's final rule in this proceeding and issues a marketing order as defined in 7 CFR 900.2(j).

Accordingly, this final rule adopts proposed amendments detailed in the proposed rule (83 FR 13691).

This administrative action is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.

This final rule is not considered an Executive Order 13771 regulatory action because it does not meet the definition of a “regulation” or “rule” under Executive Order 12866.

The proposed amendments adopted in this final rule have been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect and will not preempt any state or local law, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

The Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601-674 and 7253), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the AMAA, any handler subject to a marketing order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The AMAA provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act and Paperwork Reduction Act

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities and has determined that this rule will not have a significant economic impact on a substantial number of small entities.

For the purpose of the RFA, a dairy farm is considered a small business if it has an annual gross revenue of less than $750,000. Dairy product manufacturers are considered small businesses based on the number of people they employ. Small fluid milk and ice cream manufacturers are defined as having 1,000 or fewer employees. Small butter and dry or condensed dairy product manufacturers are defined as having 750 or fewer employees. Small cheese manufacturers are defined as having 1,250 or fewer employees. Manufacturing plants that are part of larger companies operating multiple plants with total numbers of employees that exceed the threshold for small businesses will be considered large businesses, even if the local plant has fewer employees than the threshold number.

AMS estimates that 248 dairy farms produced milk pooled on the Florida FMMO in 2017. One hundred forty-one farms delivered milk to Florida pool plants fewer than 100 days during 2017, and of those, 66 had less than 48,000 pounds of pooled milk on the order during the entire year. AMS estimates 107 farms (248 minus 141) were part of the “normal” Florida milk supply last year. Nineteen of those farms had less than $750,000 in gross milk sales, based upon estimated 2017 production and a weighted average uniform price of $20.98 per cwt.

Considering all 248 farms that had producer milk on the Florida FMMO, AMS estimates that 101 farms had less than $750,000 in gross milk sales, regardless of where all of their production was pooled, and would be considered small businesses.

AMS data indicates that six dairy farmer cooperatives, in their capacity as handlers, pooled producer milk on the Florida FMMO in 2017. AMS estimates that two of those cooperative handlers have fewer than 500 employees and would be considered small businesses. Thirty-eight processing plants received producer milk in 2017, of which AMS estimates that 13 would be considered small businesses. Two of the 13 small businesses are fully regulated distributing plants on the Florida FMMO. The remaining 11 small businesses are nonpool or exempt plants.

The proposed amendments adopted in this final rule will provide temporary reimbursement to handlers (cooperative associations and proprietary handlers) who incurred extraordinary losses in connection with Hurricane Irma in September 2017. The amendments were requested by Southeast Milk, Inc.; Dairy Farmers of America, Inc.; Premier Milk, Inc.; Maryland and Virginia Milk Producers Cooperative Association, Inc.; and Lone Star Milk Producers, Inc. The dairy farmer members of these five cooperatives supply the majority of the milk pooled under the Florida FMMO. For a 7-month period beginning with July 2018, the amendments will implement a temporary assessment on Class I milk pooled on the Florida FMMO at a rate not to exceed $0.09 per hundredweight (cwt). The amount generated through the temporary assessment will be disbursed during the 7-month period starting in July 2018 to qualifying handlers who incurred extraordinary losses and expenses as a result of the hurricane.

The amendments will reimburse handlers for marketing expenses and losses in four categories: Transportation costs to deliver loads to other than their normal receiving plants; lost location value due to selling milk in lower location value zones; milk dumped at farms or on tankers, and skim milk dumped at plants; and distressed milk sales. Reimbursement will be funded through an assessment on Class I milk at a maximum rate of $0.09 per cwt. Record evidence indicates that this would increase the consumer price of milk by less than $0.01 per gallon during the 7-month assessment period.

The temporary assessment will not place handlers in the Florida marketing area at a competitive disadvantage because of the assessment's uniform application to Class I milk. Additionally, any handler who experienced a qualifying marketing expense or loss will be eligible to receive reimbursement, regardless of size. Dairy farmer blend prices will not be impacted by the amendments because the assessment will not be funded through the marketwide pool. Dairy farmer cooperatives who pooled milk on the Florida order, and therefore who qualified as the pooling handler, will also be eligible for reimbursement. In those instances, producers are receiving relief as the money is returned to their dairy farmer-owned cooperative. Accordingly, the adoption of the proposed amendments will not significantly impact producers or handlers of any size, due to the limited implementation period and the minimal impact to the Class I milk price.

A review of reporting requirements was completed in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The information necessary to qualify for reimbursement, as outlined in this rule, has already been submitted through the monthly handler receipts and utilization form (FORM 1), or is part of the normal business records inspected during routine FMMO audits.

The primary information sources that will be required for applications for reimbursement are documents currently generated in customary business transactions. These documents include, but are not limited to: Invoices; receiving records; bulk milk manifests; hauling bills; and contracts. As these documents are routinely inspected by the market administrator during handler audits, the amendments adopted in this rule would not result in any new information collection.

Prior Documents in This Proceeding

Notification of Hearing: Issued December 6, 2017; published December 11, 2017 (82 FR 58135);

Supplemental Notice of Hearing: Issued December 7, 2017; published December 11, 2017 (82 FR 58135);

Final Decision: Issued March 23, 2018; published March 30, 2018 (83 FR 13691).

Findings and Determinations

The findings and determinations hereinafter set forth supplement those that were made when the order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.

(1) Findings upon the basis of the hearing record.

The amendments to the order are based on the record of a public hearing held in Tampa, Florida, December 12 through 14, 2017, pursuant to a notification of hearing issued December 6, 2017, and published December 11, 2017 (82 FR 58135). The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure (7 CFR part 900). The tentative marketing agreement and the order are authorized under 7 U.S.C. 608c.

Upon the basis of the evidence introduced at the public hearing and its record, it is found that:

(a) The order as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the AMAA;

(b) The parity prices of milk, as determined pursuant to section 2 of the AMAA, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions that affect market supply and demand for milk in the Florida marketing area. The minimum prices specified in the tentative marketing agreement and order, as hereby amended, are prices that will reflect the aforesaid factors, ensure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(c) The tentative marketing agreement and order, as hereby amended, will regulate the handling of milk in the same manner as, and applies only to, persons in the respective classes of industrial and commercial activity specified in, marketing agreements upon which a hearing has been held.

(2) Additional Findings.

The amendment to this order is known to handlers. The final decision containing the proposed amendment to this order was issued on March 23, 2018, and published in the Federal Register on March 30, 2018 (83 FR 13691).

The public hearing regarding amendments to this order was held on an emergency basis. The changes that result from these amendments will not require extensive preparation or substantial alteration in the handlers' method of operation. Therefore, it is determined that good cause exists for making this amendment effective July 1, 2018. (Section 553(d), Administrative Procedure Act, 5 U.S.C. 551-559.)

(3) Determinations.

It is hereby determined that:

(a) The refusal or failure of handlers (excluding cooperative associations specified in section 8c(9) of the AMAA) of more than 50 percent of the milk marketed within the specified marketing areas to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the AMAA;

(b) The issuance of this order amending the Florida order is the only practical means pursuant to the declared policy of the AMAA of advancing the interests of producers as defined in the order as hereby amended; and

(c) The issuance of this order amending the Florida order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the respective marketing areas.

List of Subjects in 7 CFR Part 1006

Milk marketing orders.

Order Amending the Order Regulating the Handling of Milk in the Florida Marketing Area

It is therefore ordered, that on and after the effective date hereof, the handling of milk in the Florida marketing area shall be in conformity to and in compliance with the terms and conditions of the order as amended, as follows:

For the reasons set forth in the preamble, 7 CFR part 1006 is amended as follows:

PART 1006—MILK IN THE FLORIDA MILK MARKETING AREA 1. The authority citation for part 1006 continues to read as follows: Authority:

7 U.S.C. 601-674, and 7253.

[Subpart Redesignated as Subpart A] 2. Redesignate “Subpart—Order Regulating Handling” as “Subpart A—Order Regulating Handling”. 3. Section 1006.60 is amended by revising paragraphs (a) and (g) and adding paragraphs (h) and (i) to read as follows:
§ 1006.60 Handler's value of milk.

(a) Multiply the pounds of skim milk and butterfat in producer milk that were classified in each class pursuant to § 1000.44(c) of this chapter by the applicable skim milk and butterfat prices, and add the resulting amounts; except that for the months of July 2018 through January 2019, the Class I skim milk price for this purpose shall be the Class I skim milk price as determined in § 1000.50(b) of this chapter plus $0.09 per hundredweight, and the Class I butterfat price for this purpose shall be the Class I butterfat price as determined in § 1000.50(c) of this chapter plus $0.0009 per pound. The adjustments to the Class I skim milk and butterfat prices provided herein may be reduced by the market administrator for any month if the market administrator determines that the payments yet unpaid computed pursuant to paragraphs (g)(1) through (g)(6) of this section will be less than the amount computed pursuant to paragraph (h) of this section. The adjustments to the Class I skim milk and butterfat prices provided herein during the months of July 2018 through January 2019 shall be announced along with the prices announced in § 1000.53(b) of this chapter.

(g) For transactions occurring during the period of September 6, 2017, through September 15, 2017, for handlers who have submitted proof satisfactory to the market administrator no later than August 1, 2018, to determine eligibility for reimbursement of hurricane-imposed costs, subtract an amount equal to:

(1) The additional cost of transportation on loads of milk rerouted from pool distributing plants to plants outside the state of Florida as a result of Hurricane Irma, and the additional cost of transportation on loads of milk moved and then dumped. The reimbursement of transportation costs pursuant to this section shall be the actual demonstrated cost of such transportation of bulk milk or the miles of transportation on such loads of bulk milk multiplied by $3.75 per loaded mile, whichever is less;

(2) The lost location value on loads of milk rerouted to plants outside the state of Florida as a result of Hurricane Irma. The lost location value shall be the difference per hundredweight between the value specified in § 1000.52 of this chapter, adjusted by § 1006.51(b), at the location of the plant where the milk would have normally been received and the value specified in § 1000.52, as adjusted by § 1005.51(b) and § 1007.51(b) of this chapter, at the location of the plant to which the milk was rerouted;

(3) The value per hundredweight at the lowest classified price for the month of September 2017 for milk dumped at the farm and classified as other use milk pursuant to § 1000.40(e) of this chapter as a result of Hurricane Irma;

(4) The value per hundredweight at the lowest classified price for the month of September 2017 for milk dumped from milk tankers after being moved off-farm and classified as other use milk pursuant to § 1000.40(e) of this chapter as a result of Hurricane Irma;

(5) The value per hundredweight at the lowest classified price for the month of September 2017 for skim portion of milk dumped and classified as other use milk pursuant to § 1000.40(e) of this chapter as a result of Hurricane Irma; and

(6) The difference between the announced class price applicable to the milk as classified by the market administrator for the month of September 2017 and the actual price received for milk delivered to nonpool plants outside the state of Florida as a result of Hurricane Irma.

(h) The total amount of payment to all handlers under paragraph (g) of this section shall be limited for each month to an amount determined by multiplying the total Class I producer milk for all handlers pursuant to § 1000.44(c) of this chapter times $0.09 per hundredweight.

(i) If the cost of payments computed pursuant to paragraphs (g)(1) through (g)(6) of this section exceeds the amount computed pursuant to paragraph (h) of this section, the market administrator shall prorate such payments to each handler based on each handler's proportion of transportation and other use milk costs submitted pursuant to paragraphs (g)(1) through (g)(6). Costs submitted pursuant to paragraphs (g)(1) through (g)(6) which are not paid as a result of such a proration shall be paid in subsequent months until all costs incurred and documented through (g)(1) through (g)(6) have been paid.

Dated: May 8, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-10085 Filed 5-10-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture 7 CFR Part 3419 RIN 0524-AA68 Matching Funds Requirements for Agricultural Research and Extension Capacity Funds at 1890 Land-Grant Institutions, Including Central State University, Tuskegee University, and West Virginia State University, and at 1862 Land-Grant Institutions in Insular Areas AGENCY:

National Institute of Food and Agriculture, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends National Institute of Food and Agriculture (NIFA) regulations for the purpose of implementing the statutory amendments applicable to the National Institute of Food and Agriculture's (NIFA) matching requirements for Federal agricultural research and extension capacity (formula) funds for 1890 land-grant institutions (LGUs), including Central State University, Tuskegee University, and West Virginia State University, and 1862 land-grant institutions in insular areas, and to remove the term “qualifying educational activities.” These matching requirements were amended by the Farm Security and Rural Investment Act; the Food, Conservation, and Energy Act of 2008; and the Agricultural Act of 2014.

DATES:

This final rule is effective May 11, 2018.

FOR FURTHER INFORMATION CONTACT:

Maggie Ewell, Senior Policy Advisor, 202-401-0222.

SUPPLEMENTARY INFORMATION: I. Background and Purpose

The National Institute of Food and Agriculture (NIFA) amends part 3419 of Title 7, subtitle B, chapter XXXIV of the Code of Federal Regulations which implements the matching requirements provided under section 1449 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA) for agricultural research and extension capacity (formula) funds authorized for the 1890 land-grant institutions, including Central State University, Tuskegee University, and West Virginia State University and 1862 land-grant institutions in insular areas. This revision is required due to the statutory amendments of sections 7212 of the Farm Security and Rural Investment Act of 2002 (FSRIA); section 7127 of the Food, Conservation, and Energy Act of 2008; and section 7129 of the Agricultural Act of 2014. Additionally, NIFA makes these changes to the Definitions and Use of Matching Funds sections to provide clarity on allowable uses of matching funds.

Response to Comments on the Proposed Rule and Revisions Included in Final Rule

On November 13, 2017, NIFA published in the Federal Register a Notice of Proposed Rulemaking entitled “Matching Funds Requirements for Agricultural Research and Extension Capacity Funds at 1890 Land-Grant Institutions and 1862 Land-Grant Institutions in Insular Areas” (82 FR 52250) with the same purpose as above. The public had 60 days to comment, with the comment period closing January 12, 2018. NIFA received only one comment in response to the Notice of Proposed Rulemaking and this comment addressed issues that are outside the scope of this rule. The commenter discussed the inhumane treatment of farm animals in general. Because this comment is outside the scope of this rule, no change will be made to the language of the revision based on this comment.

Summary of Changes in Final Rule Section 3419.1 Definitions

The definition of an eligible institution is updated to include West Virginia State University (formerly West Virginia State College) and Central State University. Section 753 of the Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002 (Pub. L. 107-76) restored 1890 land-grant institution status to West Virginia State College. In 2004, the West Virginia Legislature approved West Virginia State College's transition to University status. Central State University was recognized as an 1890 land-grant institution under section 7129 of the Agricultural Act of 2014.

In 2014, NIFA re-branded its formula grant programs as “capacity grants.” Therefore, the definition of formula funds is changed to reflect this terminology, capacity funds, and the words “by formula” are inserted to clarify that capacity funds are provided by formula to eligible institutions.

The term and definition for qualifying educational activities is removed due to the fact that this term has caused confusion regarding what constitutes an allowable qualifying educational activity. NIFA follows the authorized uses of funds in NARETPA, codified at 7 U.S.C. 3221 and 3222, for extension and research programs. Research funds are for conducting agricultural research, printing, disseminating the results of research, administration, planning and direction, purchase and rental of land, and the construction, acquisition, alteration, or repair of buildings necessary for conducting agricultural research. Extension funds are for the expenses of conducting extension programs and activities. 7 U.S.C. 3221(e) expressly prohibits extension funds from being spent on college course teaching or lectures in college.

NARETPA also contains definitions that explain the difference between education in conjunction with extension programs and education and teaching. Extension education is defined as “informal” while teaching and education is defined as “formal classroom instruction,” which is expressly prohibited under 7 U.S.C. 3221(e).

Because the authorized uses related to education expenses are clearly outlined in NARETPA and in 7 U.S.C. 3221 and 3222, NIFA does not see the value in including the term ”qualifying educational activity” as a term in regulation and, further, wants to ensure there is no conflict between its regulatory authorizations and the law. Therefore, NIFA removes the term “qualifying educational activity” and will allow only informal educational activities, as authorized by statute.

Section 3419.2 Matching Funds Requirements

Revisions to this section are required due to statutory amendments of sections 7212 of FSRIA; section 7127 of the Food, Conservation, and Energy Act of 2008; and section 7129 of the Agricultural Act of 2014. The information regarding Fiscal Years 2000, 2001, and 2002 are removed as they are outdated and no longer applicable. NIFA replaces this text with the matching requirements for 1862 land-grant institutions in insular areas for the Smith-Lever 3(b) and (c) program (7 U.S.C. 343(e)(4)(A)) and the Hatch Act program (7 U.S.C. 361c(d)(4)(A)), which state that insular areas will provide matching funds from non-Federal sources in an amount equal to not less than 50 percent of the formula funds distributed by NIFA to each of the 1862 land-grant institutions in insular areas, respectively. NIFA replaces existing text with the matching requirement to the Evans Allen/Section 1445 fund program (7 U.S.C. 3222d) and Extension/Section 1444 fund programs (7 U.S.C. 3221) which state that the State will provide equal matching funds from non-Federal sources.

Section 3419.3 Limited Waiver Authority

The section entitled, “Determination of non-Federal sources of funds,” § 3419.3, is removed, because it reiterated a statutory requirement to submit, in the year 1999, a report on non-Federal funds used as match to be submitted. There is no further statutory requirement or authority to submit reports on the sources of non-Federal funds. Section 3419.4 Limited Waiver Authority is re-designated as § 3419.3 and modified to include the provisions of 7 U.S.C 3222d(d): authorization of a 50% waiver of matching funds authority for 1890 land-grant institutions. Additionally, § 3419.3 includes the authority to waive up to 100% of the required match for 1862 land-grant institutions in insular areas that is present in 7 U.S.C. 343(e)(4)(B).

NIFA also adds to this section a description of the criteria a land-grant institution must demonstrate in order to be eligible for a waiver. The three criteria are: Impacts from natural disaster, flood, fire, tornado, hurricane, or drought; State and/or Institution facing a financial crisis; or lack of matching funds after demonstrating a good faith effort to obtain funds.

Section 3419.4 Application for Waivers for Both 1890 Land-Grant Institutions and 1862 Land-Grant Institutions in Insular Areas

NIFA adds § 3419.4 to outline how 1890 land-grant institutions and 1862 land-grant institutions in insular areas may request a matching waiver. To request a waiver, the president of the institution must submit in writing a request for a waiver of the matching requirements. The request must include the name of the eligible institution, the type of capacity funds, which would include Section 1444 Extension, Section 1445 Research; Smith-Lever; or Hatch Act; the fiscal year of the match; and the basis of the request, i.e., one or more of the criteria identified in 3419.3. Requests for waivers may be submitted with the application for funds or at any time during the period of performance of the award. Additionally, NIFA includes a requirement for current supporting documentation, where current is defined as within the past two years from the date of the letter requesting the waiver. It is critical that NIFA base its decisions for matching waivers on the current state of affairs within the State and institution. Using older data does not provide adequate rationale for NIFA to waive the statutorily required match for capacity programs.

Section 3419.5 Certification of Matching Funds

The only change in this section is changing the word “formula” to “capacity,” consistent with the current terminology used by NIFA.

Section 3419.6 Use of Matching Funds

NIFA includes minor technical changes to this section: Use of the term “capacity” in place of “formula” and “must” in place of “shall.” These technical changes have no impact on the requirements from the existing to the proposed regulation. Additionally, NIFA adds clarifying language that matching funds must be used for the same purpose as Federal dollars as well as a specific prohibition on the use of tuition dollars and student fees as match.

The intent of the rule is to clarify two requirements. First, the amended rule clarifies that matching funds must be used by an eligible institution for the same purpose as Federal award dollars: Agricultural research and extension activities that have been approved in the plan of work. Second, the amended rule removes the end phrase: “or for approved qualifying educational activities.” As discussed in § 3419.1 Definitions, the use of the phrase “qualifying educational activities” has caused confusion regarding what constitutes an allowable qualifying educational activity. NIFA supports the position, as required under 2 CFR 200.306, that all matching funds must be necessary and reasonable for accomplishment of project or program objectives. In other words, to be allowable as a match, the costs must be allowable under the Federal award. This principle applies to matching funds 1890 land-grant institutions receive for Research and Extension programs, as well as the funds received by 1862 land-grant institutions in insular areas for Smith-Lever and Hatch programs.

NIFA follows the authorized uses of funds in the authorizing statutes for determining what is allowable under the Federal award. For 1862 land-grant institutions in insular areas, this is the authorized uses under 7 U.S.C. 343 for Smith-Lever programs and 7 U.S.C. 361a for Hatch Act programs.

For 1890 Extension and Research programs, NIFA follows the authorizations included in NARETPA, codified at 7 U.S.C. 3221 and 3222. Research funds are for conducting agricultural research; printing; disseminating the results of research, administration, planning and direction; purchase and rental of land; and the construction, acquisition, alteration, or repair of buildings necessary for conducting agricultural research. Extension funds are for the expenses of conduction extension programs and activities. 7 U.S.C. 3221(e) expressly prohibits extension funds from being spent on college course teaching or lectures in college.

NARETPA also contains definitions that explain the difference between education in conjunction with extension programs versus education and teaching. Extension education is defined as “informal” while teaching and education is defined as “formal classroom instruction,” which is expressly prohibited under 7 U.S.C. 3221(e).

Because the authorized uses related to education expenses are clearly outlined in NARETPA and 7 U.S.C. 3221 and 3222, NIFA does not see value in including the term “qualifying educational activity” as a term in regulation and further, wants to ensure there is no conflict between its regulatory authorizations and the law. Therefore, NIFA removes the term “qualifying educational activity;” however, the removal is intended to prohibit expenditures related to formal education activities. NIFA will allow only informal education activities, as authorized by statute.

Under 7 U.S.C. 3221(a)(3), funds appropriated for extension must be used for the expenses of conducting extension programs and activities, and for contributing to the retirement of employees subject to the provisions of 7 U.S.C. 331. 7 U.S.C. 3222(e) expressly prohibits extension funds from being spent on college course teaching and lectures in college. Section 1404(7) of NARETPA defines the term extension to mean informal education programs conducted in the States in cooperation with the Department of Education. Therefore, NIFA has determined that the current authorizations allow for informal education programs to be conducted with extension funding, but not for formal classroom instruction.

7 U.S.C. 3222(a)(3) states that: “research funding must be used for the expenses of conducting agricultural research, printing, disseminating the results of such research, contributing to the retirement of employees subject to the provisions of 7 U.S.C. 331 of this title, administrative planning and direction, and purchase and rental of land and the construction, acquisition, alteration, or repair of buildings necessary for conducting agricultural research.”

Because the authorizing statutes so clearly identify authorized uses and prohibitions, NIFA believes that no further explanation or inclusion of qualifying educational activities is needed in this regulation.

Finally, Section 1473 of NARETPA, 7 U.S.C. 3319, prohibits grantee institutions from using capacity funds for tuition remission. Therefore, NIFA revises this section to clarify that this prohibition also applies to student fees, as they are related to tuition. Further 7 U.S.C. 3221 and 3222 do not include tuition or student fees as authorized uses of funds. As provided in 7 U.S.C. 3221(e) and 3222(d), no portion of the funds provided to an 1890 institution for extension and research shall be applied, directly or indirectly, to any purpose other than those specified in the authorizing statutes. Therefore, NIFA clarifies that tuition dollars and student fees are not to be used as matching funds.

Section 3419.7 Reporting of Matching Funds

This revision adds a section on reporting of matching funds to clarify an existing requirement that 1890 land-grant institutions and 1862 land-grant institutions in insular areas report all capacity funds expended on an annual basis using Standard Form (SF) 425, in accordance with 7 CFR part 3430. This ensures that the information on matching funds is reported to NIFA.

Section 3419.8 Redistribution of Funds

This revision removes the first sentence of the existing provision as the timing of reapportionment may vary. Removing this sentence does not change the statutory requirements for reapportionment. The only significance of the deletion is to remove the July 1 date for action.

Additionally, one other technical correction changes “shall” to “must,” consistent with the plain English provisions relating to rulemaking.

Executive Order 12866 and Executive Order 13563

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 emphasizes the importance of quantifying the costs and benefits of simplifying and harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

Executive Order 13771

This final rule is not expected to be an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

Regulatory Flexibility Act

This final rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C. 601-612). The Director of the NIFA certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect institutions of higher education receiving Federal funds under this program. The U.S. Small Business Administration Size Standards define institutions as “small entities” if they are for-profit or nonprofit institutions with total annual revenue below $5,000,000 or if they are institutions controlled by governmental entities with populations below 50,000. The rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.

Catalogue of Federal Domestic Assistance

The programs affected by this final rule are listed in the Catalogue of Federal Domestic Assistance under 10.500, Cooperative Extension Service; 10.511, Smith-Lever Funding; 10.512, Agriculture Extension at 1890 Land-grant Institutions, and 10.205, Payments to 1890 Land-Grant Colleges and Tuskegee University Evans-Allen Research and/or Agricultural Research at 1890 Land-grant institutions, including Tuskegee University, West Virginia State University, and Central State University; and 10.203, Payments to Agricultural Experiment Stations Under the Hatch Act (The Hatch Act of 1887).

Paperwork Reduction Act

The Department certifies that this final rule has been assessed in accordance with the requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The Department concludes that this rule does not impose any new information collection requirements or change the burden estimate on existing information collection requirements. In addition to the SF-424 form families (i.e., Research and Related and Mandatory) and the SF-425 Federal Financial Report (FFR) No. 0348-0061, NIFA has three currently approved OMB information collections associated with this rulemaking: OMB Information Collection No. 0524-0042, NIFA REEport; No. 0524-0041, NIFA Application Review Process; and No. 0524-0026, Organizational Information.

Unfunded Mandates Reform Act of 1995 and Executive Order 13132

The Department has reviewed this final rule in accordance with the requirements of Executive Order No. 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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 there is no Federal mandate contained herein that could result in increased expenditures by State, local, or tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

Clarity of This Regulation

Executive Order 12866 and the President's Memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this rule easier to understand.

List of Subjects in 7 CFR Part 3419

1890 land-grant institutions, Agricultural extension, Agricultural research, Grant programs-agriculture, Insular areas, Land-grant institutions, Matching funds.

For the reasons discussed in the preamble, the Department of Agriculture, National Institute of Food and Agriculture, amends 7 CFR part 3419 as follows:

PART 3419—MATCHING FUNDS REQUIREMENT FOR AGRICULTURAL RESEARCH AND EXTENSION CAPACITY FUNDS AT 1890 LAND-GRANT INSTITUTIONS, INCLUDING CENTRAL STATE UNIVERSITY, TUSKEGEE UNIVERSITY, AND WEST VIRGINIA STATE UNIVERSITY AND AT 1862 LAND-GRANT INSTITUTIONS IN INSULAR AREAS 1. The authority citation for part 3419 is revised to read as follows: Authority:

7 U.S.C. 3222d; 7 U.S.C. 343(e); 7 U.S.C. 361c; Pub. L. 107-171; Pub. L. 110-234; Pub. L. 113-79.

2. Revise the heading of part 3419 to read as set forth above. 3. Amend § 3419.1 as follows: a. Add a definition for “Capacity funds” in alphabetical order; b. Revise the definition of “Eligible institution”; c. Remove the definition of “Formula funds”; d. Revise the definition of “Matching funds”; and e. Remove the definition of “Qualifying educational activities”.

The addition and revision read as follows:

§ 3419.1 Definitions.

Capacity funds means agricultural extension and research funds provided by formula to the eligible institutions under sections 1444 and 1445 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA), as amended, or under sections 3(b) and (c) of the Smith-Lever Act, 7 U.S.C. 343(b) and (c) or under section 3 of the Hatch Act of 1887, 7 U.S.C. 361c.

Eligible institution means a college or university eligible to receive funds under the Act of August 30, 1890 (7 U.S.C. 321 et seq.) (commonly known as the Second Morrill Act), including Central State University, Tuskegee University, and West Virginia State University (1890 land-grant institutions), and a college or university designated under the Act of July 2, 1862 (7 U.S.C. 301, et seq.) (commonly known as the First Morrill Act) and located in the Commonwealth of Puerto Rico and the insular areas of American Samoa, Guam, Micronesia, Northern Marianas, and the U.S. Virgin Islands (1862 land-grant institutions in insular areas).

Matching funds means funds from non-Federal sources, including those made available by the State to the eligible institutions, for programs or activities that fall within the purposes of agricultural research and cooperative extension under: sections 1444 and 1445 of NARETPA; the Hatch Act of 1887; and the Smith-Lever Act.

4. Amend § 3419.2 as follows: a. Revise the section heading; b. Remove the introductory text; and c. Revise paragraphs (a) and (b).

The revisions read as follows:

§ 3419.2 Matching funds requirement.

(a) 1890 land-grant institutions. The distribution of capacity funds are subject to a matching requirement. Matching funds will equal not less than 100% of the capacity funds to be distributed to the institution.

(b) 1862 land-grant institutions in insular areas. The distribution of capacity funds are subject to a matching requirement. Matching funds will equal not less than 50% of the capacity funds to be distributed to the institution.

§ 3419.3 [Removed]
5. Remove § 3419.3. 6. Redesignate § 3419.4 as § 3419.3 and revise newly designated § 3419.3 to read as follows:
§ 3419.3 Limited waiver authority.

(a) 1890 land-grant institutions: The Secretary may waive the matching funds requirement in § 3419.2 above the 50% level for any fiscal year for an eligible institution of a State if the Secretary determines that the State will be unlikely to satisfy the matching requirement.

(b) 1862 land-grant institutions in insular areas: The Secretary may waive up to 100% of the matching funds requirements in § 3419.2 for any fiscal year for an eligible institution in an insular area.

(c) The criteria to waive the applicable matching requirement for 1890 land-grant institutions and 1862 land-grant institutions in insular areas is demonstration of one or more of the following:

(1) Impacts from natural disaster, flood, fire, tornado, hurricane, or drought;

(2) State and/or institution facing a financial crisis; or

(3) Lack of matching funds after demonstration of good faith efforts to obtain funds.

(d) Approval or disapproval of the request for a waiver will be based on the application submitted, as defined under § 3419.4.

7. Add a new § 3419.4 to read as follows:
§ 3419.4 Applications for waivers for both 1890 land-grant institutions and 1862 land-grant institutions in insular areas.

Application for waivers for both 1890 land-grant institutions and 1862 land-grant institutions in insular areas. The president of the eligible institution must submit any request for a waiver for matching requirements. A waiver application must include the name of the eligible institution, the type of Federal capacity funds (i.e. research, extension, Hatch, etc.), appropriate fiscal year, the basis for the request (e.g. one or more of the criteria identified in § 3419.3); current supporting documentation, where current is defined as within the past two years from the date of the letter requesting the waiver; and the amount of the request.

§ 3419.5 [Amended]
8. Amend § 3419.5 by removing the word “formula” and adding, in its place, the word “capacity”. 9. Revise § 3419.6 to read as follows:
§ 3419.6 Use of matching funds.

The required matching funds for the capacity programs must be used by an eligible institution for the same purpose as Federal award dollars: Agricultural research and extension activities that have been approved in the plan of work required under sections 1445(c) and 1444(d) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, section 7 of the Hatch Act of 1887, and section 4 of the Smith-Lever Act. For all programs, tuition dollars and student fees may not be used as matching funds.

10. Redesignate § 3419.7 as § 3419.8 and revise newly redesignated § 3419.8 to read as follows:
§ 3419.8 Redistribution of funds.

Unmatched research and extension funds will be reapportioned in accordance with the research and extension statutory distribution formulas applicable to the 1890 and 1862 land-grant institutions in insular areas, respectively. Any redistribution of funds must be subject to the same matching requirement under § 3419.2.

11. Add a new § 3419.7 to read as follows:
§ 3419.7 Reporting of matching funds.

Institutions will report all capacity matching funds expended annually using Standard Form (SF) 425, in accordance with 7 CFR 3430.56(a).

Done at Washington, DC, this 7th day of May 2018. Meryl Broussard, Associate Director for Programs, National Institute of Food and Agriculture.
[FR Doc. 2018-10015 Filed 5-10-18; 8:45 am] BILLING CODE 3410-22-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Notice No. 23-18-01-NOA] Accepted Means of Compliance; Airworthiness Standards: Normal Category Airplanes AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Notification of availability; request for comments.

SUMMARY:

This document announces the availability of 63 Means of Compliance (MOC) based on 30 published ASTM International (ASTM) consensus standards developed by ASTM Committee F44 on General Aviation Aircraft. A total of 46 of these accepted MOCs consist of ASTM consensus standards as published, with the remaining 17 MOCs comprised of a combination of ASTM standards and FAA changes. The Administrator finds these MOCs to be an acceptable means, but not the only means, of showing compliance to the applicable regulations in part 23, amendment 23-64, for normal category airplanes. The Administrator further finds that these accepted means of complying with part 23, amendment 23-64, provide at least the same level of safety as the corresponding requirements in part 23, amendment 23-63.

DATES:

Comments must be received on or before July 10, 2018.

ADDRESSES:

Mail comments to: Federal Aviation Administration, Policy and Innovation Division, Small Airplane Standards Branch, AIR-690, Attention: Steve Thompson, 901 Locust Street, Room 301, Kansas City, Missouri 64106. Comments may also be emailed to: [email protected] Specify the MOC, and if applicable, the standard being addressed by designation and title. Mark all comments: Part 23 MOC Comments.

FOR FURTHER INFORMATION CONTACT:

Steve Thompson, Federal Aviation Administration, Policy and Innovation Division, Small Airplane Standards Branch, AIR-690, 901 Locust Street, Room 301, Kansas City, Missouri 64106; telephone (816) 329-4126; facsimile: (816) 329-4090; email: [email protected]

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to submit written comments, data, or views. Communications should identify the MOC and consensus standard number, where applicable, and be submitted to the address previously specified in the ADDRESSES section of this NOA. The most helpful comments reference a specific portion of the accepted MOC(s) or standard(s), explain the reason for any recommended change, and include supporting data. The FAA may forward communications regarding the consensus standards to ASTM Committee F44 for consideration. The MOC or standard may be revised based on received comments. The FAA will consider all comments received during the recurring review of the MOC and consensus standard and will participate in the consensus standard revision process.

Background

Under the provisions of the National Technology Transfer and Advancement Act of 19951 and Office of Management and Budget (OMB) Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” effective January 27, 2016, the FAA participates in the development of consensus standards and uses consensus standards as a means of carrying out its policy objectives where appropriate.

1Ref Public Law 104-113 as amended by Public Law 107-107.

Consistent with the Small Airplane Revitalization Act of 2013,2 the FAA has been working with industry and other stakeholders through ASTM to develop consensus standards for use as a MOC in certificating small airplanes under part 23. In promulgating part 23, amendment 23-64, the FAA explained that if it determined such consensus standards were acceptable MOC to part 23, it would publish a notice of availability of those consensus standards in the Federal Register.

2Ref Public Law 113-53.

Pursuant to FAA Advisory Circular 23.2010-1, section 3.1.1, this document serves as a formal acceptance by the Administrator, of MOCs based on consensus standards developed by ASTM. The MOCs accepted by this document are one means, but not the only means of complying with part 23 regulatory requirements.

The FAA has reviewed the consensus standards referenced in this NOA as the basis for MOCs to the regulatory requirements of part 23, amendment 23-64. In some cases, the Administrator finds sections of ASTM Standard F3264-17, “Standard Specification for Normal Category Aeroplanes Certification,” without changes, are accepted as means of complying with the airworthiness requirements of part 23, without degrading safety, and within the scope and applicability of the consensus standards. In other cases, the MOCs, while based on ASTM consensus standards, include additional FAA provisions necessary to comply with the airworthiness requirements of part 23, amendment 23-64.

Part 23, amendment 23-64, established airworthiness requirements based on the level of safety of amendment 23-63 regulations, except for areas addressing loss of control and icing where the safety level was increased.3 Achieving this level of safety through compliance with amendment 23-64—for a given certification project—may require use of additional MOCs beyond those accepted by this document, depending on the details of the specific design. For example, an applicant's design may include features that are customary, but not addressed in the MOCs accepted by this document. Designs may also include features that are innovative and not type certificated previously. In either case, a supplemental MOC beyond those accepted in this document would be required. For example, the MOCs accepted by this document do not contain provisions addressing powered-trim system runaways. Therefore, in order to maintain the level of safety of amendment 23-63 regulations, applicants proposing use of these MOCs for an airplane with a powered-trim system would need to supplement the accepted MOC(s) with additional means for § 23.2300 to demonstrate safe controllability after a probable trim system runaway. To do this, applicants could use the provisions of § 23.677(d), amendment 23-49, or other MOC(s) accepted under § 23.2010. Further information on supplemental MOCs is provided in a part 23 means of compliance summary table and in the Small Airplanes Issues List, which are available on the Small Airplanes—Regulations, Policies & Guidance website.4

3Ref 81 FR 96572, December 30, 2016.

4See https://www.faa.gov/aircraft/air_cert/design_approvals/small_airplanes/small_airplanes_regs/.

Means of Compliance Accepted in This Document

The following is a list of sections from part 23, amendment 23-64, followed by their corresponding MOC accepted by this document:

23.1457: ASTM F3264-17, section 9.12 23.1459: ASTM F3264-17, section 9.13 23.1529: ASTM F3264-17, section 10.6 Subpart B—Flight 23.2100: ASTM F3264-17, section 5.1 23.2105: ASTM F3264-17, section 5.2 23.2110: ASTM F3264-17, section 5.3 23.2115: ASTM F3264-17, section 5.4 23.2120: ASTM F3264-17, section 5.5 23.2125: ASTM F3264-17, section 5.6 23.2130: ASTM F3264-17, section 5.7 23.2135: ASTM F3264-17, section 5.8, combined with the changes in the following table: Replace: With: ASTM F3173/F3173M-17, Sections 4.9.1.1 and 4.9.1.2 FAA 4.9.1.1 and 4.9.1.2:
  • 4.9.1.1: “For a level 1 or 2 airplane, or level 3 or 4 airplane of 6,000 pounds or less maximum weight, 5 seconds from initiation of roll and”
  • 4.9.1.2: “For a level 3 or 4 airplane of over 6,000 pounds maximum weight, (W+500)/1300 seconds, but not more than 10 seconds, where W is the weight in pounds.” ASTM F3173/F3173M-17, Sections 4.9.3.1 and 4.9.3.2 FAA 4.9.3.1 and 4.9.3.2:
  • 4.9.3.1: “For a level 1 or 2 airplane, or level 3 or 4 airplane of 6,000 pounds or less maximum weight, 4 seconds from initiation of roll and”
  • 4.9.3.2: “For a level 3 or 4 airplane of over 6,000 pounds maximum weight, (W+2,800)/2,200 seconds, but not more than 7 seconds, where W is the weight in pounds.”
    23.2140: ASTM F3264-17, section 5.9 23.2145: ASTM F3264-17, section 5.10 23.2150: ASTM F3264-17, section 5.11 23.2155: ASTM F3264-17, section 5.12 23.2160: ASTM F3264-17, section 5.13 23.2165: ASTM F3264-17, section 5.14 Subpart C—Structures 23.2200: ASTM F3264-17, Section 6.1, combined with the changes in the following table: Replace: With: ASTM F3116/F3116M-15, Section 5.1.3.1(1) FAA 5.1.3.1(1):
  • “VS is a 1g computed stalling speed with flaps retracted (normally based on the maximum airplane normal force coefficient, CNA) at the design maximum takeoff weight.”
  • 23.2210: ASTM F3264-17, section 6.3 23.2215: ASTM F3264-17, section 6.4, combined with the changes in the following table: Replace: With: ASTM F3116/F3116M-15, Section 4.1.4 FAA 4.1.4:
  • “Appendix X1 through appendix X4 provide, within the limitations specified within the appendix, a simplified means of compliance with several of the requirements set forth in 4.2 to 4.26 and 7.1 to 7.9 that can be applied as one (but not the only) means to comply. If the simplified methods in appendix X1 through appendix X3 are used, they must be used together in their entirety.”
  • ASTM F3116/F3116M-15, Section 4.10.1.1 FAA 4.10.1.1:
  • “In condition A, assume 100% of the semispan wing airload acts on one side of the airplane and 75% of this load acts on the other side. For airplanes with maximum weight of 1,000 pounds or less, 70% of the load acts on the other side.”
  • ASTM F3116/F3116M-15, Section X1.1.1 FAA X1.1.1:
  • “The methods provided in this appendix provide one possible means (but not the only possible means) of compliance and can only be applied to low-speed, level 1 and level 2 airplanes.”
  • ASTM F3116/F3116M-15, Section X1.1.4 X1.1.4 through X1.1.4.5: Same as published in F3116/F3116M-15.
  • Add FAA X1.1.4.6:
  • “Wings with winglets, tip tanks, or tip fins.”
  • 23.2220: ASTM F3264-17, section 6.5 23.2225: ASTM F3264-17, section 6.6, combined with the changes in the following table: Replace: With: ASTM F3116/F3116M-15, Section X2.1.1 FAA X2.1.1:
  • “The methods provided in this appendix provide one possible means (but not the only possible means) of compliance and can only be applied to low-speed, level 1 and level 2 airplanes.”
  • ASTM F3116/F3116M-15, Section X3.1.1 FAA X3.1.1:
  • “The methods provided in this appendix provide one possible means (but not the only possible means) of compliance and can only be applied to low-speed, level 1 and level 2 airplanes.”
  • ASTM F3116/F3116M-15, Section X4.1.1 FAA X4.1.1:
  • “The methods provided in this appendix provide one possible means (but not the only possible means) of compliance and can only be applied to low-speed, level 1 airplanes.”
  • 23.2230: ASTM F3264-17, section 6.7 23.2235: ASTM F3264-17, section 6.8, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 6.8.1 FAA 6.8.1:
  • “F3114-15 Standard Specification for Structures”.
  • 23.2240: ASTM F3264-17, section 6.9, combined with the changes in the following table: Replace: With: ASTM F3115/F3115M-15, Section 4.4.1 FAA 4.4.1:
  • “For metallic (aluminum), unpressurized, non-aerobatic, low-speed, level 1 airplanes, applicants can demonstrate a 10,000 hour safe-life by limiting the ‘1g' gross stress, at maximum takeoff weight, to no more than 5.5 ksi. The applicant must show effective stress concentration factors of 4 or less in highly loaded joints and use materials or material systems for which the physical and mechanical properties are well established.”
  • ASTM F3115/F3115M-15, Section 6.1 FAA 6.1:
  • “For bonded airframe structure, the residual strength of bonded joints shall be addressed as follows: For any bonded joint, the failure of which would result in catastrophic loss of the airplane, the limit load capacity must be substantiated by one of the following methods.”
  • 23.2245: ASTM F3264-17, section 6.10 23.2250: ASTM F3264-17, section 6.11 23.2255: ASTM F3264-17, section 6.12 23.2260: ASTM F3264-17, section 6.13 23.2265: ASTM F3264-17, section 6.14 23.2270: ASTM F3264-17, section 6.15 Subpart D—Design and Construction 23.2300: ASTM F3264-17, section 7.1, combined with the changes in the following table: Replace: With: ASTM F3232/F3232M-17, Table 1, Row 4.4.6 FAA Table 1, Row 4.4.6:
  • A white circle (“o”) in the following Aircraft Type Code (ATC) character fields: “Airworthiness Level—1” and “Stall Speed—L”; a mark-out (“x”) in the following ATC character field: “Number of Engines—M”; and no codes in any other ATC character field.
  • Note: This change applies the standard of ASTM F3232/F3232M-17, Section 4.4.6, to all single-engine airplanes except level 1 airplanes with a stall speed of 45 knots or less.
    23.2305: ASTM F3264-17, section 7.2 23.2315: ASTM F3264-17, section 7.4 23.2320: ASTM F3264-17, section 7.5 23.2325: ASTM F3264-17, section 7.6, combined with the changes in the following table: Replace: With: ASTM F3061/F3061M-17, Section 10.3.2 FAA 10.3.2:
  • “In each area where flammable fluids or vapors might escape by leakage of a fluid system, there must be means to minimize the probability of ignition of the fluids and vapors, and the resultant hazard if ignition does occur. These means must account for the factors prescribed in 10.3.3 through 10.3.7.”
  • 23.2330: ASTM F3264-17, section 7.7 23.2335: ASTM F3264-17, section 7.8 Subpart E—Powerplant 23.2400: ASTM F3264-17, section 8.1, combined with the changes in the following table: Replace: With: ASTM F3065/F3065M-15, Section 4.3 An FAA-accepted means of compliance for § 23.2400(c), such as the provisions of § 23.905(d), amendment 23-59. 23.2405: ASTM F3264-17, section 8.2 23.2410: ASTM F3264-17, section 8.3, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 8.3 8.3 through 8.3.2: Same as published in F3264-17.
  • Renumber 8.3.3 to 8.3.6.
  • Add FAA 8.3.3 through 8.3.5, and FAA 8.3.7:
  • 8.3.3: “F3063/F3063M—16a Standard Specification for Design and Integration of Fuel/Energy Storage and Delivery System Installations for Aeroplanes”.
  • 8.3.4: “F3064/F3064M—15 Standard Specification for Control, Operational Characteristics and Installation of Instruments and Sensors of Propulsion Systems”. 8.3.5: “F3065/F3065M—15 Standard Specification for Installation and Integration of Propeller System”. 8.3.7: “F3117—15 Standard Specification for Crew Interface in Aircraft”.
    23.2415: ASTM F3264-17, section 8.4, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 8.4 8.4 through 8.4.1: Same as published in F3264-17.
  • Renumber 8.4.2 to 8.4.3.
  • Add FAA 8.4.2:
  • F3063/F3063M—“16a Standard Specification for Design and Integration of Fuel/Energy Storage and Delivery System Installations for Aeroplanes”.
  • ASTM F3066/F3066M-15, Section 5.1 An FAA-accepted means of compliance for the induction system ice protection aspects of § 23.2415, such as the provisions of § 23.1093(a), amendment 23-51. ASTM F3066/F3066M-15, Section 5.2.1.1 FAA 5.2.1.1:
  • “Operate throughout its flight power range, including minimum descent idle speeds, in the icing and snow conditions specified in Specification F3120/F3120M, without the accumulation of ice on engine, inlet system components, or airframe components that would do any of the following:”
  • ASTM F3066/F3066M-15, Section 5.2.2 [Remove] ASTM F3066/F3066M-15, Sections 5.2.3, 5.2.3.1, and 5.2.3.2 FAA 5.2.2:
  • “Each turbine engine must idle for 30 min on the ground, with the air bleed available for engine icing protection at its critical condition, without adverse effect, in the ground icing conditions specified in Specification F3120/F3120M.”
  • FAA 5.2.2.1 Followed by momentary operation at takeoff power or thrust. FAA 5.2.2.2 During the 30 min of idle operation, the engine may be run up periodically to a moderate power or thrust setting.”
    23.2420: ASTM F3264-17, section 8.5, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 8.5 8.5 through 8.5.1: Same as published in F3264-17.
  • Remove 8.5.2 and 8.5.3.
  • Add FAA 8.5.2:
  • F3065/F3065M—“15 Standard Specification for Installation and Integration of Propeller System”.
  • 23.2425: ASTM F3264-17, section 8.6, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 8.6 8.6 through 8.6.2: Same as published in F3264-17.
  • Renumber 8.6.3 to 8.6.4.
  • Add FAA 8.6.3 and FAA 8.6.5: 8.6.3: “F3065/F3065M—15 Standard Specification for Installation and Integration of Propeller System”. 8.6.5: “F3117—15 Standard Specification for Crew Interface in Aircraft”.
    23.2430: ASTM F3264-17, section 8.7, combined with the changes in the following table: Replace: With: ASTM F3264-17, Section 8.7 8.7.1 through 8.7.5: Same as published in F3264-17. Add an FAA-accepted means of compliance for the fuel supply aspects of § 23.2430, such as the provisions of § 23.991(b), amendment 23-43. ASTM F3066/F3066M-15, Section 6.3 An FAA-accepted means of compliance for the fuel/oil tank aspects of § 23.2430, such as the provisions of § 23.967(d), amendment 23-43. 23.2435: ASTM F3264-17, section 8.8 23.2440: ASTM F3264-17, section 8.9, combined with the changes in the following table: Replace: With: ASTM Section 8.9, F3264-17 8.9 through 8.9.2: Same as published in F3264-17.
  • Renumber 8.9.3 to 8.9.4.
  • Renumber 8.9.4 to 8.9.5 and change to, “F3066/F3066M-15 Standard Specification for Powerplant Systems Specific Hazard Mitigation.” Add FAA 8.9.3: 8.9.3: “F3063/F3063M-16a Standard Specification for Design and Integration of Fuel/Energy Storage and Delivery System Installations for Aeroplanes.”
    Subpart F—Equipment 23.2500: ASTM F3264-17, section 9.1 23.2505: ASTM F3264-17, section 9.2 23.2510: ASTM F3264-17, section 9.3 23.2515: ASTM F3264-17, section 9.4 23.2520: ASTM F3264-17, section 9.5 23.2525: ASTM F3264-17, section 9.6 23.2530: ASTM F3264-17, section 9.7 23.2535: ASTM F3264-17, section 9.8 23.2540: ASTM F3264-17, section 9.9 23.2545: ASTM F3264-17, section 9.10 23.2550: ASTM F3061/F3061M-17, section 10.9 Subpart G—Flightcrew Interface and Other Information 23.2600: ASTM F3264-17, section 10.1, combined with the changes in the following table: Replace: With: ASTM Section 10.1, F3264-17 10.1.1 through 10.1.5: Same as published in F3264-17.
  • Add an FAA-accepted means of compliance for the windshield luminous transmittance aspects of § 23.2600, such as the provisions of § 23.775(e), amendment 23-49.
  • Add an FAA-accepted means of compliance for the pilot compartment view with formation of fog or frost aspects of § 23.2600, such as the provisions of § 23.773(b), amendment 23-45.
    23.2605: ASTM F3264-17, section 10.2 23.2610: ASTM F3264-17, section 10.3 23.2615: ASTM F3264-17, section 10.4, combined with the changes in the following table: Replace: With: ASTM Section 6, F3064/F3064M-15 An FAA-accepted means of compliance for the powerplant instruments aspects of § 23.2615, such as the provisions of § 23.1305, amendment 23-52. 23.2620: ASTM F3264-17, sections 5.15 and 10.5 Editorial, Reapproval, Revision Or Withdrawal

    The FAA expects a suitable consensus standard to be reviewed periodically. ASTM policy is that a consensus standard should be reviewed in its entirety by the responsible subcommittee and must be balloted for reapproval, revision, or withdrawal, within five years of its last approval date. ASTM reapproves a standard—denoted by the year of reapproval in parentheses (e.g., F2427-05a(2013))—to indicate completion of a review cycle with no technical changes made to the standard. ASTM issues editorial changes—denoted by a superscript epsilon in the standard designation (F3235-17 ε 1)—to correct information that does not change the meaning or intent of a standard. Any MOC accepted by this document that is based on a standard later reapproved or editorially changed is also considered accepted without the need for a NOA. ASTM revises a standard to make changes to its technical content. Revisions to consensus standards serving as the basis for MOC accepted by this document will not be automatically accepted and will require further FAA acceptance in order for the revisions to be an accepted MOC.

    Availability

    ASTM Standard F3264-17, “Standard Specification for Normal Category Aeroplanes Certification,” is available for online reading at https://www.astm.org/READINGLIBRARY/. ASTM International copyrights these consensus standards and charges the public a fee for service. Individual downloads or reprints of a standard (single or multiple copies, or special compilations and other related technical information) may be obtained through www.astm.org or by contacting ASTM at (610) 832-9585 (phone), (610) 832-9555 (fax), or through [email protected] (email). To inquire about consensus standard content and/or membership or about ASTM Offices abroad, contact Joe Koury, Staff Manager for Committee F44 on General Aviation: (610) 832-9804, [email protected].

    The FAA maintains a list of accepted MOCs on the FAA website at https://www.faa.gov/aircraft/air_cert/design_approvals/small_airplanes/small_airplanes_regs/.

    Issued in Kansas City, Missouri, on May 3, 2018. Pat Mullen, Manager, Small Airplanes Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-09990 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0775; Product Identifier 2017-NM-048-AD; Amendment 39-19272; AD 2018-09-15] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2016-25-18, which applied to certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. AD 2016-25-18 required an inspection for discrepancies of the attachment points of the links between the engine rear mount assemblies, and corrective actions if necessary. This AD requires an inspection of certain attachment points, corrective action if necessary, and replacement of certain bolts and nuts in the engine rear mount assemblies. This AD also adds airplanes to the applicability. This AD was prompted by the determination that replacement of certain nuts and bolts in the engine rear mount assemblies is necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective June 15, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of June 15, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of January 3, 2017 (81 FR 90961, December 16, 2016).

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone: 514-855-5000; fax: 514-855-7401; email: [email protected]; internet: http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0775.

    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-2017-0775; 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 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:

    Aziz Ahmed, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7329; fax: 516-794-5531.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-25-18, Amendment 39-18744 (81 FR 90961, December 16, 2016) (“AD 2016-25-18”). AD 2016-25-18 applied to certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on August 15, 2017 (82 FR 38626). The NPRM was prompted by the determination that replacement of certain nuts and bolts in the engine rear mount assemblies is necessary. The NPRM proposed to continue to require an inspection for discrepancies of the attachment points of the links between the engine rear mount assemblies, and corrective actions if necessary. The NPRM also proposed to require an inspection of certain attachment points, corrective action if necessary, and replacement of certain bolts and nuts in the engine rear mount assemblies. The NPRM also proposed to add airplanes to the applicability. We are issuing this AD to detect and correct broken engine attachment hardware, which could result in separation of an engine from the airplane.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2016-23R1, dated February 20, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

    Bombardier reported that during maintenance of a BD-700 aeroplane, the engine mount pin, part number (P/N) BRR15838, was found backed out of the rear mount link. The retaining bolt, P/N AS54020, which passes through the engine mount pin was also found fractured at the groove which holds the locking spring. An investigation revealed the most probable root cause of failure to be a single axial tension static overload, with no evidence of fatigue contributing to the failure.

    The above condition if not detected, may result in the loss of engine attachment to the airframe.

    As an interim corrective action, Bombardier issued Service Bulletins (SBs) 700-71-002, 700-71-6002, 700-71-5002, and 700-1A11-71-002 to inspect the attachment points of the links between the engine rear mount assemblies, and install replacement hardware if required.

    The original version of this [Canadian] AD was issued to mandate incorporation of the above Bombardier SBs to inspect and maintain integrity of the affected engine rear mount assembly.

    Revision 1 of this [Canadian] AD is issued to mandate incorporation of the Bombardier SBs 700-71-003, 700-71-6003, 700-71-5003, and 700-1A11-71-003 to replace the existing bolts and self-locking nuts with new bolts and nuts, as a final corrective action.

    The MCAI also adds airplanes having serial numbers 9764, 9766, and 9771 through 9785 inclusive to the applicability. Those airplanes are also affected by the identified unsafe condition. 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-2017-0775.

    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.

    Requests To Provide Credit for Actions Previously Accomplished

    NetJets Aviation requested that we provide credit for accomplishing the actions specified in paragraphs (j) and (k) of the proposed AD prior to the effective date of this AD. Bombardier requested that we provide credit for accomplishing the actions specified in paragraphs (k) and (l) of the proposed AD prior to the effective date of this AD.

    We acknowledge the commenters' requests and agree to clarify. Paragraph (f) of this AD states to accomplish the required actions within the compliance times specified, “unless already done.” Therefore, if operators have accomplished the actions required for compliance with this AD before the effective date of this AD, no further action is necessary. We have not revised this AD in this regard.

    Conclusion

    We reviewed the available data, including 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

    Bombardier, Inc. has issued the following service information. This service information describes procedures for an inspection for discrepancies of the attachment points of the links between the engine rear mount assemblies and corrective actions. These documents are distinct since they apply to different airplane models and serial numbers.

    • Bombardier Service Bulletin 700-1A11-71-002, Revision 01, dated June 30, 2016.

    • Bombardier Service Bulletin 700-71-002, Revision 01, dated June 30, 2016.

    • Bombardier Service Bulletin 700-71-5002, Revision 01, dated June 30, 2016.

    • Bombardier Service Bulletin 700-71-6002, Revision 01, dated June 30, 2016.

    Bombardier, Inc. has also issued the following service information. This service information describes procedures for nut and bolt replacements. These documents are distinct since they apply to different airplane models and serial numbers.

    • Bombardier Service Bulletin 700-1A11-71-003, dated December 5, 2016.

    • Bombardier Service Bulletin 700-71-003, dated December 5, 2016.

    • Bombardier Service Bulletin 700-71-5003, dated December 5, 2016.

    • Bombardier Service Bulletin 700-71-6003, dated December 5, 2016.

    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 97 airplanes of U.S. registry.

    The actions required by AD 2016-25-18, and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2016-25-18 is $85 per product.

    The retained on-condition costs in this AD take about 2 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $730 per product. Based on these figures, the estimated cost of the on-condition actions that are required by AD 2016-25-18 is $900 per product.

    We have received no definitive data that would enable us to provide cost estimates for other retained on-condition actions specified in AD 2016-25-18.

    We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost up to $14,940 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be up to $1,482,160, or up to $15,280 per product.

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

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

    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 removing Airworthiness Directive (AD) 2016-25-18, Amendment 39-18744 (81 FR 90961, December 16, 2016), and adding the following new AD: 2018-09-15 Bombardier, Inc.: Amendment 39-19272; Docket No. FAA-2017-0775; Product Identifier 2017-NM-048-AD. (a) Effective Date

    This AD is effective June 15, 2018.

    (b) Affected ADs

    This AD replaces AD 2016-25-18, Amendment 39-18744 (81 FR 90961, December 16, 2016) (“AD 2016-25-18”).

    (c) Applicability

    This AD applies to Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category, serial numbers (S/Ns) 9002 through 9785 inclusive, and 9998.

    (d) Subject

    Air Transport Association (ATA) of America Code 72, Engine.

    (e) Reason

    This AD was prompted by a report indicating that during maintenance, an engine mount pin was found backed out of the rear mount link, and the associated retaining bolt was also found fractured at the groove that holds the locking spring, and a determination that replacement of certain nuts and bolts in the engine rear mount assemblies is necessary. We are issuing this AD to detect and correct broken engine attachment hardware, which could result in separation of an engine from the airplane.

    (f) Compliance

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

    (g) Retained Inspection, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2016-25-18, with no changes. For airplanes having S/Ns 9002 through 9763 inclusive, 9765, 9767 through 9770 inclusive, and 9998: Within 500 flight hours or 4 months, whichever occurs first after January 3, 2017 (the effective date of AD 2016-25-18), do an inspection for discrepancies of the engine rear mount assemblies (including missing or broken bolts, missing nuts, incorrect torque values, and an incorrect gap between the bushing and washer); in accordance with Part A of the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) through (g)(4) of this AD. Accomplishing the actions required by paragraphs (j) and (k) of this AD terminates the requirements of this paragraph.

    (1) Bombardier Service Bulletin 700-1A11-71-002, Revision 01, dated June 30, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (2) Bombardier Service Bulletin 700-71-002, Revision 01, dated June 30, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (3) Bombardier Service Bulletin 700-71-5002, Revision 01, dated June 30, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (4) Bombardier Service Bulletin 700-71-6002, Revision 01, dated June 30, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (h) Retained Corrective Action for Paragraph (g) of This AD, With No Changes

    This paragraph restates the requirements of paragraph (h) of AD 2016-25-18, with no changes. If any discrepancy is detected during the inspection required by paragraph (g) of this AD, before further flight, replace missing parts and correct noncompliant gaps and bolt torque, as specified in the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) through (g)(4) of this AD, except as required by paragraph (i) of this AD. Accomplishing the actions required by paragraphs (j) and (k) of this AD terminates the requirements of this paragraph.

    (i) Retained Exception to Service Information Specifications, With No Changes

    This paragraph restates the requirements of paragraph (i) of AD 2016-25-18, with no changes. Where the applicable Bombardier service bulletin specified in paragraphs (g)(1) through (g)(4) of this AD provides no instructions for corrective actions, or specifies to contact Bombardier for appropriate action, accomplish corrective actions in accordance with the procedures specified in paragraph (o)(2) of this AD.

    (j) New Requirement of This AD: Gap Measurement

    Within 1,000 flight hours or 12 months, whichever occurs first after the effective date of this AD: Measure the gaps between the applicable shouldered bushing fitted on the mount beam and the washer; and between the applicable engine ring lug and the head of the mount pin to determine if the gaps are within acceptable limits; in accordance with Part A of the Accomplishment Instructions of the applicable service information specified in paragraphs (j)(1) through (j)(4) of this AD. Accomplishing the actions required by paragraphs (j) and (k) of this AD terminates the requirements of paragraphs (g) and (h) of this AD.

    (1) Bombardier Service Bulletin 700-1A11-71-003, dated December 5, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (2) Bombardier Service Bulletin 700-71-003, dated December 5, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (3) Bombardier Service Bulletin 700-71-5003, dated December 5, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (4) Bombardier Service Bulletin 700-71-6003, dated December 5, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (k) New Requirement of This AD: Nut and Bolt Replacements, and Gap Measurement

    Within 1,000 flight hours or 12 months, whichever occurs first after the effective date of this AD: Replace the nuts having part number (P/N) AS54365 and the bolts having P/N AS54020 and AS54002 in the engine rear mount assembly with new nuts and new bolts; and do the gap measurement to determine if the gap is within acceptable limits; in accordance with Part B of the Accomplishment Instructions of the applicable service information specified in paragraphs (j)(1) through (j)(4) of this AD.

    (l) New Requirement of This AD: Corrective Action

    If any gap is detected, during any measurement required by paragraph (j) or (k) of this AD, that is not within the applicable limits specified in the service information specified in paragraphs (j)(1) through (j)(4) of this AD, before further flight repair using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (m) No Reporting Required

    Although the service information identified in paragraphs (j)(1) through (j)(4) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.

    (n) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before January 3, 2017 (the effective date of AD 2016-25-18), in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (n)(1) through (n)(4) of this AD.

    (1) Bombardier Service Bulletin 700-1A11-71-002, dated May 31, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (2) Bombardier Service Bulletin 700-71-002, dated May 31, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (3) Bombardier Service Bulletin 700-71-5002, dated May 31, 2016 (for Bombardier Model BD-700-1A11 airplanes).

    (4) Bombardier Service Bulletin 700-71-6002, dated May 31, 2016 (for Bombardier Model BD-700-1A10 airplanes).

    (o) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, FAA, New York ACO 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 certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7300; fax: 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or TCCA; or Bombardier, Inc.'s TCCA DAO. If approved by the DAO, the approval must include the DAO-authorized signature.

    (p) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2016-23R1, dated February 20, 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-2017-0775.

    (2) For more information about this AD, contact Aziz Ahmed, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7329; fax: 516-794-5531.

    (3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (q)(5) and (q)(6) of this AD.

    (q) 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.

    (3) The following service information was approved for IBR on June 15, 2018.

    (i) Bombardier Service Bulletin 700-1A11-71-003, dated December 5, 2016.

    (ii) Bombardier Service Bulletin 700-71-003, dated December 5, 2016.

    (iii) Bombardier Service Bulletin 700-71-5003, dated December 5, 2016.

    (iv) Bombardier Service Bulletin 700-71-6003, dated December 5, 2016.

    (4) The following service information was approved for IBR on January 3, 2017 (81 FR 90961, December 16, 2016).

    (i) Bombardier Service Bulletin 700-1A11-71-002, Revision 01, dated June 30, 2016.

    (ii) Bombardier Service Bulletin 700-71-002, Revision 01, dated June 30, 2016.

    (iii) Bombardier Service Bulletin 700-71-5002, Revision 01, dated June 30, 2016.

    (iv) Bombardier Service Bulletin 700-71-6002, Revision 01, dated June 30, 2016.

    (5) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone: 514-855-5000; fax: 514-855-7401; email: [email protected]; internet: http://www.bombardier.com.

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

    (7) 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 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09734 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0363; Product Identifier 2017-NM-108-AD; Amendment 39-19268; AD 2018-09-11] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-301, -321, -322, -341, and -342 airplanes; Model A340-200 series airplanes; and Model A340-300 series airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition on these products, and doing the actions specified in those instructions. This AD was prompted by reports of cracks on both left-hand (LH) and right-hand (RH) sides on certain frame (FR) locations. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD becomes effective May 29, 2018.

    We must receive comments on this AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0363; or in person at the Docket Operations office 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 Operations office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax: 206-231-3229.

    SUPPLEMENTARY INFORMATION: Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2011-0171R1, dated January 11, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-301, -321, -322, -341, and -342 airplanes; Model A340-200 series airplanes; and Model A340-300 series airplanes. The MCAI states:

    Fatigue damage has been found on the A330/A340 full scale fatigue test specimen in the FR40-to-fuselage skin panel junction. Corrective actions consisted of the following actions:

    —in-service installation of an internal reinforcing strap on related junction required by DGAC France AD 1999-448-126(B) and AD 2001-070(B),

    —retrofit improvement of internal reinforcing strap fatigue life through recommended Airbus SB A330-53-3145, and

    —new design in production through Airbus modification 44360.

    Recently, during embodiment of a FR40 web repair on an A330 aeroplane and during FR40 keel beam fitting replacement on an A340 aeroplane, this internal strap was removed and rototest inspection was performed on several holes. Cracks were found on both left-hand (LH) and right-hand (RH) sides on internal strap, or butt strap, or keel beam fitting, or forward fitting FR40 flange.

    This condition, if not detected and corrected, could lead to crack propagation, possibly resulting in reduced structural integrity of the fuselage.

    For the reasons described above, this [EASA] AD requires repetitive High Frequency Eddy Current (HFEC) rototest inspections on the affected adjacent holes on both LH and RH sides between stringer 38 and 39 at the FR40-to-fuselage panel junction, and in case of crack finding, accomplishment of the associated corrective actions.

    You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0363.

    FAA's Determination and Requirements of This AD

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

    FAA's Determination of the Effective Date

    Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0363; Product Identifier 2017-NM-108-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

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

    Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, we provide the following cost estimates to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Repetitive special detailed inspection 54 work-hours × $85 per hour = $4,590 per inspection cycle $0 $4,590 per inspection cycle.

    We estimate the following costs to do any necessary on-condition repair that would be required based on the results of the required actions:

    On-Condition Costs Action Labor cost Parts cost Cost per product Repair 9 work-hours × $85 per hour = $765 Up to $3,200 Up to $3,965. 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): 2018-09-11 Airbus: Amendment 39-19268; Docket No. FAA-2018-0363; Product Identifier 2017-NM-108-AD. (a) Effective Date

    This AD becomes effective May 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, on which Airbus modification 44360 has not been embodied in production.

    (1) Airbus Model A330-301, -321, -322, -341, and -342 airplanes, all manufacturer serial numbers on which Airbus Service Bulletin A330-53-3093 has been embodied in service, except those on which Airbus Service Bulletin A330-53-3145 has been embodied in service.

    (2) Airbus Model A340-211, -212, -213 airplanes, all manufacturer serial numbers on which Airbus Service Bulletin A340-53-4104 has been embodied in service.

    (3) Airbus Model A340-311, -312, and -313 airplanes, all manufacturer serial numbers on which Airbus Service Bulletin A340-53-4104 has been embodied in service.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by reports of cracks on both left-hand (LH) and right-hand (RH) sides on certain frame (FR) 40 locations. We are issuing this AD to detect and correct cracks of the fuselage panel junction fasteners at FR40 on both LH and RH sides. Such a condition could lead to crack propagation, possibly resulting in reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Required Action(s)

    Within 30 days after the effective date of this AD, request instructions from the Manager, International Section, Transport Standards Branch, FAA, to address the unsafe condition specified in paragraph (e) of this AD; and accomplish the actions at the times specified in, and in accordance with, those instructions. Guidance can be found in Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) AD 2011-0171R1, dated January 11, 2013.

    (h) 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 (i)(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.

    (i) Related Information

    (1) Refer to MCAI EASA AD 2011-0171R1, dated January 11, 2013, for related information. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0363.

    (2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax: 206-231-3229.

    (j) Material Incorporated by Reference

    None.

    Issued in Des Moines, Washington, on April 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09848 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1100; Product Identifier 2017-NM-077-AD; Amendment 39-19273; AD 2018-09-16] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2015-15-13, which applied to certain Airbus Model A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. AD 2015-15-13 required a modification of the potable water service panel and waste water service panel, including doing applicable related investigative and corrective actions. This AD requires a modification of the waste water and potable water service panels with new compliance times. This AD also removes certain airplanes from the applicability and adds Model A320-216 airplanes to the applicability. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the potable water and waste water service panel areas are subject to widespread fatigue damage (WFD). We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective June 15, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of June 15, 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-2017-1100.

    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-2017-1100; 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 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 to supersede AD 2015-15-13, Amendment 39-18223 (80 FR 45857, August 3, 2015) (“AD 2015-15-13”). AD 2015-15-13 applied to certain Airbus Model A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321 series airplanes. The NPRM published in the Federal Register on December 14, 2017 (82 FR 58772). The NPRM was prompted by an evaluation by the DAH indicating that the potable water and waste service panel areas are subject to WFD. The NPRM proposed to require modification of the waste water and potable water service panels with new compliance times. The NPRM also proposed to remove certain airplanes from the applicability and add Model A320-216 airplanes to the applicability. We are issuing this AD to prevent cracking of the potable water and waste water service panel areas, which could result in reduced structural integrity of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0098, dated June 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A319 series airplanes; Airbus Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:

    During the full scale fatigue test on A320-200, it was noticed that, due to fatigue, cracks could initiate at the potable water and waste water service panel areas.

    This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.

    Prompted by these findings, Airworthiness Limitation Section (ALS) Part 2 tasks were introduced for the affected aeroplanes. Since those actions were taken, Airbus developed production mod 160055 and mod 160056 to embody reinforcements (cold working on certain rivet rows) of the potable water and waste water service panels, and published associated Airbus Service Bulletin (SB) A320-53-1272 and Airbus SB A320-53-1267 for in-service embodiment. Complementary design office studies highlighted that the “Sharklets” installation on certain aeroplanes has a significant impact on the aeroplane structure (particularly, A319 and A320 post-mod 160001, A320 post-SB A320-57-1193 (mod 160080), and A321 post-mod 160021), leading to different compliance times, depending on aeroplane configuration.

    Consequently, EASA issued AD 2014-0081 [which corresponds to FAA AD 2015-15-13] to require reinforcement of the potable water and waste water service panels. Accomplishment of these modifications cancelled the need for the related ALS Part 2 Tasks.

    Since that [EASA] AD was issued, further investigations linked to the Widespread Fatigue Damage (WFD) analysis highlighted that, to meet the WFD requirements, it is necessary that the affected modification is not accomplished before reaching a certain threshold, by imposing a so-called “window of embodiment”. Consequently, Airbus revised SB A320-53-1272 (now at revision (Rev.) 04) and SB A320-53-1267 (now at Rev. 05).

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2014-0081, which is superseded, and introduces additional compliance times for those actions.

    This AD also removes Model A319 series airplanes on which modification 28162, 28238, and 28342 have been embodied (“Corporate Jet” modifications) from the applicability because production modifications mitigated the risk associated with the unsafe condition. This AD also adds Model A320-216 airplanes to the applicability, because those airplanes are affected by the identified unsafe condition.

    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-2017-1100.

    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 stated support for the NPRM.

    Request To Fix Typographical Error in Heading of Table 1 of the Proposed AD

    Airbus requested that the typographical error in table 1 to paragraphs (g)(1) and (i) of the proposed AD be changed from “portable water” to “potable water.”

    We agree with the commenter's request and have revised the heading of table 1 of this AD accordingly.

    Request To Fix Typographical Error in a Compliance Time Specified in Table 2 of the Proposed AD

    Airbus requested that the typographical error in the proposed compliance time in table 2 to paragraphs (h)(1) and (i) of the proposed AD affecting airplanes “A319, pre-modification 160001 and pre-service bulletin A320-57-1193,” be changed from “28,600 total flight cycles” to “38,600 total flight cycles.”

    We agree with the commenter's request and have corrected the specified compliance time in table 2 of this AD accordingly.

    Request for Credit for Previous Actions

    An anonymous commenter requested that certain service information be added to the Credit for Previous Actions section in the proposed AD. The commenter stated that Alternative Method of Compliance (AMOC) ANM-116-17-195 allows the use of Airbus Service Bulletin A320-53-1272, Revision 04, dated November 29, 2016; and Airbus Service Bulletin A320-53-1267, Revision 05, dated November 29, 2016; with respect to AD 2015-15-13. The commenter pointed out that these are the same revision levels specified for the requirements in the proposed AD.

    We do not agree with the request. We recognize that it is possible to have already accomplished Airbus Service Bulletin A320-53-1272, Revision 04, dated November 29, 2016; and Airbus Service Bulletin A320-53-1267, Revision 05, dated November 29, 2016; before this AD becomes effective. However, this service information is required for the actions identified in this AD. Paragraph (f) “Compliance,” of this AD states, “Comply with this AD within the compliance times specified, unless already done.” If operators have already completed the requirements of this AD, then this AD does not require that those actions be repeated. We have made no change to this AD in this regard.

    Conclusion

    We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these 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.

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A320-53-1267, Revision 05, dated November 29, 2016, which describes procedures for modifying the waste water service panel. Airbus has also issued Service Bulletin A320-53-1272, Revision 04, dated November 29, 2016, which describes procedures for modifying the potable water service panel. Both modifications include a check of the diameter of the holes of removed fasteners, a related investigative action (rotating probe inspection for cracking on the holes of the removed fasteners) and a corrective action (repair). This service information is unique because it applies to different service panels. 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.

    Explanation of Compliance Time

    The compliance time for the replacement specified in this AD for addressing WFD was established to ensure that discrepant structure is replaced before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. We will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

    Costs of Compliance

    We estimate that this AD affects 851 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 (new action) 27 work-hours × $85 per hour = $2,295 $700 $2,995 $2,548,745

    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 removing Airworthiness Directive (AD) 2015-15-13, Amendment 39-18223 (80 FR 45857, August 3, 2015), and adding the following new AD: 2018-09-16 Airbus: Amendment 39-19273; Docket No. FAA-2017-1100; Product Identifier 2017-NM-077-AD. (a) Effective Date

    This AD is effective June 15, 2018.

    (b) Affected ADs

    This AD replaces AD 2015-15-13, Amendment 39-18223 (80 FR 45857, August 3, 2015) (“AD 2015-15-13”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, except for those airplanes on which Airbus modification 160055 or modification 160056 has been embodied in production, and except for Model A319 series airplanes on which modification 28162, 28238, and 28342 have been embodied (“Corporate Jet”).

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

    (2) Airbus Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes.

    (3) Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the potable water and waste water service panel areas are subject to widespread fatigue damage (WFD). We are issuing this AD to prevent cracking of the potable water and waste water service panel areas, which could result in reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Modification of the Potable Water Service Panel

    (1) Within the compliance times specified in table 1 to paragraphs (g)(1) and (i) of this AD, as applicable, modify the potable water service panel, including doing a check of the diameter of the holes of removed fasteners, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1272, Revision 04, dated November 29, 2016, except as required by paragraph (g)(2) of this AD. Do all applicable related investigative and corrective actions before further flight.

    BILLING CODE 4910-13-P ER11MY18.000

    (2) Where Airbus Service Bulletin A320-53-1272, Revision 04, dated November 29, 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 (m)(2) of this AD.

    (h) Modification of the Waste Water Service Panel

    (1) Within the compliance times specified in table 2 to paragraphs (h)(1) and (i) of this AD, as applicable, modify the waste water service panel, including doing a check of the diameter of the holes of removed fasteners, and do all applicable related investigative and corrective actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1267, Revision 05, dated November 29, 2016, except as required by paragraph (h)(2) of this AD. Do all applicable related investigative and corrective actions before further flight.

    ER11MY18.001

    (2) Where Airbus Service Bulletin A320-53-1267, Revision 05, dated November 29, 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 (m)(2) of this AD.

    (i) Corrective Action for Airplanes With Certain Modifications

    For airplanes on which the modification, as required by paragraph (g) or (h) of this AD, as applicable, was accomplished before reaching the applicable minimum compliance time as defined in table 1 to paragraphs (g)(1) and (i) of this AD or table 2 to paragraphs (h)(1) and (i) of this AD: Before exceeding 60,000 flight cycles since the airplane's first flight, contact the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA) for approved corrective action instructions and accomplish those instructions accordingly. If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Terminating Action for Airplanes on Which the Potable Water Service Panel Modification Is Done

    Modification of an airplane as required by paragraph (g) of this AD terminates the requirement for accomplishing the ALS Part 2 task for that airplane as specified in table 3 to paragraph (j) of this AD, as applicable.

    ER11MY18.002 (k) Terminating Action for Airplanes on Which the Waste Water Service Panel Modification Is Done

    Modification of an airplane as required by paragraph (h) of this AD terminates the requirement for accomplishing the ALS Part 2 task for that airplane as specified in table 4 to paragraph (k) of this AD, as applicable.

    ER11MY18.003 BILLING CODE 4910-13-C (l) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (g) of this AD if those actions were performed before the effective date of this AD using the service information in paragraphs (l)(1)(i) through (l)(1)(iv) of this AD.

    (i) Airbus Service Bulletin A320-53-1272, Revision 00, dated January 10, 2013, which is not incorporated by reference in this AD.

    (ii) Airbus Service Bulletin A320-53-1272, Revision 01, dated August 6, 2013, which is not incorporated by reference in this AD.

    (iii) Airbus Service Bulletin A320-53-1272, Revision 02, dated May 19, 2014, which was incorporated by reference in AD 2015-15-13.

    (iv) Airbus Service Bulletin A320-53-1272, Revision 03, dated November 26, 2015, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraph (h) of this AD if those actions were performed before the effective date of this AD using the service information in paragraphs (l)(2)(i) through (l)(2)(v) of this AD.

    (i) Airbus Service Bulletin A320-53-1267, Revision 00, dated June 24, 2013, which is not incorporated by reference in this AD.

    (ii) Airbus Service Bulletin A320-53-1267, Revision 01, dated October 2, 2013, which is not incorporated by reference in this AD.

    (iii) Airbus Service Bulletin A320-53-1267, Revision 02, dated May 19, 2014, which was incorporated by reference in AD 2015-15-13.

    (iv) Airbus Service Bulletin A320-53-1267, Revision 03, dated November 26, 2015, which is not incorporated by reference in this AD.

    (v) Airbus Service Bulletin A320-53-1267, Revision 04, dated February 1, 2016, which is not incorporated by reference in this AD.

    (m) 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 (n)(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 the 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 paragraphs (g)(2) and (h)(2) 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.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0098, dated June 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-2017-1100.

    (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.

    (3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(3) and (o)(4) of this AD.

    (o) 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 A320-53-1272, Revision 04, dated November 29, 2016.

    (ii) Airbus Service Bulletin A320-53-1267, Revision 05, dated November 29, 2016.

    (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 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09862 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0398; Product Identifier 2017-NM-113-AD; Amendment 39-19277; AD 2018-10-02] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 787-8 airplanes. This AD requires inspecting the part number of the occupant restraint system on the standard attendant seats, and doing additional inspections and corrective actions if necessary. This AD was prompted by a report of loose attachment bolts on the occupant restraint system on a standard attendant seat due to the bolts being over-torqued during production. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective May 29, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 29, 2018.

    We must receive comments on this AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0398.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0398; 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 final rule, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Julie Moon, Aerospace Engineer, Cabin Safety and Environmental Systems Section, Seattle ACO Branch, FAA, 2200 South 216th St., Des Moines, WA 98198-6547; phone: 206-231-3571; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We have received a report of loose attachment bolts on the occupant restraint system on a standard attendant seat due to the bolts being over-torqued during production. One operator reported that a seat belt lower mount helicoil was detached from the seat pan lever while the attachment bolt was still threaded into the helicoil. Investigation revealed that the attachment bolt was probably over-torqued during production. Over-torqueing the attachment bolt could damage the bolt or the helicoil installation, and reduce the strength of the restraint system. Failure of the restraint system of the attendant seat during turbulence or a high-G load event could result in serious injury.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014. This service information describes procedures for inspecting the part number of the occupant restraint system on the standard attendant seats, and doing additional inspections and corrective actions if necessary. The additional inspections include a general visual inspection for any gap of the interface of the lever and spacer, a general visual inspection for any flattened or stripped threads, verification that the lap belt bolt helicoil in the lever does not protrude beyond the bottom surface of the counterbore, and a general visual inspection for a visible metal shaving or fragments of the lap belt bolt and lever helicoil. Corrective actions include re-torqueing and reworking the bolts and lever. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    AD Requirements

    This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this AD and the Service Information.”

    Difference Between This AD and the Service Information

    Operators should note that, although the service bulletin recommends accomplishing the inspection of the occupant restraint system within 50 months (after the release of the service bulletin), the FAA has determined that accomplishing the inspection within five years after the effective date of this AD is adequate to address the identified unsafe condition. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspection (one hour). In light of all of these factors, the FAA finds a five-year compliance time for completing the inspection is warranted, in that it represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This difference has been coordinated with Boeing.

    FAA's Justification and Determination of the Effective Date

    There are currently no domestic operators of this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0398 and Product Identifier 2017-NM-113-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule 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 final rule.

    Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the following cost estimates to comply with this AD would apply:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Inspection for part number (P/N) 1 work-hour × $85 per hour = $85 $0 $85 Inspection of affected attendant seats 2 work-hours × $85 per hour = $170 0 170

    We estimate the following costs to do any necessary rework that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need this rework:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Rework 2 work-hours × $85 per hour = $170 $0 $170
    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

    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): 2018-10-02 The Boeing Company: Amendment 39-19277; Docket No. FAA-2018-0398; Product Identifier 2017-NM-113-AD. (a) Effective Date

    This AD is effective May 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 787-8 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

    (e) Unsafe Condition

    This AD was prompted by a report of loose attachment bolts on the occupant restraint system on a standard attendant seat due to the bolts being over-torqued. We are issuing this AD to address potential failure of the restraint system of the attendant seat during turbulence or a high-G load event, which could result in serious injury.

    (f) Compliance

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

    (g) Inspection and Applicable Corrective Actions

    Within 5 years after the effective date of this AD: Inspect the occupant restraint system on the standard attendant seats for any restraint system having a part number identified in the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014.

    (1) For any affected occupant restraint system: Within 5 years after the effective date of this AD, inspect the affected attendant seat for discrepancies, including a general visual inspection for any gap of the interface of the lever and spacer, a general visual inspection for any flattened or stripped threads, verification that the lap belt bolt helicoil in the lever does not protrude beyond the bottom surface of the counterbore, and a general visual inspection for visible metal shavings or fragments of the lap belt bolt and lever helicoil; and do all applicable torqueing of the lap belt bolt, in accordance with the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014.

    (2) For any discrepant attendant seat, before further flight rework the attachment bolt, the seat pan lever and bolts, and the dampener bolt, in accordance with the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014.

    Note 1 to paragraph (g) of this AD:

    Guidance on the inspections and rework can be found in Goodrich Service Bulletin 2787-25-009, dated June 28, 2013.

    (h) Inspection Definition

    For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”

    (i) Parts Installation Prohibition

    As of the effective date of this AD, no person may install an occupant restraint system having a part number identified in the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014, on any airplane.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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)(1) of this AD. Information may be emailed to: [email protected]

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (k) Related Information

    (1) For more information about this AD, contact Julie Moon, Aerospace Engineer, Cabin Safety and Environmental Systems Section, Seattle ACO Branch, FAA, 2200 South 216th St., Des Moines, WA 98198-6547; phone: 206-231-3571; email: [email protected]

    (2) For Goodrich service information identified in this AD, contact Goodrich Corporation, Aircraft Interior Products, ATTN: Technical Publications, 3414 South Fifth Street, Phoenix, AZ 85040-1169; telephone 602-243-2200; internet http://www.goodrich.com/TechPubs.

    (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) Boeing Service Bulletin B787-81205-SB250052-00, Issue 001, dated January 27, 2014.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com.

    (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 May 1, 2018. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09747 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0970; Airspace Docket No. 16-AAL-6] RIN 2120-AA66 Establishment of Class E Airspace, Manley Hot Springs, AK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace extending upward from 700 feet above the surface at Manley Hot Springs Airport, Manley Hot Springs, AK, to accommodate new area navigation (RNAV) procedures at the airport. This action ensures the safety and management of instrument flight rules (IFR) operations within the National Airspace System. Also, this action corrects a rounding error of one second in degrees of latitude for the geographic coordinates of 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 this material at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Manley Hot Springs Airport, Manley Hot Springs, AK, to support standard instrument approach procedures for IFR operations at the airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 58142; December 11, 2017) for Docket No. FAA-2017-0970 to establish Class E airspace extending upward from 700 feet above the surface at Manley Hot Springs Airport, Manley Hot Springs, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Subsequent to publication, the FAA found a one-second rounding error in degrees of latitude for the geographic coordinates for the airport. A correction to the error is included in this action.

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

    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 establishes Class E airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Manley Hot Springs Airport. This amendment also makes a one second correction to degrees of latitude for the geographic coordinates of the airport from “lat. 64°59′16″ N” to “lat. 64°59′17″ N”

    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, will 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 5-6.5a. 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. AAL AK E5 Manley Hot Springs, AK [New] Manley Hot Springs Airport, AK (Lat. 64°59′17″ N, long. 150°38′51″ W)

    That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Manley Hot Springs Airport.

    Issued in Seattle, Washington, on May 4, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09987 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0973; Airspace Docket No. 17-ANM-30] RIN 2120-AA66 Establishment of Class E Airspace, Paris, ID AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace extending upward from 700 feet above the surface at Bear Lake County Airport, Paris, ID, to accommodate new area navigation (RNAV) procedures at the airport. This action is necessary for the safety and management of instrument flight rules (IFR) operations within the National Airspace System.

    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 this material at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the earth at Bear Lake County Airport, Paris, ID, to support IFR operations at the airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 60132; December 19, 2017) for Docket No. FAA-2017-0973 to establish Class E airspace extending upward from 700 feet above the surface at Bear Lake County Airport, Paris, ID. 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 designation 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 is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Bear Lake County Airport, Paris, ID, within a 6.6-mile radius of the airport, and within a rectangular segment east of the airport extending approximately 15.3 miles wide (from east to west) and 28.1 miles tall (from north to south), and a trapezoidal area west of the airport extending approximately 10.5 miles wide (from east to west) and 33.8 miles tall (from north to south).

    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, will 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 5-6.5a. 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. ANM ID E5 Paris, ID [New] Bear Lake County Airport, ID (Lat. 42°14′59″ N, long. 111°20′30″ W)

    That airspace extending upward from 700 feet above the surface of Bear Lake County Airport within the area bounded by lat. 42°29′26″ N, long. 111°36′13″ W; to lat. 42°29′32″ N, long. 111°28′55″ W; to lat. 42°21′52″ N, long. 111°28′07″ W; to the point where the airport 325° bearing intersects the airport 6.6-mile radius; thence clockwise along the 6.6-mile radius of the airport to the airport 017° bearing, to lat. 42°34′39″ N, long. 111°19′45″ W; to lat. 42°35′06″ N, long. 110°59′38″ W; to lat. 42°08′06″ N, long. 110°54′19″ W; to lat. 42°05′45″ N, long. 111°15′34″ W; to the point where the airport 150° bearing intersects the 6.6-mile radius of the airport, thence clockwise along the 6.6-mile radius of the airport to the airport 226° bearing, to lat. 41°55′22″ N, long. 111°25′20″ W; to lat. 41°55′58″ N, long. 111°44′44″ W; thence to the point of beginning.

    Issued in Seattle, Washington, on May 4, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09988 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF STATE 22 CFR Parts 50 and 51 [Public Notice 10383] RIN 1400-AD54 Passports AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule provides various changes and updates to the Department of State passport rules. The final rule incorporates statutory passport denial and revocation requirements for certain convicted sex offenders. It notes that, notwithstanding the legal bases for denial or revocation of a passport, the Department may issue a passport for direct return to the United States. It sets out the Department's procedures for denying and cancelling Consular Reports of Birth Abroad. Finally, the final rule provides additional information relating to the conduct of review hearings.

    DATES:

    This rule is effective on May 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Anita Mody, Office of Legal Affairs, Passport Services, (202) 485-6500, [email protected] Hearing- or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    The Department published a proposed rule, Public Notice 9804 at 82 FR 58778, December 14, 2017, with a request for comments, amending various sections of Parts 50 and 51 of Title 22 of the Code of Federal Regulations. The rule was proposed primarily to revise Department of State regulations relating to the denial and revocation of passports, and provide additional information relating to the conduct of review hearings. The rule and the Department's reasons for the changes were discussed in detail in Public Notice 9804. The Department is now promulgating a final rule.

    The final rule contains one minor change, one technical fix, and no substantive changes. The change, in response to a comment received, clarifies in 22 CFR 51.70(b)(3) that the section referenced only applies to passport cards.

    Analysis of Comments: The comment period for the proposed rule closed February 12, 2018, after a 60-day comment period. One comment was received. The comment raised two issues:

    (1) As 22 CFR 51.60(g) specifies that the Department shall not issue passport cards to certain convicted sex offenders, the parenthetical descriptor in proposed 22 CFR 51.70(b)(3): “Section 51.60(g) (denial of passports to certain convicted sex offenders)” should specify that it only applies to passport cards.

    Response: The Department's final rule specifies “cards” in the parenthetical descriptor, such that 22 CFR 51.70(b)(3) now reads: Section 51.60(g) (denial of passport cards to certain convicted sex offenders).

    (2) The governing statute, 22 U.S.C. 212b, allows but does not require the Department to revoke the existing passports held by covered sex offenders that do not bear the “unique identifier” required by that statute. See 22 U.S.C. 212b(b)(1) (“[T]he Secretary of State . . . may revoke a passport previously issued without [] an identifier of a covered sex offender.” [emphasis added]). The proposed rules therefore err in processing revocations on this basis in the same manner as revocations on other bases, such as a conviction for “sexual tourism” under 18 U.S.C. 2423 and 22 U.S.C. 212a(b)(1). The proposed rules also err in rendering the passports currently held by “covered sex offenders” to be invalid immediately upon approval of the notice of revocation. That is because revocations for a sexual tourism conviction (and for other reasons) are mandatory, while the revocation of passports issued to “covered sex offenders” is not mandatory under 22 U.S.C. 212b or any other provision of law. In addition, individuals convicted of sexual tourism are categorically ineligible to hold passports during the period following their conviction. In contrast, “covered sex offenders” under 22 U.S.C. 212b are allowed to carry their existing passports that do not bear the identifier for an indeterminate period of time, until that passport is revoke by the Department. Because “covered sex offenders” who currently possess passports are not in violation of the law, they should not be treated the same as individuals whose current possession of a passport is illegal. The governing statute, 22 U.S.C. 212b(b)(1), gives the Department the discretion to avoid this inequitable and unduly disruptive result by providing a reasonable time for “covered sex offenders” to apply for and obtain new, compliant passports before their existing passports are revoked. ACSOL therefore requests that the Department provide this accommodation by revising the Proposed Rules so that “covered sex offenders” are not prevented from possessing and using passports while they await the delivery of passports that comply with 22 U.S.C. 212b.”

    Response: The Department declines to process passport revocations differently when revoked based on discretionary authority versus where revocation is mandatory, and notes the effect of the decision to revoke the passport—making the passport invalid—is the same in both cases. Adopting the commenter's suggestion that a passport not become invalid after it was revoked would negate the purpose of the revocation action. Moreover, in response to concern that covered sex offenders be afforded an opportunity to apply for and obtain new, compliant passports before their existing passports are revoked, such persons are on notice about the new revocation grounds and may always apply for a new passport with the required endorsement prior to expiration of or revocation of their current one. To the extent the comment addresses the Department's determination to revoke passports under 22 U.S.C. 212b, such issues are outside the scope of the immediate rule as they are already specified in the current regulations at 22 CFR 51.60(a)(4) and 22 CFR 51.62(a)(1).

    Finally, the Department noticed a typographical error in a citation included in the proposed rule. The citation relating to qualified interpreters (see § 51.71(d)) should be “28 U.S.C. 1827.” It is corrected in this final rule.

    Regulatory Analysis and Notices Executive Orders 12866 and 13771

    The Department finds that this final rulemaking implements Congressional intent as reflected in the Immigration and Naturalization Act, and that the benefits of the rulemaking outweigh any costs to the public. The Office of Information and Regulatory Affairs has designated this final rule as non-significant within the meaning of Executive Order 12866. Consequently, no actions are required pursuant to Executive Order 13771.

    Consultations With Tribal Governments

    The Department has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not pre-empt Tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

    Paperwork Reduction Act

    This rule does not impose information collection requirements under the provisions of the Paperwork Reductions Act, 44 U.S.C. Chapter 35.

    The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not result in any such expenditure nor will it significantly or uniquely affect small governments.

    Executive Orders 12372 and 13132

    This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

    Executive Order 12988

    The Department of State has reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Small Business Regulatory Enforcement Fairness Act of 1996

    The Department does not believe this rulemaking is a major rule under the criteria of 5 U.S.C. 804.

    Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department certifies that this rule is not expected to have a significant impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and Executive Order 13272, section 3(b), as the rule being amended covers only individuals.

    List of Subjects 22 CFR Part 50

    Citizenship and naturalization.

    22 CFR Part 51

    Administrative practice and procedure, Drug traffic control, Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, 22 CFR parts 50 and 51 are amended as follows:

    PART 50—NATIONALITY PROCEDURES 1. The authority citation for part 50 continues to read as follows: Authority:

    22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.

    2. Amend § 50.7 by revising paragraph (d) to read as follows
    § 50.7 Consular Report of Birth Abroad of a Citizen of the United States of America.

    (d) A Consular Report of Birth Abroad may be cancelled in accordance with applicable provisions in 22 CFR 51.60 through 51.74.

    3. Amend § 50.11 by revising paragraph (b) to read as follows:
    § 50.11 Certificate of identity for travel to the United States to apply for admission.

    (b) When a diplomatic or consular officer denies an application for a certificate of identity under this section, the applicant may submit a written appeal to the Secretary through the U.S. embassy or consulate where the individual applied for the certificate of identity, stating the pertinent facts, the grounds upon which U.S. nationality is claimed, and his or her reasons for considering that the denial was not justified.

    PART 51—PASSPORTS 4. The authority citation for part 51 is revised to read as follows: Authority:

    8 U.S.C. 1504; 18 U.S.C. 1621, 2423; 22 U.S.C. 211a, 212, 212a, 212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2721, 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of P.L. 103-317, 108 Stat. 1760]; E.O. 11295, FR 10603; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of P.L. 109-210, 120 Stat. 319; Sec. 2 of P.L. 109-167, 119 Stat. 3578; Sec. 5 of P.L. 109-472, 120 Stat. 3554; P.L. 108-447, Div. B, Title IV 118 Stat. 2896; P.L. 108-458, 118 Stat. 3638, 3823.

    5. Amend § 51.4 by revising paragraph (g)(1) and adding paragraph (g)(8) to read as follows:
    § 51.4 Validity of passports.

    (g) * * *

    (1) The Department approves the revocation notification pursuant to § 51.65(a); or

    (8) The Department approves a Certificate of Loss of Nationality for the passport holder pursuant to § 50.40 of this chapter and 8 U.S.C. 1481.

    6. Revise the heading of subpart E to read as follows: Subpart E—Denial, Revocation, and Restriction of Passports and Cancellation of Consular Reports of Birth Abroad 7. Amend § 51.60 by adding paragraphs (h) and (i) to read as follows:
    § 51.60 Denial and restriction of passports.

    (h) The Department may not issue a passport, except a limited validity passport for direct return to the United States or in instances where the Department finds that emergency circumstances or humanitarian reasons exist, in any case in which the Department is notified by the Attorney General that, during the covered period as defined by 22 U.S.C. 212a:

    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, and

    (2) The individual used a passport or passport card or otherwise crossed an international border in committing the underlying offense.

    (i) In appropriate circumstances, where an individual's passport application is denied or passport revoked consistent with this part, the Department may issue a limited validity passport good only for direct return to the United States.

    8. Revise § 51.62 to read as follows:
    § 51.62 Revocation or limitation of passports and cancellation of Consular Reports of Birth Abroad.

    (a) The Department may revoke or limit a passport when:

    (1) The bearer of the passport may be denied a passport under 22 CFR 51.60 or 51.61 or any other applicable provision contained in this part;

    (2) The passport was illegally, fraudulently or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department; or

    (3) The passport has been fraudulently altered or misused.

    (b) The Department may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national, or the Department is on notice that the bearer's certificate of citizenship or certificate of naturalization has been cancelled.

    (c) The Department may cancel a Consular Report of Birth Abroad when:

    (1) The Consular Report of Birth Abroad was illegally, fraudulently or erroneously obtained from the Department, or was created through illegality or fraud practiced upon the Department;

    (2) The Consular Report of Birth Abroad has been fraudulently altered or misused; or

    (3) The Department has determined that the bearer of the Consular Report of Birth Abroad is not a U.S. national, or the Department is on notice that the bearer's certificate of citizenship has been cancelled.

    (d) The Department shall revoke a U.S. passport in any case in which the Department is notified by the Attorney General, that during the covered period as defined by 22 U.S.C. 212a:

    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, and

    (2) The individual used a passport or otherwise crossed an international border in committing the underlying offense.

    (3) Notwithstanding paragraphs (d)(1) and (2) of this section, the Department may issue a limited validity passport for direct return to the United States.

    9. Revise § 51.65 to read as follows:
    § 51.65 Notification of denial, revocation or cancellation of passports and Consular Reports of Birth Abroad.

    (a) The Department will send notice in writing to any person whose application for issuance of a passport or Consular Report of Birth Abroad has been denied, whose passport has been revoked, or whose Consular Report of Birth Abroad has been cancelled. The notification will set forth the specific reasons for the denial, revocation or cancellation and, if applicable, the procedures for review available under 22 CFR 51.70 through 51.74.

    (b) An application for a passport or Consular Report of Birth Abroad will be denied if an applicant fails to meet his or her burden of proof under the applicable regulations or otherwise does not provide documentation sufficient to establish entitlement to a passport or a Consular Report of Birth Abroad, or does not provide additional information as requested by the Department within the time provided in the notification by the Department that additional information is required. Thereafter, if an applicant wishes the Department to adjudicate his or her claim of entitlement to a passport or Consular Report of Birth Abroad, he or she must submit a new application, supporting documents, and photograph, along with all applicable fees.

    (c) The Department may, in its sole discretion, administratively re-open a previously filed passport or Consular Report of Birth Abroad application in order to issue a passport or Consular Report of Birth Abroad.

    10. Revise § 51.66 to read as follows:
    § 51.66 Surrender of passport and/or Consular Report of Birth Abroad.

    The bearer of a passport that is revoked or of a Consular Report of Birth Abroad that is cancelled must surrender it to the Department or its authorized representative upon demand.

    11. Revise § 51.70 to read as follows:
    § 51.70 Request for hearing to review certain denials and revocations.

    (a) A person whose passport has been denied or revoked under 22 CFR 51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled under § 51.62(c)(1) or § 51.62(c)(2), may request a hearing to review the basis for the denial, revocation, or cancellation, provided that the Department receives such a request, in writing, from such person or his or her attorney within 60 days of his or her receipt of the notice of the denial, revocation, or cancellation. Failure to timely request a hearing means the denial, revocation, or cancellation is the Department's final action.

    (b) The provisions of §§ 51.70 through 51.74 do not apply to any action of the Department denying, restricting, revoking, cancelling or invalidating a passport or Consular Report of Birth Abroad, or in any other way adversely affecting the ability of a person to receive or use a passport or Consular Report of Birth Abroad, for reasons not set forth in § 51.70(a), including, as applicable, those listed at:

    (1) Section 51.60(a) (instances where the Department may not issue a passport, except for direct return to the United States);

    (2) Section 51.60(f) (failure to provide a social security number, or purposefully providing an incorrect number);

    (3) Section 51.60(g) (denial of passport cards to certain convicted sex offenders);

    (4) Section 51.61(a) (denial of passports to certain convicted drug traffickers);

    (5) Section 51.62(b) (revocation of passports for non-U.S. nationals or where a certificate of citizenship or naturalization has been cancelled);

    (6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth Abroad upon the Department's determination that the bearer is not a U.S. national or where a certificate of citizenship has been cancelled);

    (7) Section 51.62(d) (revocation of passports issued to certain convicted sex offenders);

    (8) Section 51.64 (specially validated passports);

    (9) Any other provision not listed at § 51.70(a).

    (c) If a timely request for a hearing is made by a person seeking a hearing in accordance with these regulations, the Department will make reasonable efforts to hold the hearing within 90 days of the date the Department receives the request.

    (d) Within a reasonable period of time prior to the hearing, the Department will give the person requesting the hearing written notice of the date, time and place of the hearing and copies of the evidence relied on in denying, revoking, or cancelling the passport or Consular Report of Birth Abroad.

    (e) The person requesting the hearing may obtain one continuance, not to exceed an additional 90 days, upon written request. The request for a continuance must be received by the Department as soon as practicable and in no case less than five business days prior to the scheduled hearing date. Any further continuances are within the sole discretion of the Department.

    12. Revise § 51.71 to read as follows:
    § 51.71 The hearing.

    (a) The Department will name a hearing officer, who will generally be a Department employee from the Bureau of Consular Affairs. The hearing officer will make only preliminary findings of fact and submit recommendations based on the record of the hearing, as defined in 22 CFR 51.72, to the Deputy Assistant Secretary for Passport Services, or his or her designee, in the Bureau of Consular Affairs.

    (b) The hearing shall take place in Washington, DC or, if the person requesting the hearing is overseas, at the appropriate U.S. diplomatic or consular post. The person requesting the hearing must appear in person or with or through his or her attorney. Failure to appear at the scheduled hearing will constitute an abandonment of the request for a hearing, and the Department's revocation, cancellation or denial will be considered the Department's final action.

    (c) Any attorney appearing at a hearing must be admitted to practice in any state of the United States, the District of Columbia, or any territory or possession of the United States, or be admitted to practice before the courts of the country in which the hearing is to be held.

    (d) There is no right to subpoena witnesses or to conduct discovery. However, the person requesting the hearing may testify in person, offer evidence in his or her own behalf, present witnesses, and make arguments at the hearing. The person requesting the hearing is responsible for all costs associated with the presentation of his or her case, including the cost of interpreters, who must be certified in accordance with standards established for federal courts under 28 U.S.C. 1827. The Department may present witnesses, offer evidence, and make arguments in its behalf. The Department is responsible for all costs associated with the presentation of its case.

    (e) The hearing is informal and permissive. As such, the provisions of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of evidence also do not apply; however, the hearing officer may impose reasonable restrictions on relevancy, materiality, and competency of evidence presented. Testimony will be under oath or by affirmation under penalty of perjury. The hearing officer may not consider any information that is not also made available to the person requesting the hearing, the Department, and made a part of the record of the proceeding.

    (f) If any witness is unable to appear, the hearing officer may, in his or her discretion, accept an affidavit or sworn deposition testimony of the witness, the cost for which will be the responsibility of the requesting party, subject to such limits as the hearing officer deems appropriate.

    (g) The person requesting the hearing and the Department of State may submit written briefs or argument prior to the hearing, but it is not required. The hearing officer will specify the date and schedule for the parties to submit written briefs, should they choose to do so.

    (h) The purpose of the hearing is to provide the person requesting the hearing an opportunity to challenge the basis for the Department's decision to deny or revoke the passport, or cancel the Consular Report of Birth Abroad. The burden of production is on the Department, and the Department shall provide the evidence it relied upon in revoking or denying the passport, or cancelling the Consular Report of Birth Abroad, prior to the hearing. The burden of persuasion is on the person requesting the hearing, to prove by a preponderance of the evidence that the Department improperly revoked the passport or denied the passport application, or cancelled the Consular Report of Birth Abroad, based on the facts and law in effect at the time such action was taken.

    13. Revise § 51.72 to read as follows:
    § 51.72 Transcript and record of the hearing.

    A qualified reporter, provided by the Department, will make a complete verbatim transcript of the hearing. The person requesting the hearing or his or her attorney may review and purchase a copy of the transcript directly from the reporter. The hearing transcript and all the information and documents received by the hearing officer, whether or not deemed relevant, will constitute the record of the hearing. The hearing officer's preliminary findings and recommendations are deliberative, and shall not be considered part of the record unless adopted by the Deputy Assistant Secretary for Passport Services, or his or her designee.

    14. Revise § 51.73 to read as follows:
    § 51.73 Privacy of hearing.

    Only the person requesting the hearing, his or her attorney, an interpreter, the hearing officer, the reporter transcribing the hearing, and employees of the Department concerned with the presentation of the case may be present at the hearing. Witnesses may be present only while actually giving testimony or as otherwise directed by the hearing officer.

    15. Revise § 51.74 to read as follows:
    § 51.74 Final decision.

    After reviewing the record of the hearing and the preliminary findings of fact and recommendations of the hearing officer, and considering legal and policy considerations he or she deems relevant, the Deputy Assistant Secretary for Passport Services, or his or her designee, will decide whether to uphold the denial or revocation of the passport or cancellation of the Consular Report of Birth Abroad. The Department will promptly notify the person requesting the hearing of the decision in writing. If the decision is to uphold the denial, revocation, or cancellation, the notice will contain the reason(s) for the decision. The decision is final and is not subject to further administrative review.

    Dated: May 3, 2018. Carl C. Risch, Assistant Secretary of State for Consular Affairs, Department of State.
    [FR Doc. 2018-09995 Filed 5-10-18; 8:45 am] BILLING CODE 4710-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2017-0234] RIN 1625-AA00 Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is establishing a permanent safety zone surrounding the area of entry of lava from the Kilauea volcano into the Pacific Ocean on the southeast side of the Island of Hawaii, HI. This action is necessary to protect persons and vessels from the potential hazards associated with molten lava entering the ocean. This regulation prohibits persons and vessels from being in the safety zone during active lava flow reaching the Pacific Ocean on Kilauea volcano's southeast coast unless specifically authorized by the Captain of the Port Honolulu or a designated representative.

    DATES:

    This rule is effective without actual notice May 11, 2018. For purposes of enforcement, actual notice will be used if active lava associated with the Kilauea activity enters into the Pacific Ocean prior to May 11, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-0234 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Commander John Bannon, Waterways Management Division, Coast Guard; telephone 808-541-4359, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations BLS Bureau of Labor Statistics COTP Captain of the Port DHS Department of Homeland Security FR Federal Register FRFA Final regulatory flexibility analysis HVO Hawaii Volcano Observatory IRFA Initial regulatory flexibility analysis NAICS North American Industry Classification System NPRM Notice of proposed rulemaking OMB Office of Management and Budget § Section symbol RFA Regulatory Flexibility Act SNPRM Supplemental notice of proposed rulemaking TFR Temporary final rule U.S.C. United States Code II. Background Information and Regulatory History

    Molten lava that enters the ocean is potentially hazardous to anyone near it, particularly when lava deltas collapse. A lava delta is new land that forms when lava accumulates above sea level, and extends from the existing base of a sea cliff. Persons and vessels near active lava flow ocean-entry sites face potential hazards, including—

    • Plumes of hot, corrosive seawater laden with hydrochloric acid and fine volcanic particles that can irritate the skin, eyes, and lungs;

    • Explosions of debris and eruptions of scalding water from hot rock entering the ocean;

    • Sudden lava delta collapses; and

    • Waves associated with these explosions and collapses.

    Lava began entering the ocean at the Kamokuna lava delta on Kilauea volcano's south coast in July 2016. Lava continued to enter the ocean at the Kamokuna lava delta from July 2016 to mid-November 2017.

    Ocean safety concerns began on December 31, 2016, when a large portion of the new lava delta collapsed into the ocean, producing waves and explosions of debris at 19°19′12″ N, 155°02′24″ W near the Kamokuna entry point. Following this collapse, portions of the adjacent sea cliff continued to collapse into the Pacific Ocean, producing localized waves and showers of debris.

    In March 2017, a new delta began to form at the Kamokuna ocean-entry point, and from March 2017 to July 2017, several collapses of the lava bench were observed by National Park Service and Hawaiian Volcano Observatory (HVO) staff. Beginning in the middle of November 2017, the lava flow slowed down and subsequently stopped entering the ocean, and as of March 2018, the lava flow remains inactive.

    Though the Kamokuna lava delta is not currently active, this region and associated coastline remains hazardous both to visitors on land and to the boating public due to active seismic and lava activity associated with the Kilauea lava flow. According to the HVO, which is part of the U.S. Geological Survey and responsible for monitoring volcanoes and earthquakes in Hawaii, the lava delta remains unstable and resumed ocean lava flow is realistic. Hazards to the public include hot gases, lava, scalding water, unstable vertical sea cliffs and possible sudden explosions should the lava delta begin to collapse. Additionally, cracks parallel to the sea cliff in the surrounding area indicate that further collapses with little or no warning are possible. Therefore, the safety zone remains relevant. When the safety zone is being enforced, access into the safety zone can still be requested to the Captain of the Port (COTP) Honolulu.

    On March 28, 2017, the COTP Honolulu issued a temporary final rule (TFR) under docket number USCG-2017-0172. The TFR established a safety zone to immediately protect persons and vessels from the potential hazards associated with molten lava entering the ocean. The safety zone encompassed all waters extending 300 meters (984 feet) in every direction around all ocean-entry points of lava. The Coast Guard prohibited entry of persons or vessels into the safety zone, unless authorized by the COTP Honolulu, or his designated representative.

    The TFR was published in the Federal Register (82 FR 16109) on April 3, 2017. A six-month extension of the TFR was published in the Federal Register (82 FR 45461) on September 29, 2017, extending the TFR through March 28, 2018. The TFR extension allowed the Coast Guard to analyze the economic impact of the safety zone and provide for additional public comment.

    On April 3, 2017, the Coast Guard also published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 16142), which proposed to make the temporary safety zone a final rule, and invited the public to comment during the comment period. During this comment period, which ended June 2, 2017, we received 67 comments.

    On May 8, 2017, we held a public meeting in Hilo, HI, that allowed local citizens and small businesses affected by the TFR to discuss the lava safety concerns, the safety zone impact, and the impact the proposed rule would have on ocean users. Participants were encouraged to submit formal feedback to the rulemaking docket.

    On December 20, 2017, the Coast Guard published a supplemental notice of proposed rulemaking (SNPRM) in the Federal Register (82 FR 60341). Its purpose was to address additional concerns related to the potential impact of the safety zone on small entities should lava flow resume. Lava flow entering the ocean ended in November, 2017. The SNPRM addressed the past and future concerns, and invited the public to further comment during the comment period, which ended February 20, 2018. During this comment period, we received two comments that were not germane to the rulemaking and only one from the public.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed due to recent volcanic activity. Active eruption of lava and gas has recently commenced and continues from Kilauea Volcano. On Friday, May 4, 2018, a magnitude 6.9 earthquake was measured in the region and HVO advises that more should be expected with a larger aftershocks potentially producing rockfalls, localized tsunamis, and associated ash clouds. High levels of lava and volcanic gas including Sulphur Dioxide are being emitted from the fissure vents. In consideration of the events, safety hazards and concerns, the Coast Guard finds that good cause exists for making this regulation effective immediately. This rule is needed to protect personnel and vessels in the navigable waters with the safety zone.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Honolulu has determined that there are potential hazards associated with the molten lava at the Kamokuna lava delta or future locations associated with the Kilauea lava flow, which pose potential safety concerns for anyone within 300 meters of the ocean-entry point.

    The purpose of this rule is to establish a permanent safety zone around the lava flow entry area associated with the Kilauea lava delta entry coastline to mitigate ocean hazards during times when lava is entering the ocean. Additionally, this rule allows the Coast Guard to impose and enforce restrictions on vessels operating near the lava flow that enters the ocean as the Coast Guard determines necessary. This action is necessary to promote safe navigation, and to preserve the safety of life and property. Vessels capable of safely operating inside the safety zone may be authorized to enter by the COTP Honolulu or his designated representative. Vessels approved for transiting within the safety zone during active lava ocean entry are required to adhere to specific conditions set by the COTP Honolulu. Mariners who seek initial authorization to enter the safety zone when there is active lava ocean entry must submit a written request by email or letter. The request must explain how the vessel will operate safely in proximity to lava. A typical request should note the vessel's condition, the operator's familiarity with the surrounding waters, and any specific safety practices for operating near the lava ocean-entry points. Once initial authorization is received, a vessel owner or operator only needs to contact COTP Honolulu by phone or radio to request permission to enter the safety zone.

    IV. Discussion of Comments, Changes, and the Rule

    In response to the NPRM, the Coast Guard received 67 public comments. In addition to both the NPRM and the public meeting held in Hilo, HI, on May 8, 2017, we published a SNPRM to further address economic impacts on small entities potentially affected by the safety zone. The Coast Guard received two public comments on the SNPRM, neither of which were germane to the rulemaking. All public comments and the public meeting summary are available in the docket for this rulemaking where indicated under ADDRESSES.

    Based on all the comments received, the Coast Guard adopts the rule as proposed in the NPRM and supplemented in the SNPRM as 33 CFR 165.1414 without major change. After review of the SNPRM proposed language, we made a minor edit to paragraph (c) to clarify that this is no longer proposed language. In paragraph (c)(2), we also further clarify that entry into or remaining in this safety zone, when enforced, is prohibited unless authorized by the COTP Honolulu or his designated representative. This clarification is necessary to highlight that when lava is not a threat to mariners, the safety zone is not enforced. Finally, in paragraph (c)(3), we added further clarification that notice for entry into the safety zone is necessary only when the safety zone is enforced.

    We received nine comments on the NPRM in support of the proposed rule. One commenter noted that he had taken a lava boat tour and felt that the vessel got too close to the entry point and that he experienced adverse health symptoms from being in the lava plume. Several commenters agreed that the safety zone should be consistent with that of the landside restriction of 300 meters. Other commenters supported the safety zone due to the hazards resulting from the entry of volcanic lava into the ocean.

    The Coast Guard received 18 comments regarding the safety zone's size and location. These comments ranged from being in favor of the 300-meter safety zone to being opposed. Nine opposing views stated that 300 meters is excessively restrictive. One comment from the National Oceanic Atmospheric Administration stated that the Coast Guard should “provide definitive bounding coordinates for the safety zone, instead of a general statement that the safety zone will encompass all waters extending 300 meters in all directions around the entry point of lava flow into the ocean associated with the lava flow at the Kamokuna lava delta or Kilauea crater.”

    We believe that because of the unpredictable and varying nature of the active lava flowing into the ocean at this area, the Coast Guard cannot issue specific geographic coordinates of the safety zone in the final rule, but will note the current entry site and update for future sites. We note, with the concurrence of NOAA's Nautical Data Branch, Marine Chart Division, the position 19°19′08″ N, 155°02′36″ W. These are the coordinates provided for Kamokuna Beach in the U.S. Geological Survey's Geographic Names Information System. Future lava entry locations may vary from the Kamokuna Beach location.

    Additionally, because of the varying dangers of the lava entry and fragile bench shelf development, the Coast Guard cannot provide a specific distance at which a vessel can safely operate. However, the COTP Honolulu has permitted vessels to operate within the 300-meter safety zone under certain conditions when the safety zone is actively enforced.

    The Coast Guard received one comment from Hawaii Volcanoes National Park supporting a safety zone “that is flexible to account for whatever location the lava may occur since it is not a static event in time or space,” and a recommendation “that the proposed rule apply not just to the Kamokuna ocean-entry point, but any location in the future where lava enters the ocean.”

    We agree, and the final rule includes language stating that all locations associated with the Kilauea lava flow entering the Pacific Ocean on the eastern side of the Island of Hawaii, HI, are included under the safety zone.

    Sixteen commenters recommended that the Coast Guard reduce the 300-meter radius of the safety zone.

    We believe that based on Sector Honolulu's review of the historical observations of delta collapses and ejecta distances from HVO records, a radius of 300 meters remains a safe and reasonable distance for a high-hazard zone for the general boating public. The HVO reports that explosions from delta collapses “have hurled hot rocks nearly a meter (yard) in size as far as about 250 m (273 yards) inland from the collapsed delta and scattered rock debris onshore over an area the size of several football fields. These explosions also hurl rocks seaward, probably to similar distances.” 1

    1https://volcanoes.usgs.gov/observatories/hvo/hawaii_ocean_entry.html.

    The 300-meter safety zone also mirrors land and air restrictions for lava flow viewing. Furthermore, HVO staff reiterated the need for a 300-meter safety zone at the public meeting held on this rulemaking. Accordingly, the Coast Guard will maintain the safety zone's 300-meter radius, with the option of allowing operators to request authorization to enter the safety zone from the COTP Honolulu.

    The Coast Guard received 30 comments in favor of allowing the lava tour-boat owners and operators to enter and operate in the safety zone.

    Under this final rule, any vessel owner or operator may submit a written request to the COTP Honolulu, or his designated representative, for authorization to enter the safety zone. Such written requests must explain how the vessel will operate safely in proximity to lava. A typical request should note the vessel's condition, the operator's familiarity with the surrounding waters, and any specific safety practices for operating near the lava ocean-entry points. Once initial authorization is received, a vessel owner or operator only needs to contact COTP Honolulu by phone or radio to request permission to enter the safety zone. Prior to the NPRM, the Coast Guard promulgated a TFR for a 300-meter safety zone at the Kamokuna lava delta. Pursuant to the TFR, the COTP Honolulu granted four lava tour-boat owners and operators and one photographer access to operate within the safety zone. If lava begins to flow into the ocean again, these tour operators will be granted renewed permission to enter the safety zone. The Coast Guard received three comments regarding access or exclusive access to the lava flow by Hawaiian natives. This rule is concerned with the safety aspect of access to the lava flow area. Mandating exclusive access to the lava flow is outside the scope of this rulemaking and is outside the Coast Guard's authority. When the safety zone is enforced, this rule provides guidance for requesting permission to enter the safety zone from the COTP Honolulu or his designated representative.

    The Coast Guard received one comment regarding the lack of reliable VHF radio communications near the lava flow area, thereby preventing lava tour-boat owners and operators from hailing the Coast Guard via VHF radio.

    We are aware of the VHF radio limitations in this area, and are currently researching how to improve radio coverage. The COTP Honolulu and Coast Guard Base Honolulu are attempting to install equipment in the vicinity to enhance communications in this area. In the meantime, vessel owners and operators are encouraged to use alternate means to communicate effectively near the lava flow ocean-entry points. They are also encouraged to contact the Coast Guard in advance of their transits to the lava ocean-entry points and departure in order to facilitate effective communications as well as the timely processing of any written request for authorization to enter the safety zone.

    The Coast Guard received four comments regarding general unsafe conditions at the boat ramp where tour operators launch.

    Boat ramps and associated safe boating concerns are a state management issue. We have forwarded this comment to the appropriate state office.

    One comment proposed the safety zone be stationary and move with the lava shelf, essentially creating a moving safety zone.

    Title 33 CFR 165.20 defines a safety zone as a water area to which, for safety purposes, access is limited to authorized persons or vessels. It further states that a safety zone may be stationary and described by fixed limits. We believe that in this situation, the entry point of the lava changes based on flow, and as such, the safety zone would encompass all waters extending 300 meters (984 feet) in all directions around the entry point of lava flow into the ocean. The Coast Guard does not define this as a moving safety zone around a moving object, but rather as a necessary adjustment to a dynamic environmental occurrence, which may have multiple lava entry points.

    The Coast Guard also received a comment stating that our certification under 5 U.S.C. 605(b), concerning the economic impact on small entities, was potentially arbitrary as it lacked any factual basis for the certification. An initial regulatory flexibility analysis in accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, was conducted through an SNPRM, which allowed for public comment. The Coast Guard received no comments on the initial regulatory flexibility analysis (IRFA).

    The Coast Guard received two comments regarding Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, which directs a reduction of the promulgation of new regulations. As discussed in the following section, this rule is exempt from this Executive order.

    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 discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

    The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled 'Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017).

    We only received one public comment on the SNPRM and it was beyond the scope of this regulation. Therefore, we adopt the preliminary regulatory analysis for the proposed rule as final. A summary of that analysis follows.

    This regulatory analysis provides an evaluation of the economic impacts associated with this final rule. The Coast Guard is issuing a final rule to ensure the safety of mariners, lava tour-boat passengers, and the protection of property by establishing a 300-meter safety zone from every direction and all points where lava enters the ocean. In order to mitigate the potential costs of this rule, the Coast Guard has and will continue to issue exemptions to mariners that can demonstrate a level of safety sufficient for the additional hazards present where lava enters the ocean.

    In November 2017, lava ceased flowing from Kilauea volcano into the Pacific Ocean. Consequently, the Coast Guard has temporarily stopped enforcing the safety zone. In the final rule, we added regulatory text clarifying that the regulation is only enforced when lava is actively flowing into the ocean. This change will not impose any economic costs on any mariners or members of the public because it does not create any requirements. Other than changes clarifying that the safety zone is enforced as long as lava flows into the ocean, we made no further changes to the regulatory text.

    Table 1 provides a summary of the affected population, costs, and benefits of this rule.

    Table 1—Summary of Impacts of the Final Rule Category Summary Affected population 4 tour boat operators. Costs to industry 593.88. Costs to government 378.00. Total costs 971.88. Unquantified benefits Protection from unsafe operations where vessels enter the safety zone. Affected Population

    This final rule makes permanent the existing TFR safety zone for the navigable waters surrounding the entry of lava from Kilauea volcano into the Pacific Ocean. The TFR restricted access to those vessels that contacted the COTP Honolulu and requested permission to enter the temporary safety zone.

    Therefore, this rule affects any vessel that would normally travel within 300 meters of points where lava reaches the ocean. Due to the hazards and relative remoteness of the area, the Coast Guard is not aware of any vessel operations within 300 meters of where lava enters the ocean other than those conducted by lava tour-boat owners and operators. While the TFR was still in effect, the COTP Honolulu granted four lava tour-boat owners and operators and one photographer authorization to enter the safety zone under certain conditions. When lava reenters the safety zone, these four tour operators will constitute the affected population because the Coast Guard does not believe other entities are likely to operate near the safety zone.

    Costs

    Under the TFR, published concurrently with the NPRM on April 3, 2017, vessel owners and operators were required to prepare and submit a written request to the COTP Honolulu to enter the safety zone. Because the requirements of this final rule are consistent with the requirements in the TFR, we are presenting the costs associated with the TFR in this final rule. Tour operators that previously applied will be grandfathered in and permitted to operate in the safety zone when the lava flow returns in the future. Additional operators that wish to enter the safety zone will need to submit written requests to the COTP Honolulu. The Coast Guard is not aware of any additional individuals that are likely to request access to enter the safety zone in the future.

    The written request requirement was contained in the previous TFR and each lava tour-boat owner and operator seeking authorization to enter the safety zone complied. Based on discussions with COTP Honolulu personnel, we estimated it takes about four hours for a vessel owner or operator to submit a written request to enter the safety zone. This includes the time it would take lava tour-boat owners and operators to respond to questions from the COTP concerning the written request. Lava tour-boat owners and operators would only be required to make a written request once rather than for each voyage. The Coast Guard is not aware that any voyages were terminated due to a lack of authorization to enter the safety zone during the period operators requested to enter.

    We obtained the mean hourly wage rate for a captain of a lava tour-boat from the May 2016 Bureau of Labor Statistics (BLS) Occupational Employment Statistics National Occupational Employment and Wage Estimates. Based on BLS data, the mean hourly wage rate for captains, mates, and pilots of water vessels with the North American Industry Classification System (NAICS) occupational code of 53-5021 in the “Scenic and Sightseeing Transportation, Water” industry is $24.42.2 Because this is an unloaded hourly wage rate, we added a load factor of 1.52 derived from the May 2016 BLS “Employer Cost for Compensation” database to obtain a loaded hourly wage rate of $37.12.3 Using this information, we estimated the one-time initial cost for an owner or operator to prepare a written request and respond to comments from the Coast Guard to be $148.47.4 Therefore, we estimated the total cost of the proposed rule on tour operators to be $593.88.5

    2 Captains, mates, and pilots may work in numerous industries. We use the BLS industry-specific mean hourly wage rate for the affected tour boat operators from the “Scenic and Sightseeing Transportation, Water” industry. See http://www.bls.gov/oes/2016/may/oes535021.htm.

    3 A loaded wage rate is what a company pays per hour to employ a person, not an hourly wage. The loaded wage rate includes the cost of benefits (health insurance, vacation, etc.). The load factor for wages is calculated by dividing total compensation by wages and salaries. For this analysis, we used BLS Employer cost of employee compensation/Transportation and Materials Moving Occupations, Private Industry Report (Series IDs, CMU2010000520000D and CMU2020000520000D) for all workers using the multi-screen data search. Using 2016 Q4 data for the cost of compensation per hour worked, we divided the total compensation amount of $28.15 by the wage and salary amount of $18.53 to obtain the load factor of 1.52, rounded. See the following websites: https://beta.bls.gov/dataQuery/find?fq=survey:[oe]&s=popularity:D and https://data.bls.gov/cgi-bin/dsrv?cm. Multiplying 1.52 by $24.42, we obtained a loaded hourly wage rate of $37.12, rounded.

    4 $37.12 × 4 hours.

    5 $148.47 × 4 tour operators.

    Since all four lava tour-boat owners and operators were each granted permission to enter the safety zone through an initial written request, the only cost to these lava tour-boat owners and operators was the cost of the initial request. Each owner or operator would also be required to notify the COTP Honolulu by phone during the normal course of their duties before entering the safety zone. We did not estimate a cost for the call because the equipment already exists onboard each vessel and the time cost is minimal. The total costs to industry are therefore $593.88.

    Government costs to implement this rule include the one-time cost of reviewing the written requests. We did not estimate a cost for the time to receive a call from an owner or operator when entering the safety zone because the COTP Honolulu conducts this review in the normal course of duties and the time requirements are minimal. To process the written requests, we estimated one non-commissioned officer with a rank of E-7, and three officers with ranks of O-4, O-5, and O-6 would take about one hour each to review the written request. Based on the labor rates listed in Table 2,6 we estimated the total cost of the rule to the Federal government to be $378.00.

    6 We obtained the hourly wage rates for government personnel from Enclosure (2) of Commandant Instruction 7310.1R (29 March 2017) using the “In Government Rate.”

    Table 2—Total Government Costs of the Temporary Final Rule Rank Wage rate Labor hours Total cost E-7 $65 1 $65 O-4 92 1 92 O-5 104 1 104 O-6 117 1 117 Total 4 378

    We estimated the total cost of this rule to lava tour-boat owners and operators and to the Federal government to be $971.88.7

    7 $593.88 in costs to industry + $378 in costs to the Coast Guard.

    Benefits

    Lava flow that enters the ocean is potentially hazardous and presents a danger to vessels navigating within close proximity of where the flow enters the ocean, particularly when lava deltas collapse. These hazards include, but are not limited to, plumes of hot, corrosive seawater laden with hydrochloric acid and fine volcanic particles that can irritate the skin, eyes, and lungs; explosions of debris and eruptions of scalding water from hot rock entering the ocean; sudden lava delta collapses; and waves associated with these explosions and collapses. The primary benefit of this rule is to promote safe navigation, and preserve the safety of life and property by ensuring that vessel operators are prepared for the greater risks present where lava enters the ocean. If vessel operators wish to transit through the safety zone they will be required to first contact the COTP Honolulu for permission with an explanation of how their safety and lifesaving equipment is adequate to meet the greater risks present.

    B. Impact on Small Entities

    The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 94 Stat. 1164 (codified at 5 U.S.C. 601-612)) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” 8

    8See RFA section 2(b), 94 Stat. 1164, 1165.

    When an agency promulgates a final rule under section 553 of the Administrative Procedure Act Administrative Procedure Act, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency must prepare a FRFA or have the head of the agency certify pursuant to RFA section 605(b) that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The RA prescribes the content of the FRFA, which we discuss below.

    In accordance with the RFA, the Coast Guard prepared this FRFA that examines the impacts of the final rule on small entities. A small entity may be:

    • A small independent business, defined as independently owned and operated, is organized for profit, and is not dominant in its field per the Small Business Act (15 U.S.C. 632);

    • A small not-for-profit organization (any not-for-profit enterprise which is independently owned and operated and is not dominant in its field); or

    • A small governmental jurisdiction (locality with fewer than 50,000 people).

    This FRFA addresses the following:

    (1) A statement of the need for, and objectives of, the rule;

    (2) A statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

    (3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the SBA in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

    (4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;

    (5) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

    (6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    Below is a discussion of FRFA analysis by each of these six elements:

    (1) A statement of the need for, and objectives of, the rule.

    Lava entered the ocean at Kamokuna on Kilauea volcano's south coast between July of 2016 and November of 2017. Lava will continue to enter the ocean again in the foreseeable future. When lava enters the ocean, potential hazards emerge such as: Plumes of corrosive seawater can irritate the skin, eyes, and lungs; explosions of debris and scalding water can injure passengers; collapses of lava deltas can cause large waves potentially capsizing vessels. Unless vessels have the proper equipment and their operators take sufficient precautions, passengers and operators face significant hazards to their lives as well as property. This rule is necessary to promote navigational safety, provide for the safety of life and property, and facilitate and accommodate the reasonable demands of commerce related to tourism surrounding the lava ocean-entry points.

    This safety zone will ensure the safety of mariners, lava tour-boat passengers, and the protection of property by establishing a 300-meter safety zone from every direction and all points where lava enters the ocean.

    (2) A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments.

    We only received one public comment which was beyond the scope of the rule; therefore, we made no changes to the proposed rule as a result of public comments.

    (3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the SBA in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments.

    We received no comments the Chief Counsel for Advocacy of the SBA.

    (4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available.

    This rule affects any vessel that would normally travel within 300 meters of points where lava reaches the ocean. Due to the hazards and relative remoteness of such an area, the Coast Guard believes only lava tour operators would regularly operate within 300 meters of a point where lava enters the ocean. Based on the Coast Guard's understanding, there are four known lava tour-boat operators and one photographer who regularly come within 300 meters of the Kilauea lava flow.

    Of the four lava tour-boat owners and operators who would transit within the safety zone, we could not find publically available information such as annual revenues and number of employees for three of the four operators. We assumed these three operators qualified as small entities. We found revenue information on the fourth lava tour-boat owner. Using Manta, a publicly available database for businesses in the United States, we found this lava tour-boat owner to have annual revenues of $220,000 and a NAICS code of 561520, “Tour Operators.” 9 This NAICS code has a size threshold of $20.5 million for annual revenues, based on the Small Business Administration's table of size standards.10 Based on this information, this lava tour-boat operator also qualified as a small entity.

    9 Accessed July 17, 2017 from https://www.manta.com/c/mb05066/kalapana-cultural-tours-inc.

    10https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

    Based on discussions with COTP Honolulu personnel and using the wage rates and labor hour estimates as established above, we estimated it would take about four hours for an owner or operator of a lava tour-boat to prepare a written request to enter the safety zone. This includes the time it would take lava tour-boat owners or operators to respond to questions from the COTP concerning the written request. Lava tour-boat owners and operators would be only required to make this request once rather than for every voyage.

    Above we obtained a loaded hourly wage rate of $37.12 for captains, mates, and pilots of water vessels. We estimated the one-time initial cost for an owner or operator to prepare a written request and respond to comments from the Coast Guard to be about $148.47. We estimated the total cost of the rule on tour operators to be about $593.88.

    As mentioned above, we only found revenue data on one of the four operators. Therefore, we estimate the initial revenue impact of this rule on this lava tour-boat owner to be about $148.47, which is 0.07% of the company's revenue. There are no annual revenue impacts because the written request needs to be made once, after which each lava tour-boat operator would notify the COTP Honolulu by phone to obtain permission to enter the safety on a given day.

    (5) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.

    This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

    (6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    The Coast Guard considered the alternative of not establishing a safety zone. However, without a safety zone, vessel owners and operators would be unprepared for the greater hazards that are present near the Kilauea lava flow ocean-entry point. These vessel owners and operators and passengers could suffer grave injury or in the extreme case death, in addition to damage to or loss of property, if adequate protection is not provided. Therefore, the Coast Guard decided a safety zone was necessary to promote navigational safety, provide for the safety of life and property, and to accommodate and facilitate the reasonable demands of commerce relating to tourism surrounding the lava entry points. No cost to industry or government would be associated with this alternative; nevertheless, we rejected this alternative because it would not ensure that the boating public would operate within a safe distance of where the lava flow enters the ocean.

    Alternatively, the Coast Guard could have instituted a safety zone without permitting any entry into the safety zone. This alternative would have imposed substantial cost onto the four small entity tour operators. As a result, the Coast Guard did not select this alternative.

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone that would prohibit persons and vessels from entry into the 300-meter (984 feet) safety zone extending in all directions around the entry of lava flow into the Pacific Ocean. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1, of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a specified environmental impact from this rule.

    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 § 165.1414 to read as follows:
    § 165.1414 Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI.

    (a) Location. The safety zone area is located within the Captain of the Port (COTP) Honolulu Zone (See 33 CFR 3.70-10) and encompasses all primary areas from the surface of the water to the ocean floor at the Kilauea active lava flow entry into the Pacific Ocean on the southeast side of the Island of Hawaii, HI. The entry point of the lava may change based on flow. The safety zone encompasses all waters extending 300 meters (984 feet) in all directions around entry points of lava flow into the ocean associated with the Kilauea active lava flow.

    (b) Definitions. As used in this section, designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the COTP Honolulu to assist in enforcing the safety zone described in paragraph (a) of this section.

    (c) Regulations. The general regulations governing safety zones contained in § 165.23 apply to this safety zone.

    (1) All persons and vessels are required to comply with the general regulations governing safety zones found in this part.

    (2) Entry into or remaining in this safety zone when enforced is prohibited unless authorized by the COTP Honolulu, or his designated representative.

    (3) Persons or vessels desiring to enter the safety zone identified in paragraph (a) of this section should submit a written request to the COTP Honolulu before initial entry into the safety zone when the Coast Guard notifies the public of safety zone enforcement. The request must explain how the vessel will operate safely in proximity to lava. A typical request should note the vessel's condition, the operator's familiarity with the surrounding waters, and any specific safety practices for operating near the lava ocean-entry points. Persons authorized initial entry may, thereafter, contact the COTP Honolulu through his designated representatives at the Command Center via telephone: 808-842-2600 and 808-842-2601; fax: 808-842-2642; or on VHF channel 16 (156.8 Mhz) to request permission to transit the safety zone.

    (4) If permission is granted, all persons and vessels must comply with the instructions of the COTP Honolulu, or his designated representative, and proceed at the minimum speed necessary to maintain a safe course while transiting through or in the safety zone as well as maintain a safe distance from the lava hazards.

    (5) The COTP Honolulu will provide notice of enforcement of the safety zone described in this section by verbal radio broadcasts and written notice to mariners. The Coast Guard vessels enforcing this section can be contacted on marine band radio VHF-FM channel 16 (156.8 MHZ). The COTP Honolulu and his or her designated representatives can be contacted at telephone number listed in paragraph (c)(3) of this section.

    (6) The Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.

    Dated: May 7, 2018. M.C. Long, Captain, U.S. Coast Guard, Captain of the Port Honolulu.
    [FR Doc. 2018-10049 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0387] RIN 1625-AA00 Safety Zone; Barge PFE-LB444, San Joaquin River, Blackslough Landing, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for navigable waters of the San Joaquin River due to an unstable, partially submerged barge with hull number PFE-LB444. The temporary safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the barge and associated recovery efforts. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port San Francisco.

    DATES:

    This rule is effective without actual notice from May 11, 2018 until May 31, 2018. For the purposes of enforcement, actual notice will be used from May 7, 2018 until May 11, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0387 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Junior Grade Emily K. Rowan, U.S. Coast Guard Sector San Francisco; telephone 415-399-7443, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because of the emergent nature of the situation. Notice and comment procedures would be impracticable because immediate action is needed protect personnel, vessels, and the marine environment from potential hazards associated with the barge and associated recovery efforts.

    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. For the reasons stated above, delaying the effective date of the rule would be impracticable.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones. The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the barge and associated recovery efforts will be a safety concern for anyone within a 90-yard radius of the barge. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from May 7, 2018 through May 31, 2018. The safety zone will cover all navigable waters within 90 yards of the unstable barge and associated recovery efforts centered in approximate position 37° 59′ 41.88″ N, 121° 25′ 8.88″ W (NAD 83). The effect of the temporary safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters from potential hazards associated with the barge and associated recovery efforts. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 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.

    This rule may affect the following entities, some of which may be small entities: owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) this rule will encompass only a small portion of the waterway for a limited period of time, and (ii) the maritime public will be advised in advance of these safety zones via Broadcast Notice to Mariners.

    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, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones of limited size and duration. It is categorically excluded from further review under Categorical Exclusion 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 will be prepared and submitted after issuance or publication in accordance with DHS Instruction Manual 023-01-001-01, Rev. 01.

    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.T11-924 to read as follows:
    § 165.T11-924 Safety Zone; Barge PFE-LB444, San Joaquin River, Blackslough Landing, CA.

    (a) Location. The following area is a safety zone: all navigable waters within 90 yards of the unstable, partially submerged barge and associated recovery efforts centered in approximate position 37° 59′ 41.88″ N, 121° 25′ 8.88″ W (NAD 83).

    (b) Enforcement period. The zone described in paragraph (a) of this section will be enforced from May 7, 2018 through May 31, 2018. The Captain of the Port San Francisco (COTP) will notify the maritime community of periods during which these zones will be enforced via Broadcast Notice to Mariners in accordance with § 165.7.

    (c) Definitions. As used in this section, “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer on a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the safety zone.

    (d) Regulations. (1) Under the general regulations in subpart C of this part, entry into, transiting or anchoring within this safety zone is prohibited unless authorized by the COTP or the COTP's designated representative.

    (2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.

    (3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zones on VHF-23A or through the 24-hour Command Center at telephone (415) 399-3547.

    Dated: May 7, 2018. Anthony J. Ceraolo, Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
    [FR Doc. 2018-10044 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-0361] Safety Zone; Brandon Road Lock and Dam to Lake Michigan Including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce a segment of the Safety Zone: Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel on all waters of the Main Branch of the Chicago River between the Wells Street Bridge and the Wabash Street Bridge. This action is necessary to protect mariners from the hazards associated with the hazards of a bridge based fireworks display.

    DATES:

    The regulations in 33 CFR 165.930 will be enforced from 7:45 p.m. to 8:40 p.m. on May 18, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email LT John Ramos, Waterways Management Division, Marine Safety Unit Chicago, telephone 630-986-2155, email address [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce a segment of the Safety Zone: Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone on all waters of the Main Branch of the Chicago River between the Wells Street Bridge, mile marker 325.8 and the Wabash Avenue Bridge, mile marker 326.2. Enforcement will occur from 7:45 p.m. to 8:40 p.m. on May 18, 2018. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Lake Michigan or a designated representative. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

    This notice of enforcement is issued under the authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Captain of the Port Lake Michigan will also provide notice through other means, which will include Broadcast Notice to Mariners and Local Notice to Mariners. Additionally, the Captain of the Port Lake Michigan may notify representatives from the maritime industry through telephonic notifications, email notifications, or by direct communication from on scene patrol commanders. If the Captain of the Port or a designated representative determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area. The Captain of the Port Lake Michigan or a designated on-scene representative may be contacted via Channel 16, VHF-FM or at (414) 747-7182.

    Dated: April 20, 2018. Thomas J. Stuhlreyer, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.
    [FR Doc. 2018-10102 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-0337] Recurring Safety Zone; Corpus Christi Hooks Baseball Team/Friday Night Fireworks AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce safety zones for the Corpus Christi Hooks Baseball Team/Friday Night Fireworks on odd week Fridays from May 11, 2018 through August 24, 2018, to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Eighth Coast Guard District identifies the regulated area for this event in Corpus Christi, TX. During the enforcement periods, entry into these zones is prohibited unless authorized by the Captain of the Port Sector Corpus Christi (COTP) or a designated representative.

    DATES:

    The regulations in 33 CFR 165.801, Table 4, Line 13 will be enforced from 8 p.m. through 11:59 p.m., each day on May 11, May 25, June 8, June 22, July 6, July 20, August 10, and August 24, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email Petty Officer Kevin Kyles, Waterways Management Division, U.S. Coast Guard; telephone 361-939-5125, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce safety zones in 33 CFR 165.801, Table 4, Line 13, for the Corpus Christi Hooks Baseball Team/Friday Night Fireworks regulated area from 8 p.m. through 11:59 p.m. on May 11, May 25, June 8, June 22, July 6, July 20, August 10, and August 24, 2018. This action is being taken to provide for the safety of life on navigable waterways during this recurring event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the regulated area for the Corpus Christi Hooks Baseball Team/Friday Night Fireworks, which encompasses portions of the Corpus Christi Ship Channel. As reflected in §§ 165.23 and 165.801(a), entry into this zone is prohibited unless authorized by the Captain of the Port Sector Corpus Christi (COTP) or a designated representative. Persons or vessels desiring to enter the zones must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16 or by telephone at (361) 939-0450. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. Designated representatives include commissioned, warrant, and petty officers of the U.S. Coast Guard.

    In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNM), Marine Safety Information Broadcasts (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

    Dated: April 27, 2018. R.A. Hahn, Captain, U.S. Coast Guard, Captain of the Port Sector Corpus Christi.
    [FR Doc. 2018-10043 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0290] RIN 1625-AA00 Safety Zone; Cocos Lagoon, Merizo, GU AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a safety zone for navigable waters within Cocos Lagoon. This safety zone will encompass the designated swim course for the Cocos Crossing swim event in the waters of Cocos Lagoon, Merizo, Guam. This safety zone is necessary to protect all persons and vessels participating in this marine event from potential safety hazards associated with vessel traffic in the area. Race participants, chase boats, and organizers of the event will be exempt from the safety zone. Entry of persons or vessels into the safety zone is prohibited unless authorized by the Captain of the Port Guam (COTP).

    DATES:

    This rule is effective from 7 a.m. to 1 p.m. on May 27, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0290 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 Chief Petty Officer Todd Wheeler, Sector Guam, U.S. Coast Guard; telephone (671) 355-4866, Email [email protected].

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to public interest. The specific date and time for the event was not set with sufficient time to publish and request public comment on the establishment of a safety zone. Thus, delaying the effective date of this rule to allow for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants from hazards from vessel traffic.

    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. Due to the date of notification for the event and potential danger to the swim participants, delaying the effective period of this safety zone would be contrary to public interest.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with vessel traffic in the area of the Cocos Crossing swim event on May 27, 2018 will be a safety concern for participants and that all vessels are to keep a 100-yard radius from event participants and support vessels. The purpose of this rule is to ensure the safety of the participants and the navigable waters in the safety zone before, during, and after the scheduled event.

    IV. Discussion of the Rule

    This rule establishes a safety zone for Cocos Crossing swim event in the waters of Cocos Lagoon, Merizo, Guam. This event is scheduled to take place from 7 a.m. to 1 p.m. on May 27, 2018. This safety zone is necessary to protect all persons and vessels participating in this marine event from potential safety hazards associated with vessel traffic in the area. Race participants, chase boats and organizers of the event will be exempt from the safety zone. Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safety transit around this safety zone which will impact a small designated area of the Cocos Lagoon for 6 hours. 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 (Public Law 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 puts in place a safety zone lasting for 6 hours that will prohibit entry within 100-yards of swim participants. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T14-0290 to read as follows:
    § 165.T14-0290 Safety Zone; Cocos Lagoon, Merizo, GU.

    (a) Location. The following area, within the Guam Captain of the Port (COTP) Zone (See 33 CFR 3.70-15) is a safety zone: All navigable waters within a 100-yard radius of race participants in Merizo and Cocos Lagoon. Race participants, chase boats and organizers of the event will be exempt from the safety zone.

    (b) Effective dates. This rule is effective from 7 a.m. through 1 p.m. on May 27, 2018.

    (c) Enforcement. Any Coast Guard commissioned, warrant, or petty officer, and any other COTP representative permitted by law, may enforce this temporary safety zone.

    (d) Waiver. The COTP may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security.

    (e) Penalties. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: April 20, 2018. Christopher M. Chase, Captain, U.S. Coast Guard, Captain of the Port, Guam.
    [FR Doc. 2018-10101 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0065] RIN 1625-AA00 Safety Zones; Coast Guard Sector Ohio Valley Annual and Recurring Safety Zones Update AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is amending and updating its safety zones regulations for annual events that take place in the Coast Guard Sector Ohio Valley area. This action is necessary to update the current list of recurring safety zones with revisions, additional events, and removal of events that no longer take place in Sector Ohio Valley. This regulation restricts vessel traffic from the safety zones during the events unless authorized by the Captain of the Port Sector Ohio Valley or a designated representative.

    DATES:

    This rule is effective May 11, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0065 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 NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background Information and Regulatory History

    The Captain of the Port Sector Ohio Valley (COTP) is amending 33 CFR 165.801 to update the table of annual fireworks displays and other marine-related events in Coast Guard Sector Ohio Valley. These events include air shows, fireworks displays, and other marine related events requiring a limited access area restricting vessel traffic for safety purposes.

    On April 3, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zones; Coast Guard Sector Ohio Valley Annual and Recurring Safety Zones Update (83 FR 14226). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to those recurring safety zones. During the comment period that ended on April 18, 2018, we received eight comments.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it 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 necessary to respond to the potential safety hazards associated with these marine events.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. Based on the nature of these marine events, large numbers of participants and spectators, and event locations, the COTP has determined that the events listed in this rule could pose a risk to participants or waterways users if the normal vessel traffic were to interfere with the events. Possible hazards include risks of injury or death from near or actual contact among participant vessels and spectators or mariners traversing through the regulated area. This purpose of this rule is to ensure the safety of all waterway users, including event participants and spectators, during the scheduled events.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received eight comments on our NPRM published on April 3, 2018. Of the eight comments we received, one was unrelated to this rulemaking and another was a duplicate. Of the six substantive comments, one commenter was in favor of the rule, two were against the rule, and the other three expressed confusion as to the times, locations, effects, alternative routes, and the purpose of the safety zones.

    Of the two commenters not in favor of this rule, one stated disagreement with regulatory action generally and one stated that local authorities should oversee inland waterways. These comments are outside of the scope of this final rule.

    Two commenters expressed confusion over the events' times and locations. This rule contains two tables. The first table adds 23 new safety zones. The second table amends 31 existing safety zones. Each table contains dates and locations for each event. The Coast Guard will issue a notice of enforcement for each event, which will contain specific times of enforcement of each safety zone. In addition, the Captain of the Port or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the particular safety zone as well as any changes in the planned schedule. Another commenter expressed confusion over the safety zones' effects and alternative routes. The effects on environment, Indian tribes, and small entities are discussed in the preamble of the rule. In addition, the Coast Guard sought public input as to the same as well as the effects on the protest activities. As to the alternative routes, the rule, § 165.801(d), allows persons and vessels desiring to enter into or passage through the zone to request permission to do so from the Captain of the Port or a designated representative. Finally, one other commenter expressed confusion as to the purpose of the rule and suggested that we include that it is to ensure the safety of event locations and event participants. The Coast Guard is vested with jurisdiction over the navigable waters of the United States and any land structures or shore areas immediately adjacent to such waters. It does not have the authority over land areas not immediately adjacent to the navigable waters on which the events will occur. As such, we cannot make the requested change. As to the protection of the event participants, the rule does state that the safety zones are necessary for the protection of the event participants. However, the sentence stating the purpose of the rule inadvertently omitted that its purpose is to also ensure the safety of the event participants. We have amended the sentence to reflect the purpose.

    There are no changes in the regulatory text of this rule from the proposed rule on the NPRM.

    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 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated as a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, and duration of the safety zones. These safety zones are limited in size and duration, and are usually positioned away from high vessel traffic areas. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones, and the rule would allow vessels to seek permission to enter the zones.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.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. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. In § 165.801, revise Table 1 to read as follows:
    § 165.801 Annual fireworks displays and other events in the Eighth Coast Guard District recurring safety zones. Table 1 of § 165.801—Sector Ohio Valley Annual and Recurring Safety Zones Date Sponsor/name Sector Ohio Valley location Safety zone 1. Multiple days—April through November Pittsburgh Pirates/Pittsburgh Pirates Fireworks Pittsburgh, PA Allegheny River, Mile 0.2-0.9 (Pennsylvania). 2. Multiple days—April through November Cincinnati Reds/Cincinnati Reds Season Fireworks Cincinnati, OH Ohio River, Mile 470.1-470.4; extending 500 ft. from the State of Ohio shoreline (Ohio). 3. 2 days—Third Friday and Saturday in April Thunder Over Louisville/Thunder Over Louisville Louisville, KY Ohio River, Mile 601.0-607.0 (Kentucky). 4. Last Sunday in May Friends of Ironton Ironton, OH Ohio River, Mile 326.7-327.7 (Ohio). 5. 1 day—A Saturday in July Paducah Parks and Recreation Department/Cross River Swim Paducah, KY Ohio River, Mile 934.0-936.0 (Kentucky). 6. 1 day—First or second weekend in June Bellaire All-American Days Bellaire, OH Ohio River, Mile 93.5-94.5 (Ohio). 7. 2 days—Second weekend of June Rice's Landing Riverfest Rices Landing, PA Monongahela River, Mile 68.0-68.8 (Pennsylvania). 8. 1 day—One weekend in June West Virginia Symphony Orchestra/Symphony Sunday Charleston, WV Kanawha River, Mile 59.5-60.5 (West Virginia). 9. 1 day—Saturday before 4th of July Riverfest/Riverfest Inc. Nitro, WV Kanawha River, Mile 43.1-44.2 (West Virginia). 10. 1 day—First week or weekend in July Greenup City Greenup, KY Ohio River, Mile 335.2-336.2 (Kentucky). 11.1 day— First week or weekend in July Middleport Community Association Middleport, OH Ohio River, Mile 251.5-252.5 (Ohio). 12. 1 day—First week or weekend in July People for the Point Party in the Park South Point, OH Ohio River, Mile 317-318 (Ohio). 13. 1 day—Last weekend in June or first weekend in July Riverview Park Independence Festival Louisville, KY Ohio River, Mile 617.5-620.5 (Kentucky). 14. 1 day—Third or fourth week in July Upper Ohio Valley Italian Heritage Festival/Upper Ohio Valley Italian Heritage Festival Fireworks Wheeling, WV Ohio River, Mile 90.0-90.5 (West Virginia). 15. 1 day—4th or 5th of July City of Cape Girardeau July 4th Fireworks Show on the River Cape Girardeau, MO Upper Mississippi River, Mile 50.0-52.0. 16. 1 day—Third or fourth of July Harrah's Casino/Metropolis Fireworks Metropolis, IL Ohio River, Mile 942.0-945.0 (Illinois). 17. 1 day—During the first week of July Louisville Bats Baseball Club/Louisville Bats Firework Show Louisville, KY Ohio River, Mile 602.0-605.0 (Kentucky). 18. 1 day—During the first week of July Waterfront Independence Festival/Louisville Orchestra Waterfront 4th Louisville, KY Ohio River, Mile 602.0-605.0 (Kentucky). 19. 1 day—During the first week of July Celebration of the American Spirit Fireworks/All American 4th of July Owensboro, KY Ohio River, Mile 754.0-760.0 (Kentucky). 20. 1 day—During the first week of July Riverfront Independence Festival Fireworks New Albany, IN Ohio River, Mile 606.5-609.6 (Indiana). 21. 1 day—July 4th Shoals Radio Group/Spirit of Freedom Fireworks Florence, AL Tennessee River, Mile 254.5-257.4 (Alabama). 22. 1 day—Saturday before July 4th Town of Cumberland City/Lighting up the Cumberlands Cumberland City, TN Cumberland River, Mile 103.0-105.5 (Tennessee). 23. 1 day—July 4th City of Knoxville/Knoxville Festival on the 4th Knoxville, TN Tennessee River, Mile 646.3-648.7 (Tennessee). 24. 1 day—July 4th Nashville NCVC/Independence Celebration Nashville, TN Cumberland River, Mile 189.7-192.3 (Tennessee). 25. 1 day—Saturday before July 4th, or Saturday after July 4th Grand Harbor Marina/Grand Harbor Marina July 4th Celebration Counce, TN Tennessee-Tombigbee Waterway, Mile 448.5-451.0 (Tennessee). 26. 1 day—One of the first two weekends in July City of Bellevue, KY/Bellevue Beach Park Concert Fireworks Bellevue, KY Ohio River, Mile 468.2-469.2 (Kentucky and Ohio). 27. 2 days—Sunday before Labor Day and Labor Day Cincinnati Bell, WEBN, and Proctor and Gamble/Riverfest Cincinnati, OH Ohio River, Mile 469.2-470.5 (Kentucky and Ohio) and Licking River Mile 0.0-3.0 (Kentucky). 28. 1 day—July 4th Summer Motions Inc./Summer Motion Ashland, KY Ohio River, Mile 322.1-323.1 (Kentucky). 29. 1 day—Last weekend in June or First weekend in July City of Point Pleasant/Point Pleasant Sternwheel Fireworks Point Pleasant, WV Ohio River, Mile 265.2-266.2, Kanawha River Mile 0.0-0.5 (West Virginia). 30. 1 day—First week or weekend in July City of Charleston/City of Charleston Independence Day Celebration Charleston, WV Kanawha River, Mile 58.1-59.1 (West Virginia). 31. 1 day—First week or weekend in July Portsmouth River Days Portsmouth, OH Ohio River, Mile 355.5-356.5 (Ohio). 32. 1 day—Second Saturday in August Guyasuta Days Festival/Borough of Sharpsburg Pittsburgh, PA Allegheny River, Mile 005.5-006.0 (Pennsylvania). 33. 1 day—Second or third week of August Pittsburgh Foundation/Bob O'Connor Cookie Cruise Pittsburgh, PA Ohio River, Mile 0.0-0.5 (Pennsylvania). 34. 1 day—Second full week of August PA FOB Fireworks Display Pittsburgh, PA Allegheny River, Mile 0.8-1.0 (Pennsylvania). 35. 1 day—Third week of August Beaver River Regatta Fireworks Beaver, PA Ohio River, Mile 25.2-25.8 (Pennsylvania). 36. 1 day—December 31 Pittsburgh Cultural Trust/Highmark First Night Pittsburgh Pittsburgh, PA Allegheny River Mile, 0.5-1.0 (Pennsylvania). 37. 1 day—Friday before Thanksgiving Pittsburgh Downtown Partnership/Light Up Night Pittsburgh, PA Allegheny River, Mile 0.0-1.0 (Pennsylvania). 38. Multiple days—April through November Pittsburgh Riverhounds/Riverhounds Fireworks Pittsburgh, PA Monongahela River, Mile 0.22-0.77 (Pennsylvania). 39. 3 days—One of the last three weekends in June Hadi Shrine/Evansville Freedom Festival Air Show Evansville, IN Ohio River, Miles 790.0-796.0 (Indiana). 40. 1 day—Second or third Saturday in June, the last day of the Riverbend Festival Friends of the Festival, Inc./Riverbend Festival Fireworks Chattanooga, TN Tennessee River, Mile 462.7-465.2 (Tennessee). 41. 2 days—Second Friday and Saturday in June City of Newport, KY/Italianfest Newport, KY Ohio River, Miles 468.6-471.0 (Kentucky and Ohio). 42. 1 day—Last weekend in June or first weekend in July City of Aurora/Aurora Firecracker Festival Aurora, IN Ohio River Mile, 496.7; 1400 ft. radius from the Consolidated Grain Dock located along the State of Indiana shoreline at (Indiana and Kentucky). 43. 1 day—second weekend in June City of St. Albans/St. Albans Town Fair St. Albans, WV Kanawha River, Mile 46.3-47.3 (West Virginia). 44. 1 day—Last week of June or first week of July PUSH Beaver County/Beaver County Boom Beaver, PA Ohio River, Mile 25.2-25.6 (Pennsylvania). 45. 1 day—4th of July (Rain date—July 5th) Monongahela Area Chamber of Commerce/Monongahela 4th of July Celebration Monongahela, PA Monongahela River, Mile 032.0-033.0 (Pennsylvania). 46. 1 day—Saturday Third or Fourth full week of July (Rain date—following Sunday) Oakmont Yacht Club/Oakmont Yacht Club Fireworks Oakmont, PA Allegheny River, Mile 12.0-12.5 (Pennsylvania). 47. 1 day—Week of July 4th EQT 4th of July Celebration Pittsburgh, PA Ohio River, Mile 0.0-0.5, Allegheny River, Mile 0.0-0.5, and Monongahela River, Mile 0.0-0.5 (Pennsylvania). 48. 1 day—3rd or 4th of July City of Paducah, KY Paducah, KY Ohio River, Mile 934.0-936.0; Tennessee River, mile 0.0-1.0 (Kentucky). 49. 1 day—3rd or 4th of July City of Hickman, KY Hickman, KY Lower Mississippi River, Mile 921.0-923.0 (Kentucky). 50. 1 day—Last weekend in June or first week in July Evansville Freedom Celebration/4th of July Fireworks Evansville, IN Ohio River, Miles 790.0-796.0 (Indiana). 51. 1 day—One of the first two weekends in July Madison Regatta, Inc./Madison Regatta Madison, IN Ohio River, Miles 554.0-561.0 (Indiana). 52. 1 day—July 4th Cities of Cincinnati, OH and Newport, KY/July 4th Fireworks Newport, KY Ohio River, Miles 469.6-470.2 (Kentucky and Ohio). 53. 2 days—One weekend in July Marietta Riverfront Roar Fireworks Marietta, OH Ohio River, Mile 171.6-172.6 (Ohio). 54. 1 day—First week or weekend in July Gallia County Chamber of Commerce/Gallipolis River Recreation Festival Gallipolis, OH Ohio River, Mile 269.5-270.5 (Ohio). 55. 1 day—First week or weekend in July Kindred Communications/Dawg Dazzle Huntington, WV Ohio River, Mile 307.8-308.8 (West Virginia). 56. Multiple days—September through January University of Pittsburgh Athletic Department/University of Pittsburgh Fireworks Pittsburgh, PA Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1, Allegheny River mile 0.0-0.25 (Pennsylvania). 57. Sunday, Monday, or Thursday from August through February Pittsburgh Steelers Fireworks Pittsburgh, PA Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1. 58. 3 days—Third week in September Wheeling Heritage Port Sternwheel Festival Foundation/Wheeling Heritage Port Sternwheel Festival Wheeling, WV Ohio River, Mile 90.2-90.7 (West Virginia). 59. 1 day—One weekend in September Ohio River Sternwheel Festival Committee fireworks Marietta, OH Ohio River, Mile 171.5-172.5 (Ohio). 60. 1 day—Second weekend of October Leukemia and Lymphoma Society/Light the Night Walk Fireworks Nashville, TN Cumberland River, Mile 189.7-192.1 (Tennessee). 61. 1 day—One weekend in October West Virginia Motor Car Festival Charleston, WV Kanawha River, Mile 58-59 (West Virginia). 62. 1 day—Friday before Thanksgiving Kittanning Light Up Night Firework Display Kittanning, PA Allegheny River, Mile 44.5-45.5 (Pennsylvania). 63. 1 day—First week in October Leukemia & Lymphoma Society/Light the Night Pittsburgh, PA Ohio River, Mile 0.0-0.4 (Pennsylvania). 64. 1 day—Friday before Thanksgiving Duquesne Light/Santa Spectacular Pittsburgh, PA Monongahela River, Mile 0.00-0.22, Allegheny River, Mile 0.00-0.25, and Ohio River, Mile 0.0-0.3 (Pennsylvania). 65. 1 day—During the first two weeks of July City of Maysville Fireworks Maysville, KY Ohio River, Mile 408-409 (Kentucky). 66. 1 day—Saturday before Memorial Day Venture Outdoors/Venture Outdoors Festival Pittsburgh, PA Allegheny River, Mile 0.0-0.25; Monongahela River, Mile 0.0-0.25 (Pennsylvania). 67. 1 day—Third Saturday in July Pittsburgh Irish Rowing Club/St. Brendan's Cup Currach Regatta Pittsburgh, PA Ohio River, Mile 7.0-9.0 (Pennsylvania). 68. 1 day—July 4th Wellsburg 4th of July Committee/Wellsburg 4th of July Freedom Celebration Wellsburg, WV Ohio River, Mile 73.5-74.5 (West Virginia). 69. 1 day—Last week in June or first week of July Newburgh Fireworks Display Newburgh, IN Ohio River, Mile 777.3-778.3 (Indiana). 70. 3 days—Third or Fourth weekend in April Henderson Tri-Fest/Henderson Breakfast Lions Club Henderson, KY Ohio River, Mile 802.5-805.5 (Kentucky). 71. 1 day—Third week of November Gallipolis in Lights Gallipolis, OH Ohio River, Mile 269.2-270 (Ohio). 72. 1 day—One weekend in September Tribute to the River Point Pleasant, WV Ohio River, Mile 264.6-265.6 (West Virginia). 73. 1 day—Labor Day or first week of September Labor Day Fireworks Show Marmet, WV Kanawha River, Mile 67.5-68 (West Virginia). 74. 1 day—One weekend in August Ravenswood River Festival Ravenswood, WV Ohio River, Mile 220-221 (West Virginia). 75. 1 day—First weekend or week in July Queen's Landing Fireworks Greenup, KY Ohio River, Mile 339.3-340.3 (West Virginia). 76. 1 day—First weekend in June Cumberland River Compact/Nashville Splash Bash Nashville, TN Cumberland River, Mile 189.7-192.1 (Tennessee). 77. 1 day—Second weekend in September Nashville Symphony/Concert Fireworks Nashville, TN Cumberland River, Mile 190.1-192.3 (Tennessee). 78. 1 day—Second or third weekend in October Outdoor Chattanooga/Swim the Suck Chattanooga, TN Tennessee River, Mile 452.0-454.5 (Tennessee). 79. 1 day—Friday or Saturday after Thanksgiving Friends of the Festival/Cheer at the Pier Chattanooga, TN Tennessee River, Mile 462.7-465.2 (Tennessee). 80. 1 day—July 3rd Chattanooga Presents/Pops on the River Chattanooga, TN Tennessee River, Mile 462.7-465.2 (Tennessee). 81. 7 days—Scheduled home games University of Tennessee/UT Football Fireworks Knoxville, TN Tennessee River, Mile 645.6-648.3 (Tennessee). 82. 1 day—July 3rd Randy Boyd/Independence Celebration Fireworks Display Knoxville, TN Tennessee River, Mile 625.0-628.0 (Tennessee). 83. 1 day—Second weekend in September City of Clarksville/Clarksville Riverfest Clarksville, TN Cumberland River, Mile 124.5-127.0 (Tennessee). 84. 1 day—Fourth weekend in October Chattajack Chattanooga, TN Tennessee River, Mile 462.7-465.5 (Tennessee). 85. 1 day—First week in May Belterra Park Gaming Fireworks Cincinnati, OH Ohio River, Mile 460.0-462.0 (Ohio). 86. 1 day—First week of July Cincinnati Symphony Orchestra Cincinnati, OH Ohio River, Mile 460.0-462.0 (Ohio). 87. 1 day—First week in August Gliers Goetta Fest LLC Newport, KY Ohio River, Mile 469.0-471.0. 88. 1 day—last 2 weekends in August/first week of September Wheeling Dragon Boat Race Wheeling, WV Ohio River mile 90.4-91.5 (West Virginia). 89. 1 day—week of July 4th Wheeling Symphony fireworks Wheeling, WV Ohio River mile 90-92 (West Virginia). 90. 1 day—week of July 4th Chester Fireworks Chester, WV Ohio River mile 42.0-44.0 (West Virginia). 91. 1 day—First week of August Kittaning Folk Festival Kittanning, PA Allegheny River mile 44.0-46.0 (Pennsylvania). 92. 2 days—One weekend in August Powerboat Nationals-Parkersburg Regatta/Parkersburg Homecoming Festival Parkersburg, WV Ohio River mile 183.5-185.5 (West Virginia). 93. 1 day—One weekend in August Parkersburg Homecoming Festival-Fireworks Parkersburg, WV Ohio River mile 183.5-185.5 (West Virginia).
    Dated: May 7, 2018. M.B. Zamperini, Captain, U. S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2018-10088 Filed 5-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AP60 Expanded Access to Non-VA Care Through the Veterans Choice Program AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) adopts as final, with no change, an interim final rule revising its medical regulations that implement section 101 of the Veterans Access, Choice, and Accountability Act of 2014, as amended, (hereafter referred to as “the Choice Act”), which requires VA to establish a program (hereafter referred to as the “Veterans Choice Program” or the “Program”) to furnish hospital care and medical services through eligible non-VA health care providers to eligible veterans who either cannot be seen within the wait-time goals of the Veterans Health Administration (VHA) or who qualify based on their place of residence or face an unusual or excessive burden in traveling to a VA medical facility. Those revisions contained in the interim final rule, which is now adopted as final, were required by amendments to the Choice Act made by the Construction Authorization and Choice Improvement Act of 2014, and by the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015. VA published an interim final rule on December 1, 2015, implementing those regulatory revisions, and we received seven public comments. This final rule responds to those public comments and does not make any further regulatory revisions.

    DATES:

    Effective date: This rule is effective on May 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Duran, Director, Policy and Planning, Office of Community Care (10D1A1), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (303) 372-4629. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    The Choice Act, Public Law 113-146, was enacted on August 7, 2014. Further amendments to the Choice Act were made by Public Laws 113-175, 113-235, 114-19, 114-41, and 115-26. Under these authorities, VA established the Veterans Choice Program and published regulations at 38 CFR 17.1500 through 17.1540. This final rule revises VA regulations in accordance with the amendments to the Choice Act made by Public Laws 114-19 and 114-41. Public Law 114-19, the Construction Authorization and Choice Improvement Act, amended the Choice Act to define additional criteria that VA may use to determine that a veteran's travel to a VA medical facility is an “unusual or excessive burden.” Public Law 114-41, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, amended the Choice Act to expand eligibility for the Veterans Choice Program to all veterans enrolled in the VA health care system, to remove the 60-day limit on an episode of care, modify the wait-time and 40-mile distance eligibility criteria, and expand provider eligibility based on criteria as determined by VA. VA published an interim final rule on December 1, 2015, to implement these amendments to the Choice Act. 80 FR 74991. We received seven comments on the interim final rule and respond to those comments in the discussion below. We are adopting as final the interim final rule with no revisions.

    Comments regarding changes in Public Law 114-19 related to the “unusual or excessive burden” standard.

    Section 3(a)(2) of Public Law 114-19 amended section 101(b)(2)(D)(ii)(II) of the Choice Act by defining additional criteria that could be the basis for finding that a veteran faced an “unusual or excessive burden” in traveling to receive care in a VA medical facility, including environmental factors such as roads that are not accessible to the general public, traffic, or hazardous weather; a medical condition that affects the ability to travel; or other factors, as determined by the Secretary. The interim final rule revised § 17.1510(b)(4)(ii) to include environmental factors such as roads that are not accessible to the general public, traffic, or hazardous weather, or a medical condition that affects the ability to travel. The interim final rule also added three “other factors” to § 17.1510(b)(4)(ii)(A) through (C): The nature or simplicity of the hospital care or medical services the veteran requires; how frequently the veteran needs such hospital care; or medical services, and the need for an attendant, which is defined as a person who provides required aid and/or physical assistance to the veteran, for a veteran to travel to a VA medical facility for hospital care or medical services. VA received one positive comment in support of the revisions to § 17.1510(b)(4)(ii), and we thank the commenter for this feedback. VA did not receive any comments that suggested changes to the revisions to § 17.1510(b)(4)(ii), and therefore does not make further regulatory revisions.

    Comments regarding changes in Public Law 114-41 related to veteran eligibility, periods of follow up care, wait times, distance requirements, and provider eligibility.

    Section 4005(b) of Public Law 114-41 amended section 101 of the Choice Act to remove the August 1, 2014, enrollment date restriction, thereby making all veterans enrolled in the VA health care system under § 17.36 potentially eligible for the Program if they meet its other eligibility criteria. Section 17.1510 was therefore revised in the interim final rule to codify this expanded eligibility for the Program. VA implemented this change ahead of the § 17.1510 revision, as this change was not subject to notice and comment because it had an immediate effective date and VA did not need to interpret the language of the public law to give it effect. VA also did not receive any comments on this revision, and does not make any further regulatory revisions.

    Section 4005(a) of Public Law 114-41 amended section 101(h) of the Choice Act by removing the 60-day limitation on an “episode of care.” Sec. 4005(a), Public Law 114-41, 129 Stat. 443. The definition of “episode of care” in § 17.1505 was therefore revised in the interim final rule by removing the phrase “which lasts no longer than 60 days from the date of the first appointment with a non-VA health care provider,” and the 60-day limitation was replaced with a 1-year limitation, consistent with VA's authority in section 101(c)(1)(B)(i) of the Choice Act to establish a timeframe for authorization of care. VA received one comment in support of this change, but this comment also suggested that VA make exceptions to the 1-year limitation, particularly for chronic conditions, to avoid the possibility of the unnecessary cessation of care due to reauthorization requirements. The comment further suggested that VA should provide more specific information regarding what a community provider would need to submit to VA to obtain a broader authorization beyond 1-year, and that VA should provide more details on the process community providers may follow to “provide additional care outside the scope of the authorized course of treatment.” We agree that veterans should not experience cessations of treatment for an ongoing condition if they require care beyond one year; the regulations do therefore allow reauthorization for additional episodes of care as needed. However, we believe that it is important that VA reauthorize an episode of care annually even in those instances where it is apparent at the time of the initial authorization that the condition is chronic and care will be required for greater than one year. A chronic medical condition may change over time, resulting in a need to reexamine the authorized scope of care. Annual reauthorization of an episode of care provides an opportunity for VA to review the scope of the episode of care with the healthcare provider and make necessary revisions to meet the needs of the veteran. Care may only be provided within the scope of the authorized episode of care, as defined in § 17.1505 as a “necessary course of treatment, including follow-up appointments and ancillary and specialty services” for identified health care needs. If a community provider believes that a veteran needs additional care outside the scope of the authorized course of treatment, the health care provider must contact VA prior to administering such care to ensure that this care is authorized and therefore will be paid for by VA. Details regarding what specific information must be submitted or what processes must be followed to obtain authorizations for additional episodes of care, or for an authorization to provide care not authorized as part of the episode of care, is too specific for a regulation, but information is available from the contractors that administer the Choice program and from VA when the care is authorized under a Choice provider agreement. VA continually works with the contractors and with community providers to improve education and processes under the Program. VA does not make any further regulatory revisions based on this comment.

    Section 4005(d) of Public Law 114-41 amended section 101(b)(2)(A) of the Choice Act to create eligibility for veterans that are unable to be scheduled for an appointment within “the period determined necessary for [clinically necessary] care or services if such period is shorter than” VHA's wait time goals. Section 4005(d), Public Law 114-41, 129 Stat. 443. This new wait-times based criterion was added as paragraph (b)(1)(ii) of § 17.1510, and created eligibility when a veteran is unable to schedule an appointment within a period of time that VA determines is clinically necessary and which is shorter than VHA's wait time goals. VA received one positive comment in support of this revision, and we thank the commenter for this feedback. VA did not receive any comments that suggested changes to this revision, and therefore does not make further regulatory revisions.

    Section 4005(e) of Public Law 114-41 amended section 101(b)(2)(B) of the Choice Act to modify the 40-mile distance eligibility criterion to provide that veterans may be eligible if they reside more than 40 miles from “(i) with respect to a veteran who is seeking primary care, a medical facility of the Department, including a community-based outpatient clinic, that is able to provide such primary care by a full-time primary care physician; or (ii) with respect to a veteran not covered under clause (i), the medical facility of the Department, including a community-based outpatient clinic, that is closest to the residence of the veteran.” VA found that it would be impracticable and not veteran centric to apply a “seeking primary care” eligibility criterion, and therefore did not revise the general 40-mile requirement in § 17.1510(b)(1) in the interim final rule to reflect such a strict reading of the public law. However, VA did revise § 17.1505 to add a definition of “full-time primary care physician,” as well as amend the definition of “VA medical facility” to require that such a facility have a full-time primary care physician, so that for purposes of determining distance-related eligibility for the Program, VA considered a qualifying VA medical facility to include only those facilities with at least a full-time primary care physician. VA received one positive comment in support of this revision, and we thank the commenter for this feedback. VA did not receive any comments that suggested changes to this revision, and therefore does not make further regulatory revisions.

    Section 4005(c) of Public Law 114-41 amended sections 101(a)(1)(B) and 101(d) of the Choice Act to permit VA to expand provider eligibility beyond those providers expressly listed in section 101(a)(1)(B) of the Choice Act, in accordance with criteria as established by VA. In the interim final rule, VA revised § 17.1530(a) to refer to a new paragraph (e) that established eligibility for these other providers, and added a new paragraph (e) to § 17.1530 to list these providers specifically. VA also revised § 17.1530(d) to reorganize current requirements and add new requirements for these providers, in accordance with section 101(d)(5) of the Choice Act. VA received two positive comments in support of this revision, and we thank the commenters for this feedback. VA received one comment that inquired whether, given the expansion of eligible providers, such providers were required to be Medicare- participating providers. We clarify that eligible providers in the Program include but are not limited to Medicare-participating providers, as established in § 17.1530(a) and (e). With this clarification, and because VA did not receive any comments that suggested changes to this revision, we therefore do not make further regulatory revisions.

    Miscellaneous Comments

    The remaining five comments do not specifically pertain to the regulatory changes in the interim final rule, and are addressed here in turn.

    One commenter requested that the end date of August 7, 2017, for the Choice Act be removed and the program made permanent. The Choice Act, which was enacted on August 7, 2014, in Public Law 113-146, specifically prescribed that the Choice Program would be temporary, operating for 3 years or until the funding was exhausted, whichever came first. The 3-year sunset date was removed by Public Law 115-26, and so the Choice Program is authorized until the amounts appropriated in the Choice Fund are exhausted. Current regulations do not discuss the termination date of the Program, and VA does not make any regulatory changes based on Public Law 115-26 or this comment.

    Another commenter expressed a generalized concern that the Choice Program created additional barriers to access healthcare as well as expressed specific concerns about the Choice Program. To address the commenter's generalized concern related to barriers to access, we acknowledge the difficulties that some veterans have experienced and expressed since the inception of the Choice Program in August 2014, and we are similarly sympathetic to the commenter's expressed experiences. Congress mandated that VA implement the Choice Program in 90 days, and implementing such an unprecedented program in terms of VA care in the community on a nationwide basis, in 90 days, resulted in growing pains for veterans, community providers, and VA. During the initial year of the Choice Program, VA met with veterans, community providers, leading healthcare experts, and staff across the country to hear concerns and identify solutions. In order to immediately implement changes to the Choice Program, VA brought in new leadership to oversee all Community Care Programs. Under this new leadership, VA quickly began to improve the Choice Program and laid out a plan to drive towards a future that delivers the best of VA and the community. VA has earnestly tried to implement the Choice Program in accord with legal requirements while being mindful of veteran concerns and administrative realities, and VA will continue to strive to reduce any barriers communicated to us by veterans. VA does not make any regulatory changes to address the commenter's generalized concerns about the Choice Program.

    As to the commenter's specific concerns, the commenter stated that there are no clear channels for resolution of complaints or problems when authorization for care has been delayed. The commenter further elaborated that it is difficult to access the Choice Program call centers and, once contact is made with the call center, it is difficult to receive answers from the employees working in the call centers. The commenter suggested that a process be put in place to address complaint resolution. We interpret these concerns to be limited to issues that arise administratively when the veteran is already enrolled in the Choice Program, such as delays in authorization, and not concerns regarding eligibility to participate in the Choice Program or concerns with clinical decisions throughout the course of treatment. Therefore, we further interpret these concerns to relate to the internal processes relating to administration of the program and do not make any regulatory changes. However, we describe below processes and improvements that both VA and the contractors that administer the Choice Program have undertaken and which we believe obviate the need for more formal processes in regulation.

    VA has taken affirmative steps to decrease administrative burdens such as delays in authorization and has improved access to VA staff through the VA call centers and the internet. For instance, VA has reduced the administrative burden for medical record submission for community providers by streamlining the documents required. We also have strived to improve veterans' experience with the call centers throughout the past year. More specifically, in May 2015, it took approximately 11 days to contact the veteran, obtain their provider and appointment preference, and work with the community provider to schedule an appointment; by May 2016, the average number of days to accomplish those tasks decreased to only 6. The Choice Program call centers have also continued to improve with a call abandon rate of less than 2 percent; a call hold time of no more than 7 seconds; and first-time call resolution over of 96 percent. In addition, Veterans are able to contact VA directly through this website that is available to the public: http://www.va.gov/opa/choiceact/. The website contains information about the program, a phone number that veterans can call in order to speak to a person directly, and also contains a live chat option that is available to veterans Monday through Friday from 8 a.m. to 8 p.m., eastern standard time. The vendors who administer the Choice Program additionally have processes in place for veterans who experience delays when receiving care in the community. The complaints and grievance processes for the contractors, TriWest and Health Net, are available at their public websites, respectively: http://www.triwest.com/globalassets/documents/veteran-services/complaint-grievance_form.pdf and https://www.hnfs.com/content/hnfs/home/va/provider/resources/resources/grievances.html.

    The commenter next expressed the specific concern that rural veterans are disproportionately negatively impacted by barriers created by the Choice Act and VA and that such veterans' feedback is not heard by VA as a result of their disability status and geographic location. We first clarify that VA strives to gain feedback from all veterans, including those who live in rural areas, about their experiences with the Choice Program. To obtain feedback from all veterans, regardless of their geographic location, VA developed a Survey of Healthcare Experiences of Patients (SHEP) for veterans to complete after receiving Choice care. We further acknowledge that there are unique problems that affect rural veterans and that it may be more difficult for rural veterans to obtain health care near their residence. In this regard, the 40-mile distance criterion in the Choice Program regulations at § 17.1510(b)(2) is designed to address accessibility issues that affect rural Veterans. Particularly, the 40-mile criterion has been interpreted by VA to consider driving distance and not straight line distance (see 80 FR 22906, April 24, 2015), and to further interpret that this distance must be from a Veteran's residence to a VA medical facility that has at least one full time equivalent primary care physician (see 80 FR 74991, December 1, 2015). Both of these interpretations we believe increase the number of rural veterans eligible for the program, and VA otherwise actively seeks and documents the concerns of rural veterans that participate in the Choice program with its SHEP survey as described above. Therefore, we make no regulatory changes based on this comment.

    The commenter also stated that the Choice Program has created coordination of care issues for non-VA providers who administer health care for veterans. The commenter did not elaborate on what those issues are or how the Choice Program created them, or whether the interim final rule exacerbated the issues, and the commenter also did not suggest any changes to alleviate the issues. We do acknowledge that there may have been difficulty with coordination of care at the inception of the Choice Program, and, to enhance coordination of care for veterans, we have embedded Choice contractor staff with VA staff at 14 VA facilities, and continue to increase the number of embedded Choice contractor staff locations. As the commenter did not provide enough specificity for suggested regulatory changes, and we believe VA has undertaken efforts to mitigate coordination of care issues, we do not make any regulatory revisions based on this comment.

    Finally, the commenter explained that it was easier to seek care prior to the Choice Program and that, even though the Program is voluntary, veterans are being told that they must use the Choice Program over VA care and other VA care in the community permitted by legal authorities other than the Choice Act. We first clarify that the Choice Program is voluntary and veterans are provided the option of obtaining care solely at VA medical facilities. Significantly, the Choice Program is designed to respect and guarantee a veteran's choice to see a VA provider or a non-VA provider if they meet Choice Program criteria. In fact, if an eligible veteran elects to receive covered care through the Choice Program, VA is required by the Choice Act to furnish the care through the Program. In addition, the Choice Act authorized VA to purchase care through Choice provider agreements, which gives VA greater flexibility when furnishing care through the Choice Program. VA recognizes that some veterans faced administrative barriers and hurdles while seeking care through the Choice Program and that some veterans may have found it was easier in the past to seek VA care in the community under legal authorities other than the Choice Act. To ensure the Choice Program provides high quality and accessible care, VA has made and will continue to make improvements by working with Congress, our community providers, our Choice Program contractors and within VA. Therefore, we do not make any further regulatory revisions based on this comment.

    The final three comments are beyond the scope of the interim final rule and we will not make any regulatory changes based on the comments. One commenter expressed concern about the recertification process to become a vendor and contract with VA through “vetbiz.gov.” The process of vendorization on vetbiz.gov does not apply for clinical providers under the Choice Act. As the commenter did not otherwise reference the interim final rule or the Choice Program regulations generally, nor did the commenter state how the ability to recertify as a vendor was affected by the interim final rule or Choice regulations, we find that the comment is beyond the scope of the rulemaking.

    Another commenter supported the interim final rule because it would enable the commenter to access community care near the commenter's residence in Panama. Care under the Choice Program is not provided outside of the United States. VA's only authority to provide care abroad is through the foreign medical care provisions in 38 U.S.C. 1724, and the Choice Act did not affect this limitation.

    Another commenter expressed a concern over the potentially burdensome nature of the administrative requirements to participate in the Choice Program. Specifically, the commenter requested that VA be mindful that an overly complicated process to apply to participate in the Choice Program may deter people who are eligible and entitled to participate in the Program. The commenter did not specify what these burdens are or if they were made worse by revisions in the interim final rule. Therefore, we interpret the comment to be general in scope. Although the interim final rule and the Choice regulations contain eligibility criteria, they do not contain any requirements or guidance for how to apply to participate in the Choice Program. Therefore, we find that the comment is not within the scope of the rulemaking and we will not make any regulatory changes based on this comment.

    Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as confirmed by this final rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

    Paperwork Reduction Act

    Although this action contains provisions constituting collections of information, at 38 CFR 17.1530(d), under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for § 17.1530(d) are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0823.

    Executive Orders 12866, 13563, and 13771

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

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined that this is an economically significant regulatory action under Executive Order 12866. VA's regulatory impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its regulatory impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 through FYTD. This rule is not subject to the requirements of E.O. 13771 because this rule results in no more than de minimis costs.

    Congressional Review Act

    This regulatory action is a major rule under the Congressional Review Act, 5 U.S.C. 801-08, because it may result in an annual effect on the economy of $100 million or more. Although this regulatory action constitutes a major rule within the meaning of the Congressional Review Act, 5 U.S.C. 804(2), it is not subject to the 60-day delay in effective date applicable to major rules under 5 U.S.C. 801(a)(3) because the Secretary finds that good cause exists under 5 U.S.C. 808(2) to make this regulatory action effective on the date of publication, consistent with the reasons given for the publication of the interim final rule. In accordance with 5 U.S.C. 801(a)(1), VA will submit to the Comptroller General and to Congress a copy of this regulatory action and VA's Regulatory Impact Analysis.

    Unfunded Mandates

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

    Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not have a significant economic impact on participating eligible entities and providers who enter into agreements with VA. To the extent there is any such impact, it will result in increased business and revenue for them. We also do not believe there will be a significant economic impact on insurance companies, as claims will only be submitted for care that will otherwise have been received whether such care was authorized under this Program or not. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.008—Veterans Domiciliary Care; 64.011—Veterans Dental Care; 64.012—Veterans Prescription Service; 64.013—Veterans Prosthetic Appliances; 64.014—Veterans State Domiciliary Care; 64.015—Veterans State Nursing Home Care; 64.024—VA Homeless Providers Grant and Per Diem Program; 64.026—Veterans State Adult Day Health Care; 64.029—Purchase Care Program; 64.035—Veterans Transportation Program; 64.038—Grants for the Rural Veterans Coordination Pilot; 64.039—CHAMPVA; 64.040—VHA Inpatient Medicine; 64.041—VHA Outpatient Specialty Care; 64.042—VHA Inpatient Surgery; 64.043—VHA Mental Health Residential; 64.044—VHA Home Care; 64.045—VHA Outpatient Ancillary Services; 64.046—VHA Inpatient Psychiatry; 64.047—VHA Primary Care; 64.048—VHA Mental Health Clinics; 64.049—VHA Community Living Center; 64.050—VHA Diagnostic Care.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document Janaury 12, 2018, for publication.

    Dated: May 8, 2018. Consuela Benjamin, Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. PART 17—MEDICAL Accordingly, the interim rules amending 38 CFR part 17 which were published at 80 FR 74991 on December 1, 2015, and 81 FR 24026 on April 25, 2016, are adopted as final without change.
    [FR Doc. 2018-10054 Filed 5-10-18; 8:45 am] BILLING CODE 8320-01-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AQ06 Authority of Health Care Providers To Practice Telehealth AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) is amending its medical regulations by standardizing the delivery of care by VA health care providers through telehealth. This rule ensures that VA health care providers can offer the same level of care to all beneficiaries, irrespective of the State or location in a State of the VA health care provider or the beneficiary. This final rule achieves important Federal interests by increasing the availability of mental health, specialty, and general clinical care for all beneficiaries.

    DATES:

    This final rule is effective June 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Galpin, MD, Executive Director Telehealth Services, Veterans Health Administration Office of Connected Care, 810 Vermont Avenue NW, Washington, DC 20420, (404) 771-8794, (this is not a toll-free number), [email protected]

    SUPPLEMENTARY INFORMATION:

    In a document published in the Federal Register on October 2, 2017, VA proposed to amend its medical regulations by standardizing the delivery of health care by VA health care providers through telehealth. 82 FR 45756. VA provided a 30-day comment period, which ended on November 1, 2017. We received 75 comments on the proposed rule.

    Section 7301 of title 38, United States Code (U.S.C.), establishes the general functions of the Veterans Health Administration (VHA) within VA, and establishes that its primary function is to “provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary [of Veterans Affairs (Secretary)] pursuant to this title.” See 38 U.S.C. 7301(b). The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department, including agency personnel and management matters. See 38 U.S.C. 303. To this end, Congress authorized the Secretary “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” See 38 U.S.C. 501(a). The Under Secretary for Health is directly responsible to the Secretary for the operation of VHA. See 38 U.S.C. 305(b). Unless specifically otherwise provided, the Under Secretary for Health, as the head of VHA, is authorized to “prescribe all regulations necessary to the administration of the Veterans Health Administration,” subject to the approval of the Secretary. See 38 U.S.C. 7304.

    To allow VA to carry out its medical care mission, Congress also established a comprehensive personnel system for certain VA health care providers, independent of the civil service rules. See 38 U.S.C. chapters 73-74. Congress granted the Secretary express statutory authority to establish the qualifications for VA's health care providers, determine the hours and conditions of employment, take disciplinary action against employees, and otherwise regulate the professional activities of those individuals. See 38 U.S.C. 7401-7464.

    To be eligible for appointment as a VA employee in a health care position covered by 38 U.S.C. 7402(b) (other than a medical facility Director appointed under section 7402(b)(4)), a person must, among other requirements, be licensed, registered, or certified to practice his or her profession in a State. The standards prescribed in section 7402(b) establish only the basic qualifications necessary “[t]o be eligible for appointment” and do not limit the Secretary or Under Secretary for Health from establishing other qualifications for appointment, or additional rules governing such personnel. In particular, section 7403(a)(1) provides that appointments under chapter 74 “may be made only after qualifications have been established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.” Such authority is necessary to ensure the viability of our national health care system, which is designed to ensure the well-being of those who have “borne the battle.”

    Just as it is critical to ensure there are qualified health care providers on-site at all VA medical facilities, VA must ensure that all beneficiaries, specifically including beneficiaries in remote, rural, or medically underserved areas, have the greatest possible access to mental health care, specialty care, and general clinical care. Thus, VA developed a telehealth program as a modern, beneficiary- and family-centered health care delivery model that leverages electronic information or telecommunication technologies to support clinical health care, patient and professional health-related education, public health, and health administration, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located at the time the health care is provided. Telehealth enhances VA's capacity to deliver essential and critical health care services to beneficiaries located in areas where certain health care providers may be unavailable or to beneficiaries who may be unable to travel to the nearest VA medical facility for care because of their medical conditions. By providing health care services by telehealth from one State to a beneficiary located in another State or within the same State, whether that beneficiary is located at a VA medical facility or in his or her own home, VA can use its limited health care resources most efficiently.

    Congress has required other Departments and agencies to conduct telehealth programs. See, e.g., Public Law 114-328, sec. 718(a)(1) (“the Secretary of Defense shall incorporate, throughout the direct care and purchased care components of the military health system, the use of telehealth services”). While VA does not have an analogous mandate, several statutes confirm that Congress intends for VA to operate a national health care system for beneficiaries that includes telehealth. Congress has required the Secretary “to carry out an initiative of teleconsultation for the provision of remote mental health and traumatic brain injury assessments in facilities of the Department that are not otherwise able to provide such assessments without contracting with third-party providers or reimbursing providers through a fee basis system.” See 38 U.S.C. 1709A(a)(1). Congress has authorized the Secretary to “waive the imposition or collection of copayments for telehealth and telemedicine visits of veterans under the laws administered by the Secretary.” See 38 U.S.C. 1722B. And, as recently as December 2016, Congress required VA to initiate a pilot program to provide veterans a self-scheduling, online appointment system; this pilot program must “support appointments for the provision of health care regardless of whether such care is provided in person or through telehealth services.” See Public Law 114-286, sec. 3(a)(2).

    In an effort to furnish care to all beneficiaries and use its resources most efficiently, VA needs to operate its telehealth program with health care providers who will provide services via telehealth to beneficiaries in States in which they are not located, licensed, registered, certified, or otherwise authorized by the State. Without this rulemaking, doing so may jeopardize these providers' credentials, including fines and imprisonment for unauthorized practice of medicine, because of conflicts between VA's need to provide telehealth across the VA system and some States' laws or requirements for licensure, registration, certification, that restrict the practice of telehealth. A number of States have already enacted legislation or regulations that restrict the practice of interstate telehealth.

    This final rulemaking clarifies that VA health care providers may exercise their authority to provide health care through the use of telehealth, notwithstanding any State laws, rules, licensure, registration, or certification requirements to the contrary. In so doing, VA is exercising Federal preemption of conflicting State laws relating to the practice of health care providers; laws, rules, regulations, or other requirements are preempted to the extent such State laws conflict with the ability of VA health care providers to engage in the practice of telehealth while acting within the scope of their VA employment. Preemption is the minimum necessary action for VA to furnish effective telehealth services because it would be impractical for VA to lobby each State to remove any restrictions that impair VA's ability to furnish telehealth services to beneficiaries and then wait for the State to implement appropriate changes. That process would delay the growth of telehealth services in VA, thereby delaying delivery of health care to beneficiaries. It would be costly and time-consuming for VA and would not guarantee a successful result. We note that, apart from the limited action of authorizing telehealth across and within jurisdictions in furtherance of important Federal interests, this rulemaking does not expand the scope of practice for VA health care providers beyond what is required or authorized by Federal law and regulations or as statutorily defined in the laws and practice acts of the health care provider's State of licensure. Additionally, this rulemaking does not affect VA's existing requirement that all VA health care providers adhere to restrictions imposed by their State license, registration, or certification regarding the professional's authority to prescribe and administer controlled substances. To further clarify this point, we have changed subsection (b) to clearly state that this section does not otherwise grant health care providers additional authorities that go beyond what is required or authorized by Federal law and regulations or as defined in the laws and practice acts of the health care providers' State license, registration, or certification. This is simply a clearer statement of the policy articulated in the proposed rule, but is being added because of the public comments we received expressing differing views on this matter.

    For these reasons, VA is establishing a new regulation, 38 CFR 17.417, that authorizes VA health care providers to treat beneficiaries through telehealth irrespective of the State, or of the location in a State, of the VA health care provider or the beneficiary.

    Most of the comments that were received on the proposed rule support the rule and are summarized as follows. We received several comments supporting the rule saying that it would increase access to health care, specifically for those beneficiaries who live in rural and medically underserved areas who are not able to go to a VA medical facility either because of their location or their medical conditions. We also received many comments in support of the rule stating that telehealth has been shown to improve clinical outcomes and would improve the quality of care at VA. The commenters stated that the telehealth program would be successful in treating beneficiaries with a variety of conditions, including respiratory conditions, cardiovascular conditions, psychotherapy, post-traumatic stress disorder, traumatic brain injuries, Parkinson's disease, multiple sclerosis, vision loss, sleep disorders, and audiological conditions. One commenter summarized key clinical studies demonstrating the benefits of telehealth technologies. Similarly, commenters stated that more convenient access to health care would result in more personalized care, more engagement by beneficiaries and their caregivers, better health outcomes, and an improved quality of life. Several commenters stated that the proposed rule would help streamline health care for veterans and would facilitate modern, beneficiary and family centered health care.

    In addition to the benefits for VA beneficiaries, many commenters supported the rule because it would benefit VA more generally and VA's health care providers. A commenter supported the rule, saying that it would protect health care providers while they are practicing within the scope of their VA employment. Multiple commenters supported the rule citing its cost effectiveness. In addition, a commenter said that it would result in shorter appointments for patients and physicians and would also decrease appointment no-show rates. Other commenters said that the rule would reduce the use and cost of transportation, save beneficiaries and their caregivers hours of their time and lost wages, result in hospital cost savings through decreased emergency room and hospital visits, and increase local revenues for laboratories and pharmacies. In addition, multiple commenters supported the rule stating that State licensing barriers hindered telehealth and that it was necessary to remove artificial and geographic State barriers. A commenter also stated that they supported the proposed rule because it would provide opportunities for the medical students and residents who train at VA to become familiar with telehealth and be exposed to its optimal uses.

    Several commenters supported the rule because it did not include contract physicians. In particular, one commenter stated that contract physicians are not subject to the same accountability, oversight, training, and quality control as those employed directly by VA. We are not making any edits based on these positive comments.

    In addition to the previously discussed comments supporting the rule, the Federal Trade Commission (FTC) also submitted a supportive comment. Specifically, the FTC said that the rule would likely increase access to telehealth services, increase the supply of telehealth providers, increase the range of choices available to patients, improve health care outcomes, reduce long-term costs by reducing hospitalizations and treatment of advanced disease, and reduce travel costs incurred by VA. The rule would also enhance price and non-price competition and improve the ability of VA to compete more effectively by hiring qualified providers and reducing VA's health care costs. FTC also stated that the rule would provide an important example to non-VA health care providers, state legislatures, employers, patients, and others of telehealth's potential benefits and may spur innovation among other health care providers and, thereby, promote competition and improve access to care. In addition, FTC stated that the rule may afford a valuable opportunity to gather data and provide additional evidence for VA and outside policymakers to assess the effects of telehealth expansion, thereby benefitting VA beneficiaries and health care consumers generally. We are not making any edits based on these comments.

    We received multiple comments that favored VA's proposed rule and that focused on how VA could utilize specific commercially available software and company products. The commenters believed that these products could improve the telehealth services described in the proposed rule. We appreciate the commenters' suggestions and innovative solutions, but these comments are beyond the scope of the proposed rule, which does not address the specific technology or platforms VA uses in furnishing telehealth. We are not making any edits based on these comments.

    A commenter was in support of the proposed rule but added that the rule should extend to all VA-funded health services. The proposed rule only addressed the protection of VA health care providers while providing telehealth services within the scope of their VA employment. We do not believe it is prudent or necessary at this time to include contract providers within the scope of this rule. We are not making any edits based on this comment.

    A commenter supported the rule, but indicated that VA should have a mechanism in place to monitor the overall satisfaction and health of the beneficiaries who receive care via telehealth. VA is committed to ensuring that beneficiaries receive high quality health care. VA has controls in place to continuously monitor the health care provided by all VA health care providers, including telehealth providers. This rule will not affect the quality of the health care provided or the internal controls currently in place. We are not making any edits based on this comment.

    Several commenters indicated that the rule should be extended to cover health care providers who participate in the Veterans Choice Program, authorized by section 101 of the Veterans Access, Choice, and Accountability Act of 2014 or other health care furnished by non-Department providers. Similarly, another commenter said that the rule restricts VA “regarding contracting with an outside entity that may be able to fill a need through Choice or any other community care program.” The commenter stated that VA can ensure that a contractor meets the full standard of VA appointees by requiring that the contractor be a VA appointee and requiring that the contractor meet the licensure and credentialing requirements of 38 U.S.C. 7402(b).

    VA acknowledges that the rule does not provide the same protection for community health care providers furnishing care for VA, including health care providers who participate in the Choice Program, as it does for VA health care providers. The proposed rule stated that a health care provider must be appointed by VA and cannot be a VA-contracted health care provider. Community health care providers may practice telehealth; however, they would be required to adhere to their individual State license, registration, or certification requirements and would not be otherwise covered by this rule. We do not believe it is prudent or necessary at this time to include contract providers within the scope of this rule. Additionally, contractors are not given an appointment to VA; only employees are given appointments. To further clarify this point, we have changed subsection (a)(2)(iv) to clearly state that this section does not apply to VA-contracted health care providers. This is simply a clearer statement of the policy articulated in the proposed rule, but is being added because of the public comments in which there is confusion as to whether a contractor is a VA employee. Finally, community providers may be unable or unwilling to furnish telehealth across State lines. The Federal Tort Claims Act (FTCA) would cover VA providers in the event of a malpractice claim, but FTCA does not cover community providers. It is unclear whether or not the insurers or State level tort claims acts would cover community providers in the case of malpractice. We are not making any other edits based on these comments.

    A commenter stated that VA should pay physicians under the Veterans Choice Program at or above the Medicare rate, and that VA should include rural health clinics in the Veterans Choice Program. These issues are related to administration of the Veterans Choice Program and not to this rule, which governs VA employees' authority to practice telehealth. This comment is, therefore, beyond the scope of the proposed rule. We are not making any edits based on this comment.

    Several commenters indicated that VA should take further efforts to combat States' laws restricting telehealth. We stated in the proposed rule that it would be “impractical for VA to lobby each State to remove its restrictions that impair VA's ability to furnish telehealth services to beneficiaries and then wait for the State to implement appropriate changes.” We understand the commenters' concerns and agree that having equitable State laws relating to telehealth would be ideal. However, such action is beyond the scope of this rulemaking. We are not making any edits based on these comments.

    Several commenters were in favor of the rule but stated that registered nurses, nurse practitioners, physician assistants, and advanced practice registered nurses should be allowed to practice to the full extent of their clinical education, training, and national certificates. Several commenters also indicated that VA should prohibit the supervision of certified registered nurse anesthetist services from being included as part of the expansion of telehealth services in VA. The granting of full practice authority to certain advanced practice registered nurses has already been addressed via rulemaking. See 38 CFR 17.415 and 81 FR 90198. Moreover, the proposed rule only addressed the types of settings where VA health care providers could provide telehealth services and established that all VA health care providers may be allowed to practice telehealth. As previously said in this rulemaking, the proposed rule does not expand VA health care providers' authority beyond what is required or authorized by Federal law and regulations or as defined in the laws and practice acts of the health care provider's State of licensure. Any changes except preempting State laws, rules, regulations and requirements that restrict VA's telehealth authority are beyond the scope of the proposed rule. We are not making any edits based on these comments.

    One commenter was concerned that health care providers would not be protected under their medical malpractice insurance plans. This rulemaking will allow VA to better protect its health care providers who practice telehealth within the scope of their VA employment, regardless of conflicting State laws or regulations. The FTCA is the exclusive remedy “for damages for personal injury, including death, allegedly arising from malpractice or negligence of a health care employee of the [Veterans Health] Administration in furnishing health care or treatment while in the exercise of that employee's duties in or for the Administration.” See 38 U.S.C. 7316. Subsection (c) of the statute provides in part: “Upon a certification by the Attorney General that the defendant was acting in the scope of such person's employment in or for the Administration at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be . . . deemed a tort action brought against the United States under the provisions of title 28 and all references thereto.” VA health care providers would, therefore, be protected from personal liability while providing care within the scope of their VA employment, including the provision of telehealth services. We are not making any edits based on this comment.

    Several commenters were concerned that a health care provider would not be protected from all individual actions by the State against the provider's license, registration, or certification by the proposed rule. Another commenter indicated that a health care provider would be engaged in unauthorized health care practice unless the provider was licensed, registered, or certified in the State where they practice. As we said in the proposed rule, “VA would exercise Federal preemption of State licensure, registration, and certification laws, rules, regulations, or requirements to the extent such State laws conflict with the ability of VA health care providers to engage in the practice of telehealth while acting within the scope of their VA employment.” We also said that “in circumstances where there is a conflict between Federal and State law, Federal law would prevail in accordance with Article VI, clause 2, of the U.S. Constitution (Supremacy Clause).” Therefore, VA health care providers are protected by this final rule from any actions by individual States or State licensing boards to enforce a State law, rule, regulation or requirement while VA health care providers are practicing telehealth within the scope of their VA employment. We are not making any edits based on these comments.

    A commenter strongly supported States' ability to regulate the practice of telehealth within their State, saying that “only physicians and surgeons licensed in [a State] should be allowed to practice medicine in [in that State], in order to ensure the highest quality medical care is being provided to health care consumers.” The commenter further said that the proposed rule “would undermine [the State's] ability to protect health care consumers, as the Board will have no ability to discipline VA providers that are licensed in another state and providing telehealth outside of a VA facility in [that State], as they do not hold a license to practice medicine in [their State].” VA disagrees that this rulemaking will undermine the States' abilities to protect their health care consumers. VA has robust requirements for disciplining providers who fail to provide adequate health care, which includes reporting that provider to his or her licensing board, if applicable. We are not making any edits based on this comment.

    One commenter recommended that VA work to improve the system for investigating, removing, and reporting bad providers to State licensing boards and also recommended that this be part of the policy that would implement this rulemaking. Another commenter also expressed concern that if a State cannot discipline a physician practicing medicine within its borders, it undermines the medical licensure system. VA currently has a system in place for reporting health care providers to State licensing boards whose behavior or clinical practice so substantially failed to meet generally-accepted standards of clinical practice as to raise reasonable concern for the safety of patients. VA continues to work closely with State licensing boards to further improve the reporting of VA health care providers who have failed in VA's mission of providing safe care to its beneficiaries. Patients would still have the ability to file a tort claim and States would still have ability to prosecute for criminal offenses. However, this rulemaking only focuses on the expansion of VA telehealth services and only prohibits States from taking actions to enforce a State law, rule, regulation or requirement against VA health care providers while practicing telehealth. We are not making any edits based on these comments.

    One commenter indicated that telehealth may not be the appropriate means of delivering health care to beneficiaries with some mental health conditions. Another commenter said that telehealth would not benefit homeless beneficiaries who suffer from mental conditions. We agree with the commenters that telehealth may not be the most appropriate means for the delivery of health care for all beneficiaries. However, health care providers and beneficiaries will have the opportunity to determine the best treatment option for the delivery of health care in each individual situation. We also agree that the delivery of health care via telehealth in a beneficiary's home may not be a viable means of health care for a homeless beneficiary. However, homeless beneficiaries may still benefit from telehealth visits from their local VA medical facility. A homeless beneficiary can be seen in a VA medical facility and be treated for his or her health condition from a health care specialist who is remotely performing the health care visit from another VA medical facility. We are not making any edits based on these comments.

    Several commenters were concerned that the health care provider would rely on verbal communication and not be able to observe symptoms such as manic behaviors, tremors, cuts, bruises, or other possible signs of self-imposed injuries that would have otherwise been visible in an in person exam. A commenter said that health care providers would get a limited medical history by examining a beneficiary via telehealth, especially if the beneficiary has comorbidities and addictions that may not be obvious via telehealth. The commenter further said that beneficiaries could be misdiagnosed and some health care conditions missed if the beneficiary was only seen via telehealth. Another commenter said that a face to face interview helps a health care provider gain a better rapport with a patient. Another commenter was also concerned that the continuity of health care would be affected because the primary care provider would not have access to the telehealth records and thus be presented with an incomplete medical history of the patient. This would especially be detrimental if the beneficiary had been prescribed medications during the telehealth visit. The commenter indicated that the beneficiary would receive a lower quality of care via telehealth than what they would have received in an in-person health care visit. Another commenter said that the use of telehealth for eye care services should not substitute the benefits of an in-person eye examination. This rulemaking authorizes VA providers to offer telehealth services as an option for beneficiaries irrespective of the location of the health care provider or the beneficiary. The rule enhances the accessibility of VA health care by providing beneficiaries an additional option through which they can engage in the health care system. The rule does not create a requirement for service delivery through telehealth; instead, it empowers health care providers and beneficiaries to choose when telehealth is appropriate. VA believes that the health care provider and the beneficiary are in the best position to make decisions about the risks and benefits of any health care decision and will ultimately decide the best option for the delivery of such care. Also, VA health care providers will have access to a beneficiary's health record during a telehealth visit and the telehealth visit will become part of the health record. We are not making any edits based on these comments.

    Several commenters questioned the privacy of the beneficiary when video-conferencing was used. The commenters were concerned that the telehealth visit would be intercepted by a third party, which would violate the beneficiary's privacy. A commenter was also concerned that putting the beneficiary's information on an online database would give rise to Health Insurance Portability and Accountability Act (HIPAA) and security concerns. Another commenter said that the proposed rule did not “identify security standards or other requirements VA health care providers are expected to abide by when providing services via telehealth.” Information security and privacy are critical priorities for VA. The Veterans Health Administration, and its telehealth program, work hand in hand with the VA Office of Information Technology and Information Security when implementing telehealth programs. Equipment, software, and process choices are made to mitigate security risks and ensure adherence to the Federal Government's stringent information security and privacy requirements, including standards defined by the Federal Information Security Management Act, the National Institute of Standards and Technology, the Privacy Act, and HIPAA. As an example of one measure to protect privacy, clinical video data is encrypted to mitigate the risk of third party interception during video visits. Beneficiary data will not be stored outside VA, nor will it persist on the beneficiary's device following the telehealth session. All VA employees, including health care providers, have to adhere to the privacy and security standards implemented by VA. We are not making any edits based on these comments.

    Another commenter strongly felt that beneficiaries should be seen in-person at least once before being prescribed medication, including controlled substances. Several commenters encouraged VA to establish an interagency working group between VA, the Food and Drug Administration, and the Drug Enforcement Administration (DEA) to ensure that beneficiaries have safe access to care by modernizing rules regarding advanced practice registered nurses prescriptive authority. The proposed rule said that the rule “does not affect VA's existing requirement that all VA health care providers adhere to restrictions imposed by their State license, registration, or certification regarding the professional's authority to prescribe and administer controlled substances.” We also said in the proposed rule that health care providers will continue to be subject to the limitations “imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” Any change to the Controlled Substances Act or the creation of a working group is outside the scope of the proposed rule. We are not making any edits based on these comments.

    One commenter was concerned that there might be insurance fraud on the part of health care providers who practice in one State and deliver health care services via telehealth in another State. VA health care providers would not directly engage in third party insurance claims. Moreover, billing is beyond the scope of this rulemaking. We are not making any edits based on this comment.

    Another commenter said that VA does not allow for “potential and applicable copayments and deductibles to be collected at the time of service for eligible veterans receiving care or services.” The commenter finds that not allowing this type of copayment collection is “unworkable and contrary to medical office billing practices.” We stated in the Supplementary Information paragraph of the proposed rule that “Congress has authorized the Secretary to “waive the imposition or collection of copayments for telehealth and telemedicine visits of veterans under the laws administered by the Secretary.” See 38 U.S.C. 1722B.” Also, under 38 CFR 17.108(e)(16), in-home video telehealth care is not subject to the collection of copayments. We are not making any edits based on these comments.

    Several commenters expressed concern that beneficiaries may not have access to a computer or the internet. The commenters were concerned that these beneficiaries would not be able to access health care via telehealth because of the lack of technology in the beneficiary's home. Another commenter was concerned that there might be potential connectivity issues in rural areas due to limited access to broadband internet. A commenter questioned whether VA would assist a beneficiary in setting up the telehealth services or provide financial assistance for the equipment or internet access. A commenter requested that VA clarify whether electronic information or telecommunications technologies includes video conferencing and telephone. VA continues to look into solutions to resolve technical difficulties in its expansion of telehealth services. This rulemaking addresses one critical barrier to standardizing service availability via telehealth, inclusive of video conferencing, telephone, and other telecommunication technologies, but does not address all barriers, including the access to technology. We are not making any edits based on these comments.

    A commenter questioned how the proposed rule would be affected by another proposed rule on Prosthetic and Rehabilitative Items and Services and how this other rule would impact telehealth service provision of certain equipment and services. The proposed rule does not address how VA would provide equipment used in telehealth visits. The provision of telehealth equipment is beyond the scope of the proposed rule. We are not making any edits based on this comment.

    A commenter asked whether VA would offer “cyber-clinical rooms” in VA medical facilities to provide telehealth services. Where beneficial, VA will equip space for telehealth assessments. We are not making any edits based on this comment.

    One commenter questioned how the beneficiary will know if telehealth is available to them for their health care needs. As previously said in this final rule, telehealth enhances the accessibility of VA health care by providing beneficiaries an additional option through which they can engage in the VA health care system. The rulemaking leaves the discussion about the health care modality chosen to the health care provider and the beneficiary. Also neither this final rule nor the proposed rule prescribe the details of how the telehealth program will be further implemented. We are not making any edits based on this comment.

    One commenter was concerned that the proposed rule did not address how a “potential emergent situation would be addressed in situations where neither party is located at a VA medical center or other clinical site especially if the telehealth encounter occurs across state lines.” The commenter stressed that VA should evaluate its protocols on telehealth to ensure continued patient safety, including having a back-up plan in case of an emergent situation, identifying a family member or other individual as a point of contact if the beneficiary experiences a crisis, and other types of local assistance for the beneficiary. VA has standard guidance to address emergent situations when providers and beneficiaries are not located at a VA medical facility or other clinical site, including when the telehealth visit occurs across State lines. A specific example of emergency management guidance is that health care providers are trained to have emergency contact information at the onset of video appointments for use in the event of an emergency. We are not making any edits based on this comment.

    One commenter expressed multiple concerns with the proposed rule. The commenter expressed concern that technology is necessary to utilize telehealth and that some beneficiaries may not want to use the technology while others may not be able to. The commenter felt that it was not fair to give beneficiaries the opportunity to have more access to health care by a means that they do not know how to use or do not want to use. We reiterate that the health care provider and the beneficiary will determine whether telehealth is appropriate in each individual situation; VA will not require telehealth. While we acknowledge the commenter's concern, VA believes that the health care provider and the beneficiary are in the best position to make decisions about the risks and benefits of any health care decision and will ultimately decide the best option for the delivery of such care. Moreover, allowing willing beneficiaries to participate in telehealth should increase the availability of in-person visits for those beneficiaries who prefer that option.

    Second, the commenter questioned authority VA has to override the State laws. The commenter said that in the absence of a specific mandate by Congress, this rule is an arbitrary agency action. The commenter explained that the Non-Delegation Doctrine prohibits Congress from delegating legislative powers to Federal agencies and that the Federal agency can only use those powers that Congress has chosen to give them in an enabling act. The commenter cited Executive Order 13132 and quoted portions from Section 4(a) and 4(c). Specifically, the commenter said, “[t]here has to be a federal statute that: `contains an express preemption provision or . . . some other clear evidence that Congress intended preemption of State law'. It follows: `Any regulatory preemption of State law shall be restricted to the minimal level necessary . . .' ”

    VA disagrees that we lack authority for this action. As explained in the proposed rule, Section 4(b) of Executive Order 13132 allows agencies to preempt State law so long as the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

    Here, the exercise of a State's authority directly conflicts with the exercise of Federal authority under the Federal statue. Specifically, a State rule limiting telehealth directly conflicts with VA's authority under 38 U.S.C. 7401-7464 to establish the qualifications for VA's health care providers and otherwise regulate the professional activities of those individuals (i.e., allow its health care providers to practice telehealth anywhere). As previously mentioned in this rulemaking, Congress has required the Secretary “to carry out an initiative of teleconsultation for the provision of remote mental health and traumatic brain injury assessments in facilities of the Department” and has otherwise required or authorized the use of telehealth by VA. See, e.g., 38 U.S.C. 1709A(a)(1).

    As to the commenter's citation to Section 4(c) of Executive Order 13132, which limits pre-emption to the minimum level needed to achieve the objectives of the statutes, VA believes that this final rule is restricted to the minimum level necessary to support its telehealth program. In particular, VA explicitly limited the scope of the rule to only allow its health care providers to practice telehealth anywhere. VA did not expand the scope of the rule to more generally allow its health care providers to practice beyond what is required or authorized by Federal law and regulations or as defined in the laws and practice acts of the health care provider's State of licensure, registration or certification.

    Finally, the commenter said that the Veterans E-Health and Telemedicine Support (VETS) Act of 2017 was introduced into the United States Senate in April 2017 and that it had not been approved by Congress or signed by the President. The commenter did not request that any changes be made to the regulation in light of the proposed legislation, nor did the commenter say that the final rule should not be published as a result of the proposed legislation. While legislative action would resolve any ambiguity as to VA's authority in this matter, the introduction of a piece of legislation is not evidence that VA does not already have authority in this area. VA has adequate authority for this rulemaking as described above and in the proposed rule. We make no edits to the rule based on this comment.

    Another commenter expressed concern that this rule was being implemented without clear direction from Congress and with an abbreviated comment period. As previously explained, an express mandate from Congress is not necessary for VA to regulate on this topic. In addition, although the period for public comment for this rule was 30 days instead of 60 days, VA determined that it was against public interest and the health and safety of VA beneficiaries to have the 60 day comment period, for the reasons specified in the proposed rule. Moreover, in compliance with Executive Order 13132 (Federalism), VA officially started consulting with State officials on July 12, 2017, well over 60 days prior to the publication of the rule. Therefore, the stakeholders most invested in the rule had more than 3 months to provide feedback to VA, and the majority of their comments supported the rule.

    The commenter also said that specific clarifications and additions are necessary to the rule. The commenter listed five criteria: (1) The standard of care must remain the same regardless of whether the services are provided via telehealth or in person; (2) eye and vision telehealth services cannot replace an in-person comprehensive eye examination; (3) the use of eye and vision telehealth may be appropriate for only certain uses that may be extended as new technologies are made available; (4) the use of eye and vision telehealth is not appropriate for establishing the doctor-patient relationship, for initial diagnosis, as a replacement for recommended face-to-face interactions, or as a replacement for partial or entire categories of care; and (5) screening for specific or groups of eye health issues using telehealth for direct-to-patient eye and vision-related applications should not be used to diagnose eye health conditions or as a replacement or replication for a comprehensive dilated eye examination. VA appreciates the commenter's specific suggestions for when telehealth is most appropriate for vision and eye care; however, the commenter's request for clarification is beyond the scope of this rulemaking. This rulemaking does not establish requirements for when telehealth will be used nor does it establish criteria that must be met for a beneficiary to seek health care via telehealth. Instead, this rulemaking allows VA health care providers to practice telehealth regardless of their location or the location of the beneficiary. VA will make determinations on when the use of telehealth (i.e., vision/eye care and the like) will be appropriate outside of this rule. As such, the commenter's requested suggestions are beyond the scope of the rulemaking.

    Similarly, the commenter expressed concern regarding the standard of care and how to best ensure patient safety when telehealth is used. The commenter provided examples of how various jurisdictions addressed this concern. The commenter also said that a “one-size-fits-all approach” would be a step backwards and that at any point in the diagnosis and care continuum the patient should have the right to choose in-person care. The commenter recommended that VA ensure that all beneficiaries are aware that they can choose between telehealth or in-person care at any point. To ensure beneficiaries are apprised of their rights, the commenter recommended that VA require beneficiaries to sign an informed consent form. VA reiterates that this rulemaking is narrowly tailored to clarify the authority of VA health care providers to practice telehealth within the scope of their VA employment. The rulemaking does not establish the criteria for beneficiaries to participate in the telehealth program nor does it authorize a lower standard of care for patients who choose to receive service via telehealth. Accordingly, the commenter's suggestions are beyond the scope of the rule.

    The commenter also said that, in the absence of a true mandate by Congress, it is critical that VA consider the most recent statutory actions from Congress related to telehealth. The commenter then suggested that VA incorporate additional language from the 21st Century Cures Act (Pub. L. 114-255) into VA's definition of telehealth. The commenter quoted the following language from the Act (section 4012(c), 130 Stat 1033, 1187-8).

    (c) Sense of Congress.—It is the sense of Congress that—. . . (2) any expansion of telehealth services under the Medicare program under title XVIII of such Act should—(A) recognize that telemedicine is the delivery of safe, effective, quality health care services, by a health care provider, using technology as the mode of care delivery; (B) meet or exceed the conditions of coverage and payment with respect to the Medicare program if the service was furnished in person, including standards of care, unless specifically addressed in subsequent legislation; and (C) involve clinically appropriate means to furnish such services.

    VA has considered the language in the Act, but finds that it is beyond the scope of this rulemaking. We make no edits to the rule based on this comment.

    We are making several minor revisions from the proposed rule. We said in the proposed rule that we would revise the undesignated center heading immediately after § 17.412 to read Authority of Health Care Providers to Practice in the Department. However, in order to maintain consistency in terminology we are amending the undesignated center heading by removing the term “Department” and adding in its place “VA.” We are not making any edits to the meaning of the language in the proposed rule.

    We said in the proposed rule that the title of new § 17.417 would be “Health care providers.” However, because this rule addresses health care providers practicing telehealth, we are revising the title of § 17.417 to now read “Health care providers practicing via telehealth.” We are similarly revising the title of paragraph (b) from “Health care provider's practice” to now read “Health care provider's practice via telehealth.” We are not making any edits to the meaning of the language in the proposed rule.

    We said in proposed paragraph (a)(2)(iii) that a health care provider was an individual who “Maintains credentials (e.g., a license, registration, or certification) in accordance with the requirements of his or her medical specialty as identified under 38 U.S.C. 7402(b).” In order to maintain consistency in terminology within this section, we are amending paragraph (a)(2)(iii) by removing the term “medical specialty” and adding in its place health care specialty. We are making a similar amendment to paragraph (c) by removing the term “medical and hospital care” and adding in its place “health care and hospital services.” We are not making any edits to the meaning of the language in the proposed rule.

    Proposed paragraph (b)(1) said, in part, “telehealth services, within their scope of practice and in accordance with privileges granted to them by the Department . . .”. However, in order to maintain consistency in terminology within this section, we are amending paragraph (b)(1) by removing the term “Department” and adding in its place “VA.” We are also adding the term “functional statement” and replacing “and” with “and/or” when describing when health care providers can provide telehealth services. Health care providers practice in accordance with their functional statement or scope of practice (for those not granted privileges) or privileges granted to them by VA; as such, we consider these clarifying revisions. We are not making any edits to the meaning of the language in the proposed rule.

    Based on the rationale set forth in the Supplementary Information to the proposed rule and in this final rule, VA is adopting the proposed rule with the edits discussed in this final rule.

    Executive Order 13132, Federalism

    Section 4 of Executive Order 13132 (Federalism) requires an agency that is publishing a regulation that preempts State law to follow certain procedures. Section 4(b) requires agencies to “construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.” Section 4(c) states “Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.” Section 4(d) requires that when an agency “foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.” Section 4(e) requires that when an agency “proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” Section 6(c) states that “To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation, (1) consulted with State and local officials early in the process of developing the proposed regulation; (2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and (3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.”

    Because this final rule preempts certain State laws, VA consulted with State officials in compliance with sections 4(d) and (e), as well as section 6(c) of Executive Order 13132. VA sent a letter to the National Governor's Association, Association of State and Provincial Psychology, National Council of State Boards of Nursing, Federation of State Medical Boards, Association of Social Work Boards, and National Association of State Directors of Veterans Affairs on July 12, 2017, to notify them of VA's intent to allow VA health care providers to practice telehealth irrespective of the location of the health care provider or beneficiary in any State and regardless of State telehealth restrictions. In addition, the Director of the Federation of State Medical Boards solicited comments and input from the nation's State Medical Boards. The Wisconsin Medical Examining Board unanimously passed a motion in support of the rule. The Rhode Island Board of Medical Licensure & Discipline (BMLD) responded to our letter by saying that BMLD considers physicians employed by VA to be exempt from license requirements as long as such physician maintains a valid license in another U.S. jurisdiction. BMLD also indicated that the exemption does not necessarily extend to prescribing controlled substances without an appropriate DEA registration. In response to that issue, we said in the proposed rule that, if finalized, VA health care providers would be subject to “the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” The State of Utah Department of Commerce also said that the Utah Occupations and Professions Licensing Act exempts from licensure requirements in Utah physicians, physician assistants, advanced practice nurses, psychologists or other health care providers who provide telehealth services as part of their VA employment as long as such health care provider is licensed in any State. Utah supports VA's efforts to enhance telehealth services to all veterans. The Florida Board of Medicine said that Florida does not prohibit the practice of telehealth except in certain circumstances and provided as an example that an in-person examination is required each time a physician issues a certification for medical marijuana. This final rule supersedes any State requirement regarding the practice of telehealth, such as the in-person examination requirement in Florida, and would maintain the restrictions imposed by Federal law and policy regarding the prescription of controlled substances. The North Carolina Medical Board recognizes the shortage of psychiatric care in rural and medically underserved communities and supports VA's initiative.

    The President of the National Association of State Directors of Veterans Affairs (NASDVA) sent an email to all of its State directors informing the directors of the association's intent to fully support VA's initiative. NASDVA also formally responded to our letter, and supports VA's plans to amend its regulations and enhance access to health care via telehealth services. The National Council of State Boards of Nursing (NCSBN) supports VA's initiative for health care providers to deliver services via telehealth, as long as such providers maintain a valid State license. However, the NCSBN does not support expanding VA State licensure exemptions to personal services contractors who practice telehealth. We said in the proposed rulemaking that VA contractors would not be permitted to practice telehealth services beyond what is authorized by their State license, certification, or registration, and that has not changed in this final rule.

    The Chief Executive Officer of the Association of State and Provincial Psychology Boards formally responded to our letter and indicated that this rule aligns with their current initiatives, specifically, Psychology Interjurisdictional Compact (PSYPACT) legislation, which has been adopted in three jurisdictions and is under active consideration in many more States. The PSYPACT legislation allows psychologists to provide telepsychology services across State lines via a compact without obtaining additional licenses. The Chief Executive Officer further said that these services will assist in addressing the delivery of telehealth services to veterans.

    The Veterans' Rural Health Advisory Committee (VRHAC) formally submitted a letter in support of the proposed rule. The letter said that although VA leads the way in being the largest provider of telehealth in the country, there are barriers that affect many rural and highly rural areas, which includes limited internet or cellular access with sufficient bandwidth to support the required applications and also State legislations that restrict the practice of telehealth across State lines or into a veteran's home. The commenter supports the proposed rule and further adds that expanding telehealth to rural and highly rural veterans across State lines would strengthen the delivery of care to enrolled veterans who live in rural and highly rural areas and supports the critical need for access to mental health care.

    The West Virginia Board of Osteopathic Medicine responded to VA's letter and indicated that West Virginia has made legislative changes to encourage physician participation in the VA system. The commenter said that W.Va. Code 30-14-12c authorizes the West Virginia licensing boards to issue a license to a physician licensed in another State via reciprocity when the applicant presents proof that they are a VA employee working in a VA medical facility that is located in a county where a nursing home is operated by the West Virginia Department of Veteran's Assistance. Also, W.Va. Code 30-14-12d states the requirements for practicing telemedicine in West Virginia and defines that the practice of medicine occurs where the patient is located and defines what constitutes a physician-patient relationship. The commenter said that the West Virginia Board of Osteopathic Medicine rarely knows when a VA physician is practicing in West Virginia without a West Virginia State license. However, the commenter cautioned that if a VA physician is licensed in West Virginia and does not follow state law and such action becomes known to the Board, the Board would file a complaint and investigate such action. The commenter said that their telehealth law was written to protect patients and indicated that veterans deserved the same high quality care. As we stated in the proposed rule, we are preempting State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment, and that has not changed in this final rule.

    The Pennsylvania State Board of Medicine responded to VA's letter and acknowledged the potential value for telehealth to expand access to health care, especially in rural and underserved areas. The commenter further stated that Pennsylvania law on the Interstate Medical Licensure Compact affirms that the practice of medicine occurs where the patient is located at the time of the health care encounter, which requires the physician to be under the jurisdiction of the State medical board where the patient is located. The commenter indicated that VA has oversight of its health care providers, however, the foundational principle that the physician should be licensed where the patient is located helps to assure the safety, quality, and accountability of the care provided. This rule preempts State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

    The Michigan Department of Licensing and Regulatory Affairs responded to VA's letter by stating that Michigan law does not require a VA health care provider to hold a Michigan State license in the discharge of official duties in a VA facility. The commenter also stated that telehealth at a VA medical facility would be permitted. However, if the health care provider is delivering care to the beneficiary's home, such provider would need a Michigan State license. As we indicated in the proposed rule, VA preempts State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment, and that has not changed in this final rule.

    The Virginia Board of Medicine responded to VA's letter by stating that the Executive Committee of the Board met and supported the enhancement of access to care for veterans. The commenter stated that the proposed rule should benefit many beneficiaries that have little or no access to health care.

    The comments provided above were placed on Regulations.gov for public inspection during the comment period. Stakeholders also had an opportunity to provide comments during the notice and comment period.

    This final rule complies with Executive Order 13132 by (1) identifying where the exercise of State authority would directly conflict with the rule; (2) limiting preemption to these areas of conflict; (3) restricting preemption to the minimum level necessary to achieve the objectives of the statutes pursuant to which the rule is promulgated; (4) consulting with the external stakeholders listed in this rule; and (5) providing opportunity for all affected State and local officials to comment on this final rulemaking.

    Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this final rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this rule or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rule if possible. If not possible, such guidance is superseded by this rule.

    Paperwork Reduction Act

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

    Regulatory Flexibility Act

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

    Executive Orders 12866, 13563, and 13771

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

    OMB has determined that this is a significant regulatory action under Executive Order 12866 because of the policy implications. This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in the rule's economic analysis. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published from FY 2004 Through Fiscal Year to Date.”

    Unfunded Mandates

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

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.039, CHAMPVA; 64.040, VHA Inpatient Medicine; 64.041, VHA Outpatient Specialty Care; 64.042, VHA Inpatient Surgery; 64.043, VHA Mental Health Residential; 64.044, VHA Home Care; 64.045, VHA Outpatient Ancillary Services; 64.046, VHA Inpatient Psychiatry; 64.047, VHA Primary Care; 64.048, VHA Mental Health Clinics; 64.049, VHA Community Living Center; and 64.050, VHA Diagnostic Care.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on February 6, 2018, for publication.

    Dated: May 8, 2018. Consuela Benjamin, Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, we are amending 38 CFR part 17 as follows:

    PART 17—MEDICAL 1. The authority citation for part 17 is amended by adding an entry for § 17.417 in numerical order to read in part as follows: Authority:

    38 U.S.C. 501, and as noted in specific sections.

    Section 17.417 also issued under 38 U.S.C. 1701 (note), 1709A, 1712A (note), 1722B, 7301, 7330A, 7401-7403, 7406 (note).

    2. Revise the undesignated center heading immediately after § 17.412 to read as follows: Authority of Health Care Providers to Practice in VA 3. Add § 17.417 to read as follows:
    § 17.417 Health care providers practicing via telehealth.

    (a) Definitions. The following definitions apply to this section.

    (1) Beneficiary. The term beneficiary means a veteran or any other individual receiving health care under title 38 of the United States Code.

    (2) Health care provider. The term health care provider means an individual who:

    (i) Is licensed, registered, or certified in a State to practice a health care specialty identified under 38 U.S.C. 7402(b);

    (ii) Is appointed to an occupation in the Veterans Health Administration that is listed in or authorized under 38 U.S.C. 7401(1) or (3);

    (iii) Maintains credentials (e.g., a license, registration, or certification) in accordance with the requirements of his or her health care specialty as identified under 38 U.S.C. 7402(b); and

    (iv) Is not a VA-contracted health care provider.

    (3) State. The term State means a State as defined in 38 U.S.C. 101(20), or a political subdivision of such a State.

    (4) Telehealth. The term telehealth means the use of electronic information or telecommunications technologies to support clinical health care, patient and professional health-related education, public health, and health administration.

    (b) Health care provider's practice via telehealth. (1) Health care providers may provide telehealth services, within their scope of practice, functional statement, and/or in accordance with privileges granted to them by VA, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located. Health care providers' practice is subject to the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy. This section only grants health care providers the ability to practice telehealth within the scope of their VA employment and does not otherwise grant health care providers additional authorities that go beyond what is required or authorized by Federal law and regulations or as defined in the laws and practice acts of the health care providers' State license, registration, or certification.

    (2) Situations where a health care provider's VA practice of telehealth may be inconsistent with a State law or State license, registration, or certification requirements related to telehealth include when:

    (i) The beneficiary and the health care provider are physically located in different States during the episode of care;

    (ii) The beneficiary is receiving services in a State other than the health care provider's State of licensure, registration, or certification;

    (iii) The health care provider is delivering services in a State other than the health care provider's State of licensure, registration, or certification;

    (iv) The health care provider is delivering services either on or outside VA property;

    (v) The beneficiary is receiving services while she or he is located either on or outside VA property;

    (vi) The beneficiary has or has not previously been assessed, in person, by the health care provider; or

    (vii) Other State requirements would prevent or impede the practice of health care providers delivering telehealth to VA beneficiaries.

    (c) Preemption of State law. To achieve important Federal interests, including, but not limited to, the ability to provide the same complete health care and hospital service to beneficiaries in all States under 38 U.S.C. 7301, this section preempts conflicting State laws relating to the practice of health care providers when such health care providers are practicing telehealth within the scope of their VA employment. Any State law, rule, regulation or requirement pursuant to such law, is without any force or effect on, and State governments have no legal authority to enforce them in relation to, this section or decisions made by VA under this section.

    [FR Doc. 2018-10114 Filed 5-10-18; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2017-0550; FRL-9977-93—Region 4] Air Plan Approval; KY; Fine Particulate Matter and Ozone NAAQS Revisions AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve portions of State Implementation Plan (SIP) revisions submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality, on December 21, 2016, and August 29, 2017, on behalf of the Louisville Metro Air Pollution Control District (District). The changes to the SIP that EPA is taking final action to approve are the portions of the submittals that modify the District's Ambient Air Quality Standards regulation, specifically changes to the District's air quality standards for fine particulate matter (PM2.5) and ozone to reflect the 2012 PM2.5 and 2015 ozone national ambient air quality standards (NAAQS). EPA has determined that the December 21, 2016, and August 29, 2017, SIP revisions are consistent with the Clean Air Act (CAA or Act). EPA will act on the other portions of the December 21, 2016, and August 29, 2017, submittals in a separate action.

    DATES:

    This rule will be effective June 11, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0550. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Sanchez can be reached via telephone at (404) 562-9644 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    Sections 108 and 109 of the CAA govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health and welfare. The CAA requires periodic review of the air quality criteria—the science upon which the standards are based—and the standards themselves. EPA's regulatory provisions that govern the NAAQS are found at 40 CFR 50—National Primary and Secondary Ambient Air Quality Standards.

    In a proposed rulemaking published on February 8, 2018 (83 FR 5593), EPA proposed to approve into the Kentucky SIP the portions of the revisions to the Jefferson County 1 air quality regulations addressing Regulation 3.01, Ambient Air Quality Standards, submitted by the Commonwealth on December 21, 2016, and August 29, 2017. Regulation 3.01 is amended 2 by updating air quality standards in Section 7 for PM2.5 and ozone to reflect the most recent NAAQS, removing the numbering of the subsections in Section 7, and making textual modifications to the footnotes. The details of Kentucky's submissions and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before March 12, 2018. EPA did not receive any relevant comments on the proposed action.

    1 In 2003, the City of Louisville and Jefferson County governments merged and the “Jefferson County Air Pollution Control District” was renamed the “Louisville Metro Air Pollution Control District.” However, each of the regulations in the Jefferson County portion of the Kentucky SIP still has the subheading “Air Pollution Control District of Jefferson County.” Thus, to be consistent with the terminology used in the SIP, EPA refers throughout this notice to regulations contained in the Jefferson County portion of the Kentucky SIP as the “Jefferson County” regulations.

    2 The District refers to the revised version of Regulation 3.01 in its December 21, 2016, submittal as “Version 6” and the revised version of Regulation 3.01 in its August 29, 2017, submittal as “Version 7.” Upon EPA's final approval of changes to Regulation 3.01, the text of the regulation in the SIP will reflect Version 7.

    II. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Jefferson County Regulation 3.01, Ambient Air Quality Standards, effective September 21, 2016, and February 15, 2017, which was revised to be consistent with the current NAAQS. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.3

    3 62 FR 27968 (May 22, 1997).

    III. Final Action

    EPA is taking final action to approve portions of the Commonwealth of Kentucky's SIP revisions submitted on December 21, 2016, and August 29, 2017, because these revisions are consistent with the CAA. The submissions revise the District's air quality standards for PM2.5 and ozone to reflect the 2012 PM2.5 and 2015 ozone NAAQS.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 10, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

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

    Dated: April 30, 2018. Onis “Trey” Glenn, III Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42.U.S.C. 7401 et seq.

    Subpart S—Kentucky 2. Section 52.920(c), Table 2 is amended under Reg 3—Ambient Air Quality Standards by revising the entry for “3.01 Ambient Air Quality Standards” to read as follows:
    § 52.920 Identification of plan.

    (c) * * *

    Table 2—EPA-Approved Jefferson County Regulations for Kentucky Reg Title/subject EPA approval date Federal Register notice District
  • effective
  • date
  • Explanation
    *         *         *         *         *         *         * Reg 3—Ambient Air Quality Standards 3.01 Ambient Air Quality Standards 5/11/2018 [Insert citation of publication] 02/15/17 *         *         *         *         *         *         *
    [FR Doc. 2018-09991 Filed 5-10-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2018-0170; FRL-9977-90-OAR] RIN 2060-AU02 Extension of Deadline for Action on the Section 126(b) Petition From New York AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    In this action, the Environmental Protection Agency (EPA) is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition dated March 12, 2018, submitted by the state of New York pursuant to section 126(b) of the Clean Air Act (CAA). The petition requests that the EPA make a finding that emissions from the collection of identified sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in New York State. Under section 307(d)(10) of the CAA, the EPA is authorized to grant a time extension for responding to a petition if the EPA determines that the extension is necessary to afford the public, and the Agency, adequate opportunity to carry out the purposes of the section 307(d) notice-and-comment rulemaking requirements. By this action, the EPA is making that determination. The EPA is, therefore, extending the deadline for acting on the petition from May 13, 2018, to no later than November 9, 2018.

    DATES:

    This final rule is effective on May 11, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Legal Standard

    This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of New York filed pursuant to CAA section 126(b). The EPA received the petition on March 14, 2018. The petition requests that the EPA make a finding under section 126(b) of the CAA that emissions from the collection of identified sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New York in violation of the provisions of section 110(a)(2)(D)(i) of the CAA, also known as the “good neighbor” provisions.

    Section 126(b) of the CAA authorizes states to petition the EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i) 1 by contributing significantly to nonattainment or interfering with maintenance problems in downwind states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. Under CAA section 126(c), any existing sources for which the EPA makes the requested finding must cease operations within 3 months of the finding, except that the source may continue to operate if it complies with emission limitations and compliance schedules (containing increments of progress) that the EPA may provide to bring about compliance with the applicable requirements as expeditiously as practical but no later than 3 years from the date of the finding.

    1 The text of CAA section 126 codified in the United States Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross reference is to CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (DC Cir. 2001).

    The CAA section 126(b) petition from the state of New York requests that the EPA make a finding that, within each of the identified nine upwind states, certain sources within the electric generating unit (EGU) and non-EGU sectors collectively emit air pollutants in violation of CAA section 110(a)(2)(D)(i) with respect to the 2008 8-hour ozone NAAQS, set at 0.075 parts per million (ppm), and the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.2

    2 On October 1, 2015, the EPA strengthened the ground-level ozone NAAQS, based on extensive scientific evidence about ozone's effects on public health and welfare. See 80 FR 65291 (October 26, 2015).

    Pursuant to CAA section 126(b), the EPA must make the finding requested in the petition or must deny the petition within 60 days of its receipt and after holding a public hearing. In addition to the public hearing provisions in CAA section 126(b), the EPA's action under CAA section 126 is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3)-(6). Section 307(d)(3) of the CAA provides minimum requirements for the contents of a proposed action subject to 307(d), including summarizing the methodology used in analyzing data on which the proposed action is based and the major legal interpretations and policy considerations underlying the proposal. CAA section 307(d)(6) requires that the final action be equally detailed and include an explanation of any major changes from proposal and a response to each significant comment received.

    With respect to the public hearing, the EPA must provide sufficient notice to the public. The Federal Register Act identifies 15 days' notice as the timeframe presumed to be sufficient notice to the public in advance of a public hearing. See 44 U.S.C. Section 1508. CAA section 307(d)(5) also provides specific direction for the conduct of public hearings, requiring at (iv), that “the Administrator shall keep the record of [the public hearing] open for thirty days after the completion of the proceeding to provide for an opportunity for submission of rebuttal and supplementary information.”

    In sum, the statutory requirements governing the EPA's action on a CAA section 126(b) petition necessitate the following procedural steps: Conducting technical, legal, and policy review of a submitted petition; developing an adequate proposal; providing sufficient notice of a public hearing; holding the public hearing; allowing sufficient time for notice and comment on both the proposal and public hearing record and developing responses to comments received and a final action on the petition.

    Section 307(d)(10) of the CAA provides for a time extension, under certain circumstances, for a rulemaking subject to section 307(d). Specifically, CAA section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the subsection.

    The EPA believes that the plain language of this provision allows the EPA to extend statutory deadlines for rulemakings enumerated in CAA section 307(d)(1) that are subject to deadlines with less than 6 months between a proposed and final action. The phrase “which requires promulgation less than six months after date of proposal” clearly specifies the type of deadline that may be extended, while the phrase “may be extended to not more than six months after date of proposal” limits the duration of an extension invoked under this provision. Notably, neither of these phrases, nor the provision in its entirety, impose any predicate steps on the EPA for invoking an extension other than determining that such an extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of CAA section 307(d).

    To the extent the terms of this provision are ambiguous, the EPA believes its interpretation of these terms is reasonable. The stated purpose of this provision is to provide both the public and the EPA adequate opportunity to effectuate the objectives of CAA section 307(d) regarding rulemaking. Interpreting CAA section 307(d)(10) to require the EPA to take some substantive predicate rulemaking step in a shorter timeframe to invoke the 6-month extension would contradict the stated purpose of the extension, as taking a predicate action within such shorter timeframe risks undermining the same reasons for invoking the extension. For example, were the EPA required to issue a proposed action on a CAA section 126(b) petition within 60 days of receipt to invoke the 6-month extension, the EPA may risk inadequately meeting the requirements of CAA section 307(d)(3) governing the minimum contents of such proposal depending on the technical complexity of the petition and other factors involved in developing an adequate proposal. Given that the purpose of an extension under CAA section 307(d)(10) is, in part, to provide the EPA with adequate opportunity to meet the requirements of section 307(d), it follows that the extension should be available for both the EPA's proposed and final action on a section 126(b) petition.

    Additionally, the EPA notes that CAA section 307(d)(1) does not speak to when the EPA must determine that an extension is necessary. The EPA acknowledges that the timeframes set out under CAA sections 126(b) and 307(d)(10) indicate Congress's clear intent that the EPA act quickly on a section 126 petition. Considering this intent, the EPA reasonably interprets CAA section 307(d)(10) to require the EPA to make the necessary determination in invoking a 6-month extension no later than the end of the original response time provided by section 126(b) for acting on a petition, which is 60-days from receipt. Such interpretation ensures that that the overall legal deadline for the EPA's action on a CAA section 126(b) petition does not exceed the aggregate eight-month deadline provided under the CAA (i.e., 60 days provided under section 126(b) plus 6 months provided under section 307(d)(10)). Finally, under the EPA's reasonable reading of CAA section 307(d)(10), this extension may be invoked only once.

    The EPA believes its reading of the extension provision under CAA section 307(d)(10) is consistent with Congress's dual intent of ensuring that the EPA acts expeditiously on a CAA section 126(b) petition and ensuring that the public has adequate opportunity to participate in the EPA's rulemaking process on such a petition. As described previously, the extension will allow the EPA to undertake the appropriate and necessary public participation processes, such as holding a public hearing on a proposed action on New York's petition.

    Based on either a plain reading of the language, or, in the alternative, a reasonable reading of the provision in the event of ambiguity, CAA section 307(d)(10), therefore, may be applied to CAA section 126(b) rulemakings because the 60-day time limit under CAA section 126(b) necessarily limits the period for promulgation of a final rule after proposal to less than 6 months.

    II. Final Rule A. Rule

    In accordance with CAA section 307(d)(10), the EPA is determining that the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of New York is not adequate time to allow the public, and the agency, the opportunity to carry out the purposes of CAA section 307(d). In making this determination, the EPA has met the necessary steps to invoke a 6-month extension for acting on New York's CAA section 126(b) petition. Specifically, the 60-day period is insufficient time for the EPA to complete the necessary technical review of the petition, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether emissions from the collection of identified EGU and non-EGU sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New York State. Moreover, the 60-day period is insufficient for the EPA to review and develop responses to any public comments on a proposed finding, or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. Particularly, the timeframes for notice of the public hearing and duration of comment period after the hearing itself would consume 45 days (presuming 15 days' notice of the hearing, and a 30-day comment period thereafter), leaving a total of 15 days of the 60-day period to complete the previously identified steps needed to review the petition, develop a proposal, review and develop responses to any public comments on a proposed finding or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. An appropriate schedule for action on the CAA section 126(b) petition must afford the EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment, and must provide adequate time for the public to comment and for the EPA to review and develop responses to those comments prior to issuing the final rule. With this extension, the deadline for the EPA to act on the petition is revised from May 13, 2018, to November 9, 2018. The EPA does not intend to grant itself any further extension under this provision if upon expiration of this extension the EPA has not yet acted on New York's section 126(b) petition.

    B. Notice and Comment Under the Administrative Procedure Act (APA)

    This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that, because of the limited time provided to the EPA to make a finding, the deadline for action on the CAA section 126(b) petition should be extended. Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice and comment would be impracticable because of the limited time provided for making this determination and would be contrary to the public interest because it would divert agency resources from the substantive review of the CAA section 126(b) petition.

    C. Effective Date Under the APA

    This action is effective on May 11, 2018. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the Federal Register if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. As discussed earlier, the EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. These reasons support an immediate effective date.

    III. Statutory and Executive Order Reviews A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and Budget because it simply extends the date for the EPA to act on a petition.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This good cause final action simply extends the date for the EPA to act on a petition and does not impose any new obligations or enforceable duties on any state, local or tribal governments or the private sector. It does not contain any recordkeeping or reporting requirements.

    D. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements because the agency has invoked the APA good cause exemption under 5 U.S.C. 553(b).

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This good cause final action simply extends the date for the EPA to act on a petition. Thus, Executive Order 13175 does not apply to this rule.

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the 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 subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This good cause final action simply extends the date for the EPA to act on a petition and does not have any impact on human health or the environment.

    L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section II.B of this document, including the basis for that finding.

    IV. Statutory Authority

    The statutory authority for this action is provided by sections 110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practices and procedures, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone.

    Dated: May 3, 2018. E. Scott Pruitt, Administrator.
    [FR Doc. 2018-09892 Filed 5-8-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 414 [CMS-1687-IFC] RIN 0938-AT21 Medicare Program; Durable Medical Equipment Fee Schedule Adjustments To Resume the Transitional 50/50 Blended Rates To Provide Relief in Rural Areas and Non-Contiguous Areas AGENCY:

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

    ACTION:

    Interim final rule with comment period.

    SUMMARY:

    This interim final rule with comment period makes technical amendments to the regulation to reflect the extension of the transition period from June 30, 2016 to December 31, 2016 that was mandated by the 21st Century Cures Act for phasing in fee schedule adjustments for certain durable medical equipment (DME) and enteral nutrition paid in areas not subject to the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP). In addition, this interim final rule with comment period amends the regulation to resume the transition period's blended fee schedule rates for items furnished in rural areas and non-contiguous areas (Alaska, Hawaii, and United States territories) not subject to the CBP from June 1, 2018 through December 31, 2018. This interim final rule with comment period also makes technical amendments to existing regulations for DMEPOS items and services to reflect the exclusion of infusion drugs used with DME from the DMEPOS CBP.

    DATES:

    Effective date: The provisions of this interim final rule with comment period are effective on June 1, 2018.

    Comment date: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 9, 2018.

    ADDRESSES:

    In commenting, please refer to file code CMS-1687-IFC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1687-IFC, P.O. Box 8010, Baltimore, MD 21244-8010.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1687-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Laurence Wilson, 410-786-4602 and [email protected].

    SUPPLEMENTARY INFORMATION:

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://regulations.gov. Follow the search instructions on that website to view public comments.

    Table of Contents I. Executive Summary A. Purpose B. Summary of the Major Provisions C. Summary of Costs and Benefits II. Durable Medical Equipment, Prosthetics, Orthotics Supplies (DMEPOS) Fee Schedule and Competitive Bidding Program (CBP) A. Background for Payment Revisions for Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) 1. Fee Schedule Payment Basis for Certain DMEPOS 2. DMEPOS CBP a. Payment Basis b. Geographic Areas Designated Under the DMEPOS CBPs B. Background on the Methodology for Adjusting Payment Amounts for Certain DMEPOS Using Information From DMEPOS CBPs C. Transition Period for Phase-In of Fee Schedule Adjustments 1. Statutory Mandate To Reconsider Fee Schedule Adjustments 2. Fee Schedule Adjustment Impact Monitoring Data 3. Restoring Transitional Blended Fee Schedule Rates in Rural Areas and Non-Contiguous Areas D. Fee Schedule Amounts for Accessories Used With Group 3 Complex Rehabilitative Power Wheelchairs E. Technical Changes To Conform the Regulation to Section 5004(b) of the 21st Century Cures Act (the Cures Act): Exclusion of DME Infusion Drugs Under CBPs III. Provisions of the Interim Final Rule With Comment Period A. Transition Period for Phase-In of Fee Schedule Adjustments B. Technical Changes To Conform the Regulation to Section 5004(b) of the Cures Act: Exclusion of DME Infusion Drugs Under CBPs IV. Waiver of Proposed Rulemaking V. Collection of Information Requirements VI. Response to Comments VII. Economic Analyses

    A. Regulatory Impact Analysis

    1. Introduction

    2. Statement of Need 3. Overall Impact B. Detailed Economic Analysis a. Effects on the Medicare Program and Beneficiaries b. Impact on Beneficiaries and Other Payers c. Alternatives Considered d. Regulatory Familiarization Costs C. Accounting Statement VIII. Regulatory Flexibility Act Analysis IX. Unfunded Mandates Reform Act Analysis X. Federalism Analysis XI. Reducing Regulation and Controlling Regulatory Costs XII. Congressional Review Act
    I. Executive Summary A. Purpose

    This interim final rule with comment period amends the regulation at 42 CFR 414.210(g)(9) to reflect the extension of the transition period for phasing in fee schedule adjustments for certain durable medical equipment (DME) and enteral nutrition paid in areas not subject to the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP) through December 31, 2016, mandated by section 16007(a) of the 21st Century Cures Act (the Cures Act) (Pub. L. 114-255). In addition, in light of information, the Centers for Medicare & Medicaid Services (CMS) has gathered in accordance with section 16008 of the Cures Act, this interim final rule with comment period resumes the transition period for phasing in adjusted fee schedule rates for DME items and services furnished in rural areas and non-contiguous areas (Alaska, Hawaii, and United States (U.S.) territories) not subject to the CBP from June 1, 2018 through December 31, 2018. It also makes technical amendments to existing regulations for DMEPOS items and services to reflect the exclusion of infusion drugs used with DME from the DMEPOS CBP, as required by section 5004(b) of the Cures Act.

    B. Summary of the Major Provisions

    Transition Period for Phase in of Adjustments to Fee Schedule Amounts: We are amending § 414.210(g)(9)(i) to reflect the extension of the transition period to December 31, 2016 for phasing in adjustments to the fee schedule amounts for certain items based on information from the DMEPOS CBP that was required by section 16007(a) of the Cures Act. In addition, we are adding § 414.210(g)(9)(iii) to resume the fee schedule adjustment transition period in rural areas and non-contiguous areas effective June 1, 2018, in light of concerns regarding the impact of the full fee schedule adjustments in rural and non-contiguous areas, so that the 50/50 blended fee schedule rates will apply for certain items and services furnished in rural and non-contiguous areas from June 1, 2018 through December 31, 2018. We are also amending § 414.210(g)(9)(ii) to reflect that for items and services furnished with dates of service from January 1, 2017 to May 31, 2018, and on or after January 1, 2019, the fee schedule amount for the area is equal to 100 percent of the adjusted payment amount. We are soliciting comments on the resumption of the transition period for the phase in of fee schedule adjustments.

    Technical Change Excluding DME Infusion Drugs From the DMEPOS CBP: Section 5004(b) of the Cures Act amends section 1847(a)(2)(A) of the Social Security Act (the Act) to exclude drugs and biologicals described in section 1842(o)(1)(D) of the Act from the DMEPOS CBP. We are making conforming changes to the regulation to reflect the exclusion of infusion drugs, described in section 1842(o)(1)(D) of Act, from items subject to the DMEPOS CBP.

    C. Summary of Costs and Benefits

    This interim final rule with comment period resumes the blended adjusted Medicare fee schedule amounts during the transition period for certain items and services that are furnished in rural and non-contiguous areas not subject to the CBP beginning June 1, 2018. It is estimated that these adjustments will cost $290 million in Medicare benefit payments and $70 million in Medicare beneficiary cost sharing for the period beginning June 1, 2018 and ending December 31, 2018.

    We are unable to quantify the benefits of this interim final rule with comment period at this time; however, the goal of this interim final rule is to preserve beneficiary access to DME items and services in rural and non-contiguous areas not subject to the CBP during a transition period in which CMS will continue to study the impact of the change in payment rates on access to items and services in these areas. The alternative to this interim final rule with comment period would have been to allow the full phase in of fee schedule adjustments based on competitive bidding prices to continue in all non-competitive bidding areas (non-CBAs). We believe that resuming the fee schedule adjustment transition period in rural and non-contiguous areas promotes stability in the DMEPOS market in these areas, and enables CMS to work with stakeholders to preserve beneficiary access to DMEPOS.

    II. Durable Medical Equipment, Prosthetics, Orthotics Supplies (DMEPOS) Fee Schedule and Competitive Bidding Program (CBP) A. Background for Payment Revisions for Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) 1. Fee Schedule Payment Basis for Certain DMEPOS

    Section 1834(a) of the Act governs payment for DME covered under Part B and under Part A for a home health agency and provides for the implementation of a fee schedule payment methodology for DME furnished on or after January 1, 1989. Sections 1834(a)(2) through (a)(7) of the Act set forth separate payment categories of DME and describe how the fee schedule for each of the following categories are established:

    • Inexpensive or other routinely purchased items.

    • Items requiring frequent and substantial servicing.

    • Customized items.

    • Oxygen and oxygen equipment.

    • Other covered items (other than DME).

    • Other items of DME (capped rental items).

    Section 1834(h) of the Act governs payment for prosthetic devices, prosthetics, and orthotics (P&O) and sets forth fee schedule payment rules for P&O. Effective for items furnished on or after January 1, 2002, payment is also made on a national fee schedule basis for parenteral and enteral nutrition (PEN) in accordance with the authority under section 1842(s) of the Act. The term “enteral nutrition” will be used throughout this document to describe enteral nutrients, supplies and equipment covered under the Part B benefit for prosthetic devices defined at section 1861(s)(8) of the Act. The Medicare allowed amount for DMEPOS items and services paid on a fee schedule basis is equal to the lower of the supplier's actual charge or the fee schedule amount. We refer readers to the November 6, 2014 calendar year (CY) 2015 ESRD PPS final rule entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Quality Incentive Program, and Durable Medical Equipment, Prosthetics, Orthotics, and Supplies” (79 FR 66223 through 66233) for additional background discussion about DMEPOS items subject to section 1834 of the Act, rules for calculating reasonable charges, and fee schedule payment methodologies for PEN and for DME prosthetic devices, prosthetics, orthotics, and surgical dressings.

    2. DMEPOS CBP a. Payment Basis

    The DMEPOS CBP is mandated by section 1847(a) of the Act and requires the Secretary of the Department of Health and Human Services (the Secretary) to establish and implement CBPs in competitive bidding areas (CBAs) throughout the U.S for contract award purposes for the furnishing of certain competitively priced DMEPOS items and services. Section 1847(a)(2) of the Act describes the items and services subject to the DMEPOS CBP:

    • Off-the-shelf (OTS) orthotics for which payment would otherwise be made under section 1834(h) of the Act.

    • Enteral nutrients, equipment and supplies described in section 1842(s)(2)(D) of the Act.

    • Certain DME and medical supplies, which are covered items (as defined in section 1834(a)(13) of the Act) for which payment would otherwise be made under section 1834(a) of the Act.

    The DME and medical supplies category includes items used in infusion and drugs (other than inhalation drugs) and supplies used in conjunction with DME, but excludes devices that have been classified in class III under the Federal Food, Drug, and Cosmetic Act and Group 3 or higher complex rehabilitative power wheelchairs and related accessories when furnished in connection with such wheelchairs. Although initially identified in section 1847(a)(2) of the Act, infusion drugs were excluded from the DMEPOS CBP by section 5004(b) of the Cures Act. Sections 1847(a) and (b) of the Act specify certain requirements and conditions for implementation of the Medicare DMEPOS CBP.

    Under the DMEPOS CBP, Medicare sets single payment amounts (SPAs) for selected DMEPOS items and services furnished to beneficiaries in CBAs based on the median of bids submitted by winning suppliers and accepted by Medicare for each individual item and service. For competitively bid items and services furnished in a CBA, the SPAs replace the Medicare allowed amounts established using the lower of the supplier's actual charge or the payment amount recognized under sections 1834(a)(2) through (7) of the Act. Section 1847(b)(5) of the Act provides that Medicare payment for competitively bid items and services is made on an assignment-related basis, and is equal to 80 percent of the applicable SPA, less any unmet Part B deductible described in section 1833(b) of the Act.

    B. Background on the Methodology for Adjusting Payment Amounts for Certain DMEPOS Using Information From DMEPOS CBPs

    For DME furnished on or after January 1, 2016, section 1834(a)(1)(F)(ii) of the Act requires the Secretary to use information on the payment determined under the DMEPOS CBP to adjust the fee schedule amounts for DME items and services furnished in all non-CBAs. Section 1834(a)(1)(F)(iii) of the Act requires the Secretary to continue to make these adjustments as additional covered items are phased in or information is updated as new CBP contracts are awarded. Similarly, sections 1842(s)(3)(B) and 1834(h)(1)(H)(ii) of the Act authorize the Secretary to use payment information from the DMEPOS CBP to adjust the fee schedule amounts for enteral nutrition and OTS orthotics, respectively, furnished in all non-CBAs. Section 1834(a)(1)(G) of the Act requires that in promulgating the methodology used in making these adjustments to the fee schedule amounts, the Secretary consider the costs of items and services in areas in which the adjustments would be applied compared to the payment rates for such items and services in the CBAs.

    On February 26, 2014, we published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register entitled, “Medicare Program; Methodology for Adjusting Payment Amounts for Certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Using Information from Competitive Bidding Programs” (79 FR 10754). In that ANPRM, we solicited stakeholder input on several factors including whether the costs of furnishing various DMEPOS items and services vary based on the geographic area in which they are furnished in relation to developing a payment methodology to adjust DMEPOS fee schedule amounts or other payment amounts in non-CBAs based on DMEPOS competitive bidding payment information.

    We received approximately 185 comments from suppliers, manufacturers, professional, state and national trade associations, physicians, physical therapists, beneficiaries and their caregivers, and one state government office. Commenters generally stated that costs do vary by geographic region and that costs in rural and non-contiguous areas of the U.S. (Alaska, Hawaii, Puerto Rico, etc.) are significantly higher than costs in urban areas and contiguous areas of the U.S. One commenter representing many manufacturers and suppliers listed several key variables or factors that influence the cost of furnishing items and services in different areas that should be considered. This commenter stated that information on all bids submitted under the CBP should be considered and not just the bids of winning suppliers. Some commenters expressed concern that the SPAs assume a significant increase in volume to offset lower payment amounts. Commenters also recommended phasing in the adjusted fee schedule amounts, allowing for adjustments in fees if access issues arise, and annual inflation updates to adjusted fee schedule amounts.

    On July 11, 2014, we published the CY 2015 ESRD PPS proposed rule in the Federal Register entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Quality Incentive Program, and Durable Medical Equipment, Prosthetics, Orthotics, and Supplies;” (79 FR 40208) as required by section 1834(a)(1)(G) of the Act, to establish methodologies for using information from the CBP to adjust the fee schedule amounts for items and services furnished in non-CBAs in accordance with sections 1834(a)(1)(F)(ii) and 1834(h)(1)(H)(ii) of the Act. We also proposed making adjustments to the payment amounts for enteral nutrition as authorized by section 1842(s)(3)(B) of the Act.

    We received 89 public comments on the proposed rule, including comments from patient organizations, patients, manufacturers, health care systems, and DME suppliers. We made changes to the proposed methodologies based on these comments and finalized a method for paying higher amounts for certain items furnished in areas defined as rural areas. In addition, we provided a 6-month fee schedule adjustment phase in period from January through June of 2016, during which the fee schedule amounts would be based on 50 percent of the unadjusted fees and 50 percent of the adjusted fees to allow time for suppliers to adjust to the new payment rates and to monitor the impact of the change in payment rates on access to items and services. On November 6, 2014, we published the CY 2015 ESRD PPS final rule (79 FR 66223 through 66265) to finalize the methodologies at § 414.210(g) based on public comments received on the CY 2015 ESRD PPS proposed rule (79 FR 40208). A summary of the methodologies are provided below.

    In order to delineate geographic areas to which adjusted fee schedule amounts for certain DMEPOS items are applied, we set forth a methodology to identify geographic areas using zip codes into 3 categories of rural, non-rural, and non-contiguous. We promulgated § 414.202 to define a rural area to mean, for the purpose of implementing § 414.210(g), a geographic area represented by a postal zip code if at least 50 percent of the total geographic area of the area included in the zip code is estimated to be outside any Metropolitan Statistical Area (MSA) (79 FR 66228). A rural area also includes a geographic area represented by a postal zip code that is a low population density area excluded from a CBA in accordance with section 1847(a)(3)(A) of the Act at the time the rules in § 414.210(g) are applied.

    In accordance with § 414.210(g)(1)(i) through (v), CMS first determines regional adjustments to the fee schedule amounts using the 8 regions of the Bureau of Economic Analysis. Also, the regional prices are determined and limited by a national ceiling (110 percent of the average of regional prices) and floor (90 percent of the average of regional prices). In addition, adjusted fee schedules for non-contiguous areas are based on the higher of the average of the SPAs for CBAs in areas outside the contiguous U.S. or the national ceiling amount in accordance with our regulations at § 414.210(g)(2)(i) through (ii). Also, § 414.210(g)(3) specifies adjustments for low volume items (that is, bid in only 10 or fewer competitive bidding programs) are based on 110 percent of the average of the SPAs. In addition, adjustments for items and services included in CBPs no longer in effect is set forth at § 414.210(g)(4). In cases where the SPAs from the DMEPOS CBP that are no longer in effect are used to adjust fee schedule amounts, § 414.210(g)(4) provides that the SPAs be updated by an inflation adjustment factor for each year from the last year when the SPAs were in effect to the year in which the adjustment would go into effect (for example, 2016) and for each subsequent year (for example, 2017 and 2018). Furthermore, § 414.210(g)(5) establishes adjustments for accessories used with different types of base equipment in situations where a Healthcare Common Procedure Coding System (HCPCS) code describing an item used with different types of base equipment is included in more than one product category in a CBA under the CBP; a weighted average of the SPAs for the code is computed for each CBA prior to applying the other payment adjustment methodologies in § 414.210(g). Finally, in accordance with § 414.210(g)(6), adjustments are made to the SPAs for certain items due to price inversions under the DMEPOS CBP (for example, the SPA for a walker without wheels is higher than the SPA for a walker with wheels) before the SPAs are used to adjust fee schedule amounts. For groupings of similar items (for example, walkers) where price inversions have occurred, the SPAs for the items in the grouping are all adjusted to equal the weighted average of the SPAs for all of the items in the grouping. Price inversions are situations where the higher weighted and higher priced item at the time of competition becomes the lower priced item in the CBP following the competition. For a discussion regarding adjustments to SPAs to address price inversions, see the CY 2017 ESRD PPS proposed rule published in the Federal Register on June 30, 2016 entitled “Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment, and the Comprehensive End-Stage Renal Disease Care Model” (81 FR 42851).

    In order to update the adjusted fee schedule amounts based on new competitions and provide for a transitional phase-in period of the fee schedule adjustments, we established § 414.210(g)(8) and (g)(9) in the CY 2015 ESRD PPS final rule (79 FR 66263). In § 414.210(g)(8), the adjusted fee schedule amounts are updated when an SPA for an item or service is updated following one or more new DMEPOS CBP competitions and as other items are added to DMEPOS CBP. The fee schedule amounts that are adjusted using SPAs are not subject to the annual DMEPOS covered item update and are only updated when SPAs from the DMEPOS CBP are updated. Updates to the SPAs may occur as contracts are recompeted. Section 414.210(g)(9)(i), specifies that the fee schedule adjustments were phased in for items and services furnished with dates of service from January 1, 2016 through June 30, 2016, so that each fee schedule amount was adjusted based on a blend of 50 percent of the fee schedule amount if not adjusted based on information from the CBP, and 50 percent of the adjusted fee schedule amount. Section 414.210(g)(9)(ii) specifies that for items and services furnished with dates of service on or after July 1, 2016, the fee schedule amounts would be equal to 100 percent of the adjusted fee schedule amounts. Commenters recommended CMS phase in the fee schedule adjustments to give suppliers time to adjust to the change in payment amounts (79 FR 66228). Some commenters recommended a 4-year phase-in of the adjusted fees. CMS agreed that phasing in the adjustments to the fee schedule amounts would allow time for suppliers to adjust to the new payment rates and would allow time to monitor the impact of the change in payment rates on access to items and services. We decided 6 months was enough time to monitor access and health outcomes to determine if the fee schedule adjustments created a negative impact on access to items and services. Therefore, we finalized a 6-month phase-in period of the blended rates (79 FR 66228 through 66229).

    We finalized the 6-month transition period from January 1 through June 30, 2016 in the CY 2015 ESRD PPS final rule (79 FR 66223) that was published in the Federal Register on November 6, 2014. The Cures Act was enacted on December 13, 2016, and section 16007(a) of the Cures Act extended the transition period for the phase-in of fee schedule adjustments at § 414.210(g)(9)(i) by 6 additional months so that fee schedule amounts were based on a blend of 50 percent of the adjusted fee schedule amount and 50 percent of the unadjusted fee schedule amount until December 31, 2016 (with full implementation of the fee schedule adjustments applying to items and services furnished with dates of service on or after January 1, 2017).

    C. Transition Period for Phase-In of Fee Schedule Adjustments

    We have determined that the transitional period for the phase-in of adjustments to fee schedule amounts should be resumed in non-CBA rural and non-contiguous areas in order to ensure access to necessary items and services in these areas. This interim final rule with comment period amends § 414.210(g)(9) to change the end date for the initial transition period for the phase-in of adjustments to fee schedule amounts for certain items based on information from the DMEPOS CBP from June 30, 2016 to December 31, 2016, to reflect the extension that was mandated by section 16007(a) of the Cures Act. This interim final rule with comment period also amends § 414.210(g)(9) to resume the transition period for the phase-in of adjustments to fee schedule amounts for certain items furnished in non-CBA rural and non-contiguous areas from June 1, 2018 through December 31, 2018, for the reasons discussed in this preamble.

    1. Statutory Mandate To Reconsider Fee Schedule Adjustments

    After we established the fee schedule adjustment methodology under § 414.210(g), Congress amended section 1834(a)(1)(G) of the Act to require that CMS take certain steps and factors into consideration regarding the fee schedule adjustments for items and services furnished on or after January 1, 2019, to ensure that the rates take into account certain aspects of providing services in non-CBAs. Specifically, section 16008 of the Cures Act amended section 1834(a)(1)(G) of the Act to require in the case of items and services furnished on or after January 1, 2019, that in making any adjustments to the fee schedule amounts in accordance with sections 1834(a)(1)(F)(ii) and (iii) of the Act, the Secretary shall: (1) Solicit and take into account stakeholder input; and (2) take into account the highest bid by a winning supplier in a CBA and a comparison of each of the following factors with respect to non-CBAs and CBAs:

    • The average travel distance and cost associated with furnishing items and services in the area.

    • The average volume of items and services furnished by suppliers in the area.

    • The number of suppliers in the area.

    On March 23, 2017, CMS hosted a national provider call to solicit stakeholder input regarding adjustments to fee schedule amounts using information from the DMEPOS CBP. The national provider call was announced on March 3, 2017, and we requested written comments by April 6, 2017. We received 125 written comments from stakeholders. More than 330 participants called into our national provider call, with 23 participants providing oral comments during the call. In general, the commenters were mostly suppliers, but also included manufacturers, trade organizations, and healthcare providers such as physical and occupational therapists. These stakeholders expressed concerns that the level of the adjusted payment amounts constrains suppliers from furnishing items and services to rural areas. Stakeholders requested an increase to the adjusted payment amounts for these areas. The written comments generally echoed the oral comments from the call held on March 23, 2017, whereby stakeholders claimed that the adjusted fees are not sufficient to cover the costs of furnishing items and services in rural and non-contiguous areas and that this is having an impact on access to items and services in these areas.

    The oral and written comments are organized into the following categories:

    Inadequacy of Adjusted Fee Schedule Amounts: Commenters claim the adjusted fee schedule amounts do not cover the cost of furnishing the items and are not sustainable. Many commenters opposed the current adjusted payment amounts as insufficient to sustain the current cost of doing business. Some commenters stated that current reimbursement levels are below the cost of doing business. Many commenters stated they were billing non-assigned for items, or were considering billing non-assigned in the future.

    Travel Distance: Commenters claim the average travel distance and cost for suppliers serving rural areas are greater than the average travel distance and cost for suppliers serving CBAs. Many commenters described farther travel distances in rural areas than in non-rural areas. For the purpose of implementing the fee schedule adjustment methodologies at § 414.210(g), the term “rural area” is defined at § 414.202 and essentially includes any areas outside an MSA or excluded from a CBA.

    Volume of Services: Many commenters asserted that the average volume of services furnished by suppliers, when serving non-CBAs, are lower than the average volume of services furnished by suppliers, when serving CBAs. Many commenters stated that they do not get the same increase in volume that suppliers who obtain competitive bidding contracts get, which does not allow them to have economies of scale and obtain products at lower costs. Claims data for 2016 and 2017 indicates that the average volume of allowed services for suppliers serving CBAs is significantly higher than the average volume of allowed services for suppliers serving non-CBAs, particularly rural and non-contiguous areas.

    Beneficiary Access: Many commenters stated that the adjusted fees have reduced the number of suppliers in the area, and that this has caused or will cause beneficiary access issues. Some commenters explained that they were the only supplier in the area. Claims data indicates that the number of supplier locations furnishing items and services subject to the fee schedule adjustments changed from 13,535 in 2015 to 12,617 in 2016.

    Adverse Beneficiary Health Outcomes: Commenters stated that beneficiaries are going without items and this is causing adverse health outcomes. Commenters stated that hospital readmissions and lengths of stay, falls, and fractures are increasing as a result of the fee schedule reductions.

    Delivery Expenses: A few commenters provided an estimate of how much their delivery expenses cost, their estimated service radius, and the average distance traveled. Several commenters stated that they have reduced the size of their service area due to the level of reimbursement that they are receiving.

    Costs in Rural and Non-Contiguous Areas: Many commenters stated rural areas have unique costs, costs that are higher than non-rural areas. Similar to comments received on our CY 2015 ESRD PPS proposed rule (79 FR 40275 through 40315) and discussed in the CY 2015 ESRD PPS final rule (79 FR 66223 through 66265), some commenters stated that a 10 percent payment increase in rural areas is not enough to cover costs in rural areas. One commenter stated that non-contiguous areas, such as Alaska and Hawaii, face unique and greater costs due to higher shipping costs, a smaller amount of suppliers, and more logistical challenges related to delivery. Some commenters stated specific costs, as well as data sources, that CMS should take into account when adjusting fees in non-CBAs. These included the following: Geographic wage index factors, gas, taxes, employee wages and benefits, wear and tear of vehicle, average per capita income, training, delivery, set up, historical Medicare home placement volume, proximity to nearby CBAs, employing a respiratory therapist, electricity charges, freight charges, 24/7 service, documentation requirements, average per patient cost, licensing accreditation, surety bonds, audits, population density, miles and time between points of service, regulatory costs, vehicle insurance, and liability insurance.

    Two commenters pointed to the Ambulance Fee Schedule and one commenter pointed to the Bureau of Labor Statistic Consumer Expenditure Survey as evidence that health care costs in rural areas are higher than in urban areas. Another commenter mentioned the Internal Revenue Service Mileage Rate, the minimum wage, AAA Gallon of Gasoline prices, and the price of a loaf of white bread, to highlight how the prices of such items have increased over the years, while reimbursement for DME has not.

    Using the Highest Winning Bids for the Adjusted Fee Schedule Methodology: Five commenters suggested that the adjusted fee schedule amounts be based on maximum winning bids in CBAs rather than the median of winning bids in CBAs. One commenter suggested that the maximum winning bids should be the starting point for the adjustments and that additional payment should be added on to these amounts to pay for the higher costs of furnishing items and services in non-CBAs.

    One of the factors CMS must consider when making fee schedule adjustments for items and services furnished on or after January 1, 2019, in accordance with section 16008 of the Cures Act, is the average volume of items and services furnished by suppliers in an area. A supplier recoups costs through the payments made for the items they furnish. In the case of overhead costs such as rent, utilities, salaries, and employee benefits, the more items a supplier furnishes, the more the supplier is able to recoup these overhead costs. Data for items furnished in 2016 and 2017 shows that the average volume of items furnished by suppliers in CBAs exceeds the average volume of items furnished by suppliers in rural and non-contiguous areas. The fact that the volume of items furnished per supplier in rural and non-contiguous areas is less than the volume furnished in CBAs indicates that the cost per item in rural and non-contiguous areas may be higher than the cost per item in CBAs. Because there are fewer suppliers in CBAs furnishing a higher volume of items and services, these suppliers likely have lower costs per item because they can make up their overhead costs over more items. In addition, the higher the volume of items a supplier furnishes, the larger the volume purchasing discount is likely to be when purchasing equipment from a manufacturer. This supports stakeholder input that the suppliers in rural and non-contiguous areas have an average volume of business less than that of their counterparts in CBAs, and that this difference may make it more difficult for suppliers in rural and non-contiguous areas to meet their expenses.

    In addition, the adjusted fee schedule amounts for stationary oxygen equipment in non-contiguous, non-CBAs are lower than the SPA for stationary oxygen equipment in the Honolulu, Hawaii, CBA and the adjusted fee schedule amounts for stationary oxygen equipment in some rural areas are lower than the SPAs in CBAs within the same state. This is due to the combination of the fee schedule adjustments and the budget neutrality offset that CMS applies to stationary oxygen equipment and contents due to the separate oxygen class for oxygen generating portable equipment (OGPE). In 2006, CMS established a separate payment class for OGPE (which are portable concentrators with transfilling equipment), through notice and comment rulemaking (71 FR 65884). The authority to add this payment class, located at section 1834(a)(9)(D) of the Act, only allows CMS to establish new classes of oxygen and oxygen equipment if such classes are budget neutral, which means that the establishment of new oxygen payment classes does not result in oxygen and oxygen equipment expenditures for any year that are more or less than the expenditures that would have been made had the new classes not been established. In accordance with § 414.226(c)(6), CMS reduces the fee schedule amounts for stationary oxygen equipment in non-CBAs in order to make the payment classes for oxygen and oxygen equipment budget neutral as required by section 1834(a)(9)(D) of the Act. Due to the combination of the fee schedule adjustment and the budget neutrality offset, the adjusted fee schedule amounts for stationary oxygen equipment in non-contiguous non-CBAs and some rural areas are lower than the SPAs in Honolulu, Hawaii, and CBAs within the same state, respectively. This is significant because the current methodology at 42 CFR 414.210(g) attempts to ensure that the adjusted fee schedule amounts for items and services furnished in rural areas within a state are no lower than the adjusted fee schedule amounts for non-rural areas within the same state. CBAs are areas where payment for certain DME items and services is based on SPAs established under the CBP rather than adjusted fee schedule amounts. It is worth noting that CBAs tend to have higher population densities and typically correspond with urban census tracts.

    The establishment of the payment class for OGPE resulted in an increase in Medicare payments for these items and services. Therefore, each year, a budget neutrality offset is applied to the monthly payment amount for stationary oxygen equipment to ensure that the OGPE payment class does not result in oxygen and oxygen equipment expenditures that would be more or less than the expenditures that would have been made without the OGPE class. As more beneficiaries shift to using OGPE, the budget neutrality offset that is applied to the stationary oxygen equipment payment rate increases. The budget neutrality requirement does not apply under the DMEPOS CBP because under section 1847(a) of the Act, the payment amounts for oxygen and oxygen equipment are established based on bids submitted and accepted by winning suppliers under the program, and not based on the payment rules under section 1834(a) of the Act. The budget neutrality offset has resulted in payment amounts for stationary oxygen equipment in CBAs being higher than the adjusted fee schedule amounts in some cases. Restoring the blended fee schedule rates paid in rural and non-contiguous non-CBAs during the transition period would result in fee schedule amounts for oxygen and oxygen equipment in these areas being higher than the SPAs paid in all of the CBAs. Therefore, payment at the blended rates would avoid situations where payment for furnishing oxygen in a rural or non-contiguous, non-CBA is lower than payment for furnishing oxygen in a CBA.

    2. Fee Schedule Adjustment Impact Monitoring Data

    Regarding adverse health beneficiary outcomes, we have been monitoring claims data from non-CBAs, some of which pre-dates the implementation of the fully adjusted fee schedule amounts. To the extent that this data pre-dates the implementation of the fully adjusted fees, it is less likely to demonstrate any adverse impacts. The data does not show any observable trends indicating an increase in adverse health outcomes such as mortality, hospital and nursing home admission rates, monthly hospital and nursing home days, physician visit rates, or emergency room visits in 2016 or 2017 compared to 2015 in the non-CBAs, overall. In addition, we have been monitoring data on the rate of assignment in non-CBAs, which reflects when suppliers are accepting Medicare payment as payment in full and not balance billing beneficiaries for the cost of the DME. More importantly, the monitoring data does not indicate the extent to which suppliers that have not already exited the Medicare program are struggling to maintain current service levels or individual cases where access or health outcomes may have been affected. We are soliciting comments on ways to improve our fee schedule adjustment impact monitoring data.

    3. Resuming Transitional Blended Fee Schedule Rates in Rural and Non-Contiguous Areas

    The monitoring data described in section II.C.2 of this interim final rule with comment is retrospective claims data for payment of items already furnished. Stakeholders state that this data is of limited utility in assessing the development of adverse trends in access to items and services, or that the health of beneficiaries is being negatively affected by the fully adjusted fee schedule amounts. Claims data does not capture all of the challenges experienced by beneficiaries and suppliers, such as suppliers going out of business or timely delivery of items. Further, this claims data is also limited to a retrospective view to address potential future problems. In other words, it does not serve as a tool that can guard against the negative outcomes raised by stakeholders, as discussed elsewhere in the preamble. In fact, the Government Accountability Office (GAO) acknowledged challenges associated with the monitoring of DMEPOS and the CBP in its review of the first year of the DMEPOS CBP Round 1 Rebid, stating that the monitoring methods used by CMS in assessing the impact of competitive bidding did not directly show whether beneficiaries received the DME they needed on time.1 We do note, however, that the Office of Inspector General (OIG) has found that the implementation of Round 2 Competitive Bidding did not appear to disrupt beneficiary access to CPAP/RAD equipment.2

    1 U.S. Government Accountability Office. Medicare: Review of the First Year of CMS's Durable Medical Equipment Competitive Bidding Program's Round 1 Rebid, May 2012 (GAO-12-693), http://www.gao.gov/assets/600/590712.pdf (accessed 4 November 2015), page 42.

    2 Office of Inspector General. U.S. Department of Health & Human Services. Round 2 Competitive Bidding for CPAP/RAD: Disrupted Access Unlikely for Devices, Inconclusive for Supplies, June 2017 (OEI-01-15-00040).

    Approximately 85 percent of the DME industry are considered small businesses according to the Small Business Administration's size standards. According to Medicare claims data, the number of supplier locations furnishing DME items and services subject to the fee schedule adjustments decreased by 22 percent from 2013 to 2016. In 2016 alone there was a 7 percent decline from the previous year in the number of DME supplier locations furnishing items and services subject to the fee schedule adjustments. The magnitude of this decline in DME supplier locations, from 13,535 (2015) to 12,617 (2016),3 indicates that the number of DME supplier locations serving these areas continues to decline. Based on partial year data, there was a further reduction in supplier locations of 9 percent in 2017.4

    3 Medicare claims process through November 3, 2017

    4 There were 12,537 supplier locations furnishing items subject to the fee reductions in 2016, based on claims processed through April 6, 2017, and 11,384 supplier locations furnishing items subject to the fee reductions in 2017, based on claims processed through April 7, 2018.

    There are additional factors that section 16008 of the Cures Act requires us to take into account in making adjustments to the fee schedule amounts for items and services furnished beginning in 2019. We know that the average volume of items and services furnished per supplier in non-CBAs is significantly less than the average volume of items and services furnished per supplier in CBAs. Additionally, the number of suppliers in general has been steadily decreasing over time and this trend is not abating. As the number of suppliers serving non-CBAs continues to decline, the volume of items and services furnished by the remaining suppliers is increasing. However, we do not know if the suppliers that remain will have the financial ability to continue expanding their businesses to continue to satisfy market demand. We also do not know if large suppliers serving both urban and rural areas will continue to serve the rural areas representing a much smaller percentage of their business than urban areas. We specifically address the stakeholder comments and concerns below.

    Based on the stakeholder comments and decrease in the number of supplier locations, there is an immediate need to resume the transitional, blended fee schedule amounts in rural and non-contiguous areas. Resuming these transitional blended rates will preserve beneficiary access to needed DME items and services in a contracting supplier marketplace, while allowing CMS to address the adequacy of the fee schedule adjustment methodology, as required by section 16008 of the Cures Act. We recognize that reduced access to DME may put beneficiaries at risk of poor health outcomes or increase the length of hospital stays.

    Suppliers have noted that they have struggled under the fully adjusted fee schedule and that they do not believe they can continue to furnish the items and services at the current rates. Stakeholders overwhelmingly have stated that the fully adjusted fee schedule amounts are not sufficient to cover supplier costs for furnishing items and services in rural and non-contiguous areas and the number of suppliers furnishing items in these areas continues to decline. Further, section 16008 of the Cures Act mandates that we consider stakeholder input and additional information in making fee schedule adjustments based on information from the DMEPOS CBP for items and services furnished beginning in 2019. The information we have collected, however, includes input from many stakeholders indicating that the fully adjusted fee schedule amounts are too low and that this is having an adverse impact on beneficiary access to items and services, particularly in rural and non-contiguous areas. Given the strong stakeholder concern about the continued viability of many DMEPOS suppliers, coupled with the Cures Act mandate to consider additional information material to setting fee schedule adjustments, it would be unwise to continue with the fully adjusted fee schedule rates in the vulnerable rural and non-contiguous areas for 7 months. Any adverse impacts on beneficiary health outcomes, or on small businesses exiting the market, could be irreversible. It is in the best interest of the beneficiaries living in these areas to maintain a blend of the historic unadjusted fee schedule amounts and fee schedule amounts adjusted using SPAs established under the DMEPOS CBP to prevent suppliers that might be on the verge of closing from closing, as they may be the only option for beneficiaries in these areas. While our systematic monitoring in these areas has not shown problematic trends to this point, that monitoring by its nature looks backward and reflects other limitations, as discussed in section II.C.2 of this interim final rule with comment. Given the rapid changes in health care delivery that may disproportionately impact rural and more isolated geographic areas, there is concern that the continued decline of the fees and the number of suppliers in such areas may impact beneficiary access to items and services. These adjustments would maintain a balance between the higher historic rates and rates adjusted based on bidding in larger metropolitan areas where suppliers furnish a much larger volume of DMEPOS items and services and support continued access to services. In order to safeguard beneficiaries' access to necessary items and services, we should immediately resume the transition period for the phase-in of fee schedule adjustments in these areas that was in place during CY 2016. Therefore, we are revising § 414.210(g)(9) to resume the fee schedule adjustment transition rates for items and services furnished in rural and non-contiguous areas from June 1, 2018 through December 31, 2018, while we further analyze this issue. During this extended transition period, CMS will take into account the information required by section 16008 of the Cures Act in determining whether changes to the methodology for adjusting fee schedule amounts for items furnished on or after January 1, 2019, are necessary.

    D. Fee Schedule Amounts for Accessories Used With Group 3 Complex Rehabilitative Power Wheelchairs

    In the CY 2010 final rule (75 FR 73390) published in the Federal Register on November 29, 2010, entitled “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011,” we reviewed the HCPCS coding for power wheelchairs that were updated in 2006 in response to the release of the Power Mobility Device Coding Guidelines published by the DME Medicare Administrative Contractors. Codes were added to the HCPCS for various types of power wheelchair bases, differentiated based on level of performance, with group 1 being the lowest and group 3 being the highest level covered by Medicare, and the ability to accommodate complex rehabilitative power options such as power seating systems or a specialty interface, such as sip and puff controls. Codes were established at both the group 2 and 3 performance level for “complex rehabilitative” power wheelchair bases.

    Section 154(a)(1)(B) of the Medicare Improvements for Patients and Providers Act (MIPPA) of 2008 (Pub. L. 110-275), amended section 1847(a)(2)(A) of the Act to exclude group 3 or higher complex rehabilitative power wheelchairs and related accessories when furnished in connection with such wheelchairs from competitive bidding. At the same time, section 154(a)(1)(A) of MIPPA amended section 1847(a)(1) of the Act to add paragraph (D) which terminated Round 1 and required rebidding Round 1 for the same items and services and the same areas with some changes. Since we included group 2 complex rehabilitative power wheelchairs and related accessories (including seating systems) and seat and back cushions, under Round 1 of the DMEPOS CBP, we were required to include those wheelchairs and accessories in the Round 1 Rebid of the DMEPOS CBP. The accessories (including seating systems) and cushions furnished in connection with group 2 complex rehabilitative power wheelchairs (HCPCS codes K0835 through K0843) are the same items furnished in connection with group 3 complex rehabilitative power wheelchairs (HCPCS codes K0848 through K0864).

    Single payment amounts were implemented on January 1, 2011, in the nine Round 1 Rebid areas, for group 1 and 2 standard power wheelchair bases, group 2 complex rehabilitative power wheelchair bases, and the interchangeable accessories used with the different bases (for example, batteries used with all power wheelchairs and power seating systems used with both group 2 and 3 complex rehabilitative power wheelchairs). As noted above, these items are competitively bid under section 1847 of the Act, and we did not competitively bid group 3 wheelchairs or use competitively bid prices for related accessories when used with a group 3 wheelchair in the Round 1 Rebid of the DMEPOS CBP.

    Section 1834(a)(1)(F)(ii) of the Act mandates the adjustment of fee schedule amounts for items that are furnished in non-CBAs based on information from the CBPs beginning on January 1, 2016. We established a policy under § 414.210(g)(5) for adjusting the fee schedule amounts for accessories used with different types of base equipment that are included in one or more product categories under competitive bidding in the CY 2015 ESRD PPS final rule (79 FR 66223 through 66233). In that rulemaking, we stated the Agency's belief that it would be unnecessarily burdensome to have different fee schedule amounts for the same item (HCPCS code) when it is used with similar, but different types of base equipment, and that the costs of furnishing the accessory should not vary significantly based on the type of base equipment it is used with (79 FR 66230). We finalized § 414.210(g)(5) to adjust the fee schedule amount for a HCPCS code for an accessory for use with all types of base equipment using pricing information for the item when it is included in one or more product categories under competitive bidding. The adjusted fee schedule amounts for these common accessories became effective on January 1, 2016.

    Section 2 of the Patient Access and Medicare Protection Act of 2015 (Pub. L. 114-115) delayed the adjustments to the fee schedule amounts for accessories (including seating systems) and seat and back cushions when furnished in connection with group 3 complex rehabilitative power wheelchairs until January 1, 2017. Subsequently, section 16005 of the Cures Act extended this delay in the DME fee schedule adjustments based on competitive bidding information for certain wheelchair accessories used with group 3 complex rehabilitative power wheelchairs from January 1, 2017 until July 1, 2017. Since the Congress has acted twice to address the issue, these legislative actions highlight a general concern regarding access to this specialized equipment by the vulnerable patient population that depends on this equipment and technology.

    Complex rehabilitative power wheelchairs are used by patients needing functionality, such as head or sip and puff controls, power tilt or recline seating, or ventilators mounted to the wheelchair, which are not available on standard power wheelchairs. The ability and performance of the wheelchair in meeting the patients' specialized needs is critical, and most patients use wheelchair bases with group 3 level performance to meet these needs. Far fewer use group 2 wheelchair bases, which are the bases that the accessories were included with under Round 1 of the DMEPOS CBP.

    Section 1847(a)(2)(A) of the Act provides the categories of items that are subject to the CBP and excludes certain complex rehabilitative power wheelchairs recognized by the Secretary as classified within group 3 or higher (and related accessories when furnished in connection with such wheelchairs). This statutory exclusion should inform our implementation of section 1834(a)(1)(F) of the Act such that the fee schedule amounts for wheelchair accessories and back and seat cushions used in conjunction with group 3 complex rehabilitative power wheelchairs should not be adjusted based on the methodologies set forth in § 414.210(g)(5). Therefore, as we have announced in guidance available on the CMS website in June (located at: https://www.cms.gov/Center/Provider-Type/Durable-Medical-Equipment-DME-Center.html) the fee schedule amounts for wheelchair accessories and back and seat cushions used in conjunction with group 3 power wheelchairs continue to be based on the unadjusted fee schedule amounts updated by the covered item update specified in section 1834(a)(14) of the Act. The fee schedule amounts for all other accessories used with different types of base equipment continue to be calculated in accordance with the adjustment methodology set forth in § 414.210(g)(5) of our regulations.

    E. Technical Changes To Conform the Regulations to Section 5004(b) of the Cures Act: Exclusion of DME Infusion Drugs Under CBPs

    Section 5004(b) of the Cures Act amends section 1847(a)(2)(A) of the Act to exclude drugs and biologicals described in section 1842(o)(1)(D) of the Act from the CBP. We are making conforming technical changes to the regulations text consistent with statutory requirements to exclude drugs and biologicals from the CBP. We are amending 42 CFR 414.402 to reflect that infusion drugs are not included in the CBP by revising the definition of “Item” in paragraph (2) to add the words “and infusion” after the words “other than inhalation”. The sentence will read as follows: “Supplies necessary for the effective use of DME other than inhalation and infusion drugs.” We are also removing a reference to drugs being included in the CBP by deleting the phrase “or subpart I” in § 414.412(b)(2). The sentence will read as follows: “The bids submitted for each item in a product category cannot exceed the payment amount that would otherwise apply to the item under subpart C of this part, without the application of § 414.210(g), or subpart D of this part, without the application of § 414.105. The bids submitted for items in accordance with paragraph (d)(2) of this section cannot exceed the weighted average, weighted by total nationwide allowed services, as defined in § 414.202, of the payment amounts that would otherwise apply to the grouping of similar items under subpart C of this part, without the application of § 414.210(g), or subpart D of this part, without the application of § 414.105.” Similarly, we are making a conforming technical change to § 414.414(f) in the discussion of “expected savings” so that infusion drugs are not taken into account by deleting the words “or drug” and the phrase “or the same drug under subpart I” from § 414.414(f). The “expected savings” text will read as follows: A contract is not awarded under this subpart unless CMS determines that the amounts to be paid to contract suppliers for an item under a competitive bidding program are expected to be less than the amounts that would otherwise be paid for the same item under subpart C or subpart D.”

    III. Provisions of the Interim Final Rule With Comment Period A. Transition Period for Phase-In of Fee Schedule Adjustments

    We are amending § 414.210(g)(9)(i) to change the end date for the initial transition period for the phase in of adjustments to fee schedule amounts for certain items based on information from the DMEPOS CBP from June 30, 2016 to December 31, 2016, as mandated by section 16007(a) of the Cures Act. We are also amending § 414.210(g)(9)(ii) to reflect that fully adjusted fee schedule amounts apply from January 1, 2017 through May 31, 2018, and then on or after January 1, 2019. We are also adding § 414.210(g)(9)(iii) to resume the transition period for the phase in of adjustments to fee schedule amounts for certain items furnished in rural and non-contiguous areas from June 1, 2018 through December 31, 2018. Finally, we are adding § 414.210(g)(9)(iv) to reflect that fully adjusted fee schedule amounts apply for certain items furnished in non-CBA areas other than rural and non-contiguous areas from June 1, 2018 through December 31, 2018.

    As previously stated in section II.C.1 of this interim final rule with comment, stakeholders overwhelmingly have stated that the fully adjusted fee schedule amounts are not sufficient to cover supplier costs for furnishing items and services in rural and non-contiguous areas and are impacting beneficiary health outcomes. Section 16008 of the Cures Act requires CMS to consider certain factors in making fee schedule adjustments using information from the CBP for items and services furnished in non-CBAs on or after January 1, 2019. Given the limitations associated with our retrospective claims data prevent us from detecting rapidly developing beneficiary access issues, we believe we should immediately resume the blended fee schedule rates in rural and non-contiguous areas that were in place during CY 2016, while we further analyze this issue in order to safeguard beneficiaries' access to necessary items and services in rural and non-contiguous areas. Given that additional information and factors will be considered when addressing the fee schedule adjustments for items and services furnished on or after January 1, 2019, and that these factors include differences in costs (yet to be quantified) associated with furnishing items in heavier populated CBAs versus less populated or remote rural and non-contiguous areas, we have concluded that we should adjust fee schedule amounts based on competitive bidding information prior to 2019. The volume of items furnished per supplier in rural and non-contiguous areas is far less than the volume of items furnished per supplier in CBAs, indicating that the cost per item in these areas may be higher than the cost per item in CBAs. Also, as noted earlier, our systematic claims monitoring only looks backward in time and may not detect rapidly emerging trends, particularly in isolated or rural areas. We also referenced the GAO's acknowledgement that there are challenges associated with the monitoring CBP. In its report regarding the first year of the DMEPOS CBP Round 1 Rebid, the GAO stated that the monitoring methods used by CMS in assessing the impact of competitive bidding did not directly show whether beneficiaries received the DME needed on time or whether adverse health outcomes were caused by problems accessing DMEPOS. As the fee schedule amounts and the number of suppliers continue to decline, we are concerned that DME access in remote areas of the country may be negatively affected by significant payment reductions put in place prior to a full analysis of the factors affecting the cost of furnishing items and services in distinctly different market areas. We are also concerned that national chain suppliers may close locations in more remote areas if the rate they are paid for furnishing items in a market where the volume of services is low does not justify the overhead expenses of retaining the locations.

    Finally, because this IFC will result in a change to the 2018 fee schedule amounts for the various classes of oxygen and oxygen equipment, the annual budget neutrality adjustment for 2018, mandated by regulations at § 414.226(c)(6), will need to be recomputed. This annual adjustment to the monthly payment amount for stationary oxygen equipment and oxygen contents is mandated by section 1834(a)(9)(D)(ii) of the Act as a condition for maintaining the higher portable oxygen equipment add-on payment for portable concentrators and transfilling equipment.

    B. Technical Changes To Conform the Regulations to Section 5004(b) of the Cures Act: Exclusion of DME Infusion Drugs Under CBPs

    We are making conforming technical changes to the regulations text consistent with statutory requirements to exclude drugs and biologicals from the CBP. Specifically, we are amending § 414.402 to reflect that infusion drugs are not included in the CBP by revising the definition of “Item” in paragraph (2) to add the words “and infusion” after the words “other than inhalation”. We are also removing a reference to drugs being included in the CBP by deleting the phrase “or subpart I” in § 414.412(b)(2). Similarly, we are making a conforming technical change to the regulations text on “expected savings” so that infusion drugs are not taken into account in § 414.414(f) by deleting the words “or drug” and the phrase “or the same drug under subpart I”.

    IV. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite public comment on the proposed rule before the provisions of the rule take effect in accordance with 5 U.S.C. 553(b) of the Administrative Procedure Act (APA) and section 1871 of the Act. Specifically, section 553(b) of the APA requires the agency to publish a notice of the proposed rule in the Federal Register that includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. Section 553(c) of the APA further requires the agency to give interested parties the opportunity to participate in the rulemaking through public comment before the provisions of the rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. Section 553(b)(3)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to waive these procedures, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued. Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of a final rule from the date of its publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds good cause to support an earlier effective date. Section 1871(e)(1)(B)(i) of the Act also prohibits a rule from taking effect before the end of the 30-day period that begins the date that the rule is issued or published. However, section 1871(e)(1)(B)(ii) of the Act permits a substantive rule to take effect before 30 days if the Secretary finds that a waiver of the 30-day period is necessary to comply with statutory requirements or that the 30-day delay would be contrary to the public interest. In addition, the Congressional Review Act (5 U.S.C. 801(a)(3)), requires a 60-day delayed effective date for major rules. However, we can waive the delay in effective date of the rule if the Secretary finds, for good cause, that notice and public procedure is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons in the rule issued (5 U.S.C. 808(2)).

    As discussed below, and for reasons cited throughout this interim final rule with comment period, we find good cause to waive notice-and-comment rulemaking and issue this interim final rule with comment period to address fee schedule adjustments based on information from the CBP in rural and non-contiguous areas because we believe it is contrary to the public interest to go through notice-and-comment rulemaking for this provision. We also find good cause to waive the 30-day delay in effective date of this interim final rule with comment period as a delay in effective date would also be contrary to the public interest. The full fee schedule adjustments took effect on January 1, 2017, and we understand from stakeholders that some DMEPOS suppliers cannot exist at the current fully adjusted fee levels and have already had to drop out of Medicare, and even close down. Delaying the effective date of this interim final rule with comment period by 30 days could result in a further decline in the number of DMEPOS suppliers, and would pose an unnecessary risk of harm to beneficiaries in certain areas of the country that rely on one or a few suppliers to access to items and services and these suppliers are no longer able to furnish the items and services at the fully adjusted fee schedule amounts. We also note that in this interim final rule with comment period, CMS is reverting to a prior transitional payment policy that was in place from January 1, 2016 through December 31, 2016, to allow time for further engagement with stakeholders, through future notice and comment rulemaking, in the development of a long-term, more sustainable fee schedule adjustment methodology for items and services furnished in rural and non-contiguous areas.

    We also find it unnecessary to undertake notice-and-comment rulemaking to make technical changes to conform the regulations to the statutory requirement under section 5004(b) of the Cures Act that infusion drugs used with DME be excluded from the DMEPOS CBP. We also find good cause to waive the delay in the effective date for this interim final rule with comment period because it would be contrary to the public interest to further delay updating the regulations to be consistent with the statute and avoid possible confusion that infusion drugs are still subject to competitive bidding, particularly given that the statutory exclusion is self-implementing and already effective.

    Although we did not formally publish a notice of proposed rulemaking in the Federal Register, we have solicited stakeholder input regarding the impact of the fee schedule adjustments as required by section 16008 of the Cures Act, through a national provider call on March 23, 2017, as well as through an accompanying written comment period. We sought feedback on section 16008 of the Cures Act, which mandates stakeholder input on the methodology for using information from the DMEPOS CBP for adjusting Medicare fee schedule amounts paid in non-CBAs.

    We received numerous comments from stakeholders, such as comments that expressed how the current adjusted fee schedule is not enough to cover a DME supplier's costs of running a business and that many suppliers are not able to sustain reductions in payment of up to 60 percent on average that resulted from the full fee schedule adjustments, resulting in a number of suppliers leaving the business and many more considering leaving the business in the near future. Such a result would negatively impact beneficiaries' access to critical items and services necessary for their care. Some stakeholders commented that some of the more remote, high cost areas are served by only one or a few suppliers. In 2016, there was a 7 percent decline in the number of supplier locations furnishing items and services subject to the fee schedule adjustments in non-CBAs. The magnitude of this decline in supplier locations from 13,535 to 12,617 indicates that the number of supplier locations serving these areas continues to decline at the same time that stakeholders are indicating their expectations of additional supplier exits. In situations where there may only be one supplier serving an area, if the supplier were to stop furnishing items (for example oxygen), the beneficiaries in this area could be harmed significantly if there are no suppliers left to deliver replacement of necessary oxygen. We are concerned that national chain suppliers of oxygen may close locations in more remote areas if the rate they are paid for furnishing items in a market where the volume of services is low does not justify the overhead expenses of retaining the locations. Due to the inherent limitation associated with using retrospective claims data, our systematic monitoring in these areas has not been able to reflect problematic trends identified by numerous stakeholders. As noted, the GAO has also acknowledged challenges associated with the monitoring of DMEPOS and the CBP, stating that the monitoring methods used by CMS in assessing the impact of competitive bidding did not directly show whether beneficiaries received the DME they needed on time or whether adverse health outcomes were caused by problems accessing DMEPOS. Given the rapid changes in health care delivery that may disproportionately impact rural and more isolated geographic areas, we are concerned that the continued decline of the fees and the number of suppliers in such areas may exacerbate the already emergent access concerns faced by beneficiaries. In general, we are concerned that beneficiaries in certain areas of the country could lose access to items and services if they rely on one or a few suppliers to furnish these items and services and these suppliers are no longer able to furnish the items and services at the fully adjusted fee schedule amounts.

    Our monitoring data, by its very nature, would not alert us to the present and imminent threats to beneficiary access that stakeholders have raised in recent months. If CMS continues to pay the fully adjusted payment rates in rural and non-contiguous areas, it could further jeopardize the infrastructure of suppliers that beneficiaries rely on for access to necessary items and services in remote areas of the country. Smaller suppliers that serve remote areas may not be able to sustain larger reductions in payment because they have a limited number of ways to reduce costs. If they only have one location and a few employees to begin with, they cannot close locations or lay off employees to reduce costs. Larger suppliers that serve both remote, rural areas and urban areas may elect to close locations in the remote areas where volume of services are significantly lower because the overhead expense of maintaining the location may no longer justify retaining these locations. Therefore, we believe it is necessary to prevent future, potential access problems and adverse health outcomes for beneficiaries by resuming the fee schedule adjustment transition period in rural and non-contiguous areas. Immediately restoring the blended rates in rural and non-contiguous areas, which will cut the magnitude of the full adjustments in half, can prevent potential erosion of the supplier infrastructure that could potentially be on the verge of impacting access and health outcomes in rural and non-contiguous areas. By restoring the transition period in rural and non-contiguous areas effective June 1, 2018, this in essence extends the fee schedule adjustment phase in period by an additional 7 months and leaves a gap of 17 months from January 1, 2017 through May 31, 2018, during which suppliers have been subject to the full fee schedule adjustments in rural and non-contiguous areas. This extended phase-in period would end on December 31, 2018, since section 16008 of the Cures Act mandates that CMS consider certain factors and information in making fee schedule adjustments for items and services furnished on or after January 1, 2019. This gives suppliers serving rural and non-contiguous areas more time to adjust their businesses and may prevent the imminent closure of some supplier locations, thereby safeguarding beneficiary access to necessary items and services in rural and non-contiguous areas. It also prevents irreparable harm to businesses in rural and non-contiguous areas that would not be able to adjust to the full payment reductions, but might be able to adjust to smaller reductions in payments during an interim period until additional cost information is examined more closely by CMS to provide a more accurate reflection of the unique costs of furnishing items and services in market areas that are distinctly different from CBAs. This also allows time for CMS to receive supplier feedback and analyze the costs of furnishing DME items in rural and non-contiguous areas and other factors identified in section 16008 of the Cures Act. Resuming the fee schedule adjustment transition period for an additional 7 months in rural and non-contiguous areas seems reasonable during this interim period to allow for the more in depth analysis of the factors and information to be considered in accordance with section 16008 of the Cures Act.

    In light of these concerns, while we consider broader changes to the fee schedule adjustment methodology as required by section 16008 of the Cures Act, we believe there is good cause to issue this interim final rule with comment period to revise § 414.210(g)(9) to immediately restore the fee schedule adjustment transition period in rural and non-contiguous areas. Resuming the transition period and blended rates based on adjusted and unadjusted fee schedule amounts for items and services furnished in rural and non-contiguous areas from June 1, 2018 through December 31, 2018, will allow additional time for suppliers serving rural and non-contiguous areas to adjust their businesses, prevent suppliers that beneficiaries may rely on for access to items and services in rural and non-contiguous areas from exiting the business, and allow additional time for CMS to monitor the impact of the blended rates. We believe it is contrary to the public interest to go through notice and comment rulemaking because of the stakeholder input we have already solicited that supports this change and because any further delay in implementation risks impeding beneficiary access to DME in rural and non-contiguous areas. To further delay restoring the transitional fee schedule rates in rural and non-contiguous areas for additional months raises the access concerns described earlier in the preamble. As such, in § 414.210(g)(9)(iii), for items and services furnished in rural and non-contiguous areas on or after June 1, 2018, the payment adjustments will be based on a blend of 50 percent of the unadjusted fee schedule amount and 50 percent of the adjusted payment amount established in accordance with the methodologies in § 414.210(g)(1) through (8). We are also amending § 414.210(g)(9)(ii) to reflect that for items and services furnished with dates of service from January 1, 2017 to May 31, 2018, the fee schedule amount for the area is equal to 100 percent of the adjusted payment amount.

    We note that this rule is urgent to preserve beneficiary access to DME items and services in rural and non-contiguous areas during this transition period, that CMS is continuing to study the impact of the change in payment rates on access to items and services in these areas, and that we intend to undertake subsequent notice-and-comment rulemaking for CY 2019.

    Section 5004(b) of the Cures Act further amends section 1847(a)(2)(A) of the Act to exclude drugs and biologicals described in section 1842(o)(1)(D) of the Act. We are finalizing conforming regulatory changes to reflect our interpretation of these statutory requirements to exclude infusion drugs, described in section 1842(o)(1)(D) of the Act, as a covered item that could be subject to the DMEPOS CBPs. Because this is just a minor technical change to conform the language in the regulations to the statute, we believe that a notice and comment period for this change is unnecessary.

    Therefore, as noted above, we find good cause to waive the notice of proposed rulemaking to address fee schedule adjustments in rural and non-contiguous areas based on information from the CBP, and to make technical changes to the regulations so they conform to the statutory requirement under section 5004(b) of the Cures Act that infusion drugs used with DME be excluded from the DMEPOS CBP. We also find good cause to waive the delay in effective date and issue this interim final rule with comment period with an effective date of June 1, 2018. We are providing a 60-day public comment period.

    V. Collection of Information Requirements

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

    VI. Response to Comments

    Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

    VII. Economic Analyses A. Regulatory Impact Analysis 1. Introduction

    We have examined the impacts of this interim final rule with comment period as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

    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). 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 1 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 (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We estimate that this rulemaking is “economically significant” as measured by the $100 million threshold, and hence also a major rule under the Congressional Review Act. In addition, the Office of Management and Budget (OMB) has determined that the actions are significant within the meaning of section 3(f)(4) of the Executive Order. Accordingly, we have prepared a Regulatory Impact Analysis that to the best of our ability presents the costs and benefits of the rulemaking. Therefore, OMB has reviewed this interim final rule with comment period, and the Departments have provided the following assessment of their impact. We solicit comments on the regulatory impact analysis provided.

    2. Statement of Need

    This interim final rule with comment period amends the regulation to revise the date that the initial fee schedule adjustment transition period ended and resumes the fee schedule adjustment transition period for certain DME items and services and enteral nutrition furnished in rural and non-contiguous areas not subject to the DMEPOS CBP from June 1, 2018 through December 31, 2018. This interim final rule with comment period also makes technical amendments to existing regulations for DMEPOS items and services to note the exclusion of infusion drugs used with DME from the DMEPOS CBP.

    3. Overall Impact

    The interim final rule with comment period resumes the transitional adjusted Medicare fee schedule amounts for certain items and services that are furnished in rural and non-contiguous areas beginning June 1, 2018 until December 31, 2018. It is estimated that these fee schedule adjustments will cost over $290 million in Medicare Part B benefit payments and $70 million in Medicare beneficiary cost sharing. For dual eligible beneficiaries Medicaid pays the cost sharing. The Medicaid payment is split between a Federal portion and the states' portion, which for this rule is $10 million and $10 million, respectively.

    B. Detailed Economic Analysis a. Effects on the Medicare Program and Beneficiaries

    This interim final rule with comment period resumes transitional adjusted Medicare fee schedule amounts for certain items and services furnished in rural and non-contiguous areas beginning June 1, 2018 until December 31, 2018. It is estimated that these adjustments will cost over $290 million in Medicare Part B benefit payments and $70 million in beneficiary cost sharing. The suppliers will get increased revenue from the increased fee schedule amounts. See Table 1.

    Table 1—Cash Impact of Resuming the Adjusted Fee Schedule Transition FY Impact on the benefit
  • payments in dollars
  • (to the nearer 10 million) 1
  • Impact on beneficiary
  • cost sharing in dollars
  • (to the nearer 10 million) 2
  • Federal share
  • of Medicaid 3
  • States' share
  • of Medicaid 3
  • 2018 170 40 5 5 2019 120 30 5 5 1 Does not include premium offset. 2 Includes Medicaid payments. 3 Copayments made for dual eligible Medicare beneficiaries.
    b. Impact on Beneficiaries and Other Payers

    In order to preserve beneficiary access to DME items and services, this rule, as indicated above, will result in a $70 million dollar Medicare cost sharing increase to the beneficiaries. For those beneficiaries who have supplemental insurance, this increase may be covered by supplemental insurance programs (for example, Medigap). This is a temporary time-limited extension of the fee schedule adjustment transition period.

    For dual eligible beneficiaries, Medicaid pays the cost sharing. The Medicaid payment is split between a Federal portion and the states' portion, which for this rule is $10 million and $10 million, respectively.

    Beneficiaries who do not have supplemental insurance or who are not dual eligible will have increased cost sharing as a result of this interim final rule with comment period.

    c. Alternatives Considered

    One alternative considered to address concerns about access to items and services in non-CBAs would be to apply the 50/50 blended rates in all non-CBAs, since stakeholders commented regarding problems related to access to necessary items and services in all non-CBAs. This would cost $570 million in Medicare Part B benefit payments and $140 million in beneficiary cost sharing. Of the $140 million in beneficiary cost sharing, $45 million is the Medicaid impact for dual eligibles, of which $25 million is the Federal portion, and $20 million is the state portion. A second alternative would be to apply the blended rates in all non-CBAs, but change the blend from 50 percent unadjusted fee and 50 percent adjusted fee to 25 percent unadjusted fee and 75 percent adjusted fee. This would cost $290 million in Medicare Part B benefit payments and $70 million in beneficiary cost sharing. Of the $70 million in beneficiary cost sharing, $20 million is the Medicaid impact for dual eligibles, of which $10 million is the Federal portion, and $10 million is the state portion. Table 2 compared the annual costs of these alternative rules to the annual costs of the interim final rule with comment period.

    Table 2—Comparison of the Costs of Alternative Rules With the Interim Final Rule With Comment Period FY Interim
  • final rule
  • 50/50 Blend in
  • all non-CBAs
  • 25/75 Blend in
  • all non-CBAs
  • 2018 170 330 170 2019 120 240 120

    We did not elect either of these alternatives and chose to apply the 50/50 blended rates in rural and non-contiguous areas only to ensure access to items and services for Medicare beneficiaries in these areas.

    Public comments are requested on these and any other related alternatives.

    d. Regulatory Familiarization Costs

    If regulations impose administrative costs on private entities, such as the time needed to read and interpret this interim final rule with comment period, we should estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that the number of reviewers of this final rule is about the same number of commenters on similar, past rules. We acknowledge that this assumption may understate or overstate the costs of reviewing this interim final rule with comment period. Using the wage information from the Bureau of Labor Statistics (BLS) for medical and health service managers (Code 11-9111), we estimate that the cost of reviewing this interim final rule with comment period is $105.16 per hour, including overhead and fringe benefits (https://www.bls.gov/oes/current/oes_nat.htm). Assuming an average reading speed, we estimate that it will take approximately 2 hours for the staff to review this interim final rule with comment period. For each entity that reviews this interim final rule with comment period, the estimated cost is $210.32 (2 hours × $105.16). Therefore, we estimate that the total cost of reviewing this interim final rule with comment period is $21,320 ($210.32 × 100 reviewers).

    C. Accounting Statement

    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars_a004_a-4), in Table 3, we have prepared an accounting statement showing the classification of the transfers and costs associated with the various provisions of this interim final rule with comment period.

    Table 3—Accounting Statement: Classification of Estimated Transfers and Costs/Savings, With Annualization Period 2018-2019 DME provisions Category Transfers Annualized Monetized Transfers $146 million (7%) or $145 million (3%). From Whom to Whom Federal government to Medicare providers. Increased Beneficiary Co-insurance Payments $35 million (7%) or 35 million (3%). From Whom to Whom Beneficiaries to Medicare providers.

    In accordance with the provisions of Executive Order 12866, this rule was reviewed by the Office of Management and Budget.

    VIII. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (September 19, 1980, Pub. L. 96-354) (RFA) requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Approximately 85 percent of the DME industry are considered small businesses according to the Small Business Administration's size standards with total revenues of $6.5 million or less in any 1 year and a small percentage are nonprofit organizations. Individuals and states are not included in the definition of a small entity. We expect the interim final rule with comment period DME provisions will have a significant impact on small suppliers. A substantial number of small suppliers will benefit from the increased fee schedule amounts. Although not legally required, this interim final rule with comment period will increase payments to small suppliers such that the beneficiaries should have improved access to items.

    In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. Our data indicates that only around 6.9 percent of small rural hospitals are organizationally linked to a DME supplier with paid claims in 2017. Thus, we do not believe this interim final rule with comment period will have a significant impact on operations of a substantial number of small rural hospitals.

    IX. Unfunded Mandates Reform Act Analysis

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. The Secretary has determined that UMRA does not apply to this rule in that this rule does not contain mandates that impose spending costs on state, local, or tribal governments in the aggregate.

    X. Federalism Analysis

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. The Secretary has determined that this rule does not impose substantial direct requirement costs on state or local governments, preempt states, or otherwise have a Federalism implication.

    XI. Reducing Regulation and Controlling Regulatory Costs

    Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. This interim final rule with comment period is not subject to the requirements of Executive Order 13771 because it is estimated to result in no more than de minimis costs.

    XII. Congressional Review Act

    This rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and has been transmitted to the Congress and the Comptroller General for review.

    List of Subjects in 42 CFR Part 414

    Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR Chapter IV as set forth below:

    PART 414—PAYMENT FOR PART B MEDICAL AND OTHER HEALTH SERVICES 1. The authority citation for part 414 continues to read as follows: Authority:

    Secs. 1102, 1871, and 1881(b)(l) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(l)).

    2. Section 414.210 is amended by revising paragraph (g)(9) to read as follows.
    § 414.210 General payment rules.

    (g) * * *

    (9) Transition rules. The payment adjustments described above are phased in as follows:

    (i) For applicable items and services furnished with dates of service from January 1, 2016 through December 31, 2016, based on the fee schedule amount for the area is equal to 50 percent of the adjusted payment amount established under this section and 50 percent of the unadjusted fee schedule amount.

    (ii) For items and services furnished with dates of service from January 1, 2017, through May 31, 2018, and on or after January 1, 2019, the fee schedule amount for the area is equal to 100 percent of the adjusted payment amount established under this section.

    (iii) For items and services furnished in rural areas and non-contiguous areas (Alaska, Hawaii, and U.S. territories) with dates of service from June 1, 2018 through December 31, 2018, based on the fee schedule amount for the area is equal to 50 percent of the adjusted payment amount established under this section and 50 percent of the unadjusted fee schedule amount.

    (iv) For items and services furnished in areas other than rural or non-contiguous areas with dates of service from June 1, 2018 through December 31, 2018, based on the fee schedule amount for the area is equal to 100 percent of the adjusted payment amount established under this section.

    § 414.402 [Amended]
    3. Section 414.402 is amended in paragraph (2) of the definition of “Item” by removing the words “inhalation drugs” and by adding in their place “inhalation and infusion drugs”.
    § 414.412 [Amended]
    4. Section 414.412(b)(2) is amended by removing the phrase “, or subpart I of this part”.
    § 414.414 [Amended]
    5. Section 414.414(f) is amended by removing the words “or drug” and the phrase “or the same drug under subpart I”.
    Dated: May 7, 2018. Seema Verma, Administrator, Centers for Medicare & Medicaid Services. Dated: May 7, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
    [FR Doc. 2018-10084 Filed 5-9-18; 4:15 pm] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Parts 147, 153, 154, 155, 156, 157, and 158 [CMS-9930-F] RIN 0938-AT12 Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2019; Correction AGENCY:

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

    ACTION:

    Final rule; correction.

    SUMMARY:

    This document corrects technical errors that appeared in the final rule published in the Federal Register on April 17, 2018 entitled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2019.”

    DATES:

    Effective Date: This correcting document is effective June 18, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lindsey Murtagh, (301) 492-4106, Rachel Arguello, (301) 492-4263, or Abigail Walker, (410) 786-1725, for general information.

    Krutika Amin, (301) 492-5153, for matters related to risk adjustment.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2018-07355 of April 17, 2018 (83 FR 16930), the final rule entitled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2019”, there were a number of technical errors in the HHS risk adjustment model factors for adults and infants that are identified and corrected in the Correction of Errors section below. There was also an error in the Collection of Information section. The effective date of the final rule is June 18, 2018.

    II. Summary of Errors

    The 2019 benefit year final HHS risk adjustment model factors included in the HHS Notice of Benefit and Payment Parameters for 2019 final rule include a few errors in the adult risk adjustment model factors (Table 2) and the infant risk adjustment model factors (Table 5). This correction notice to the final rule amends the final adult and infant risk adjustment model factors for the 2019 benefit year. We have also made the final risk adjustment model factors for the 2019 benefit year for the adult, child and infant models, including corrections to the adult and infant model factors, available at https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2019-Final-HHS-RA-Model-Coefficients.pdf and https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2019-Final-HHS-RA-Model-Coefficients-X.xlsx.

    On page 17043 of the Collection of Information section, in our discussion regarding the submission of PRA related comments, the incorrect delivery information was included.

    III. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

    This document merely corrects technical and typographic errors in the Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2019 final rule that was published on April 17, 2018 and will become effective on June 18, 2018. The changes are not substantive changes to the standards set forth in the final rule. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections is unnecessary. For the reasons stated previously, we find there is good cause to waive notice and comment procedures.

    IV. Correction of Errors

    In FR Doc. 2018-07355 of April 17, 2018 (83 FR 16930), make the following corrections:

    1. On page 16945, the final adult risk adjustment model factors for the 2019 benefit year in Table 2 are corrected for four HCCs labeled as HCC029, HCC034, HCC035 and HCC036 to read as follows.

    HCC or RXC No. Factor Platinum Gold Silver Bronze Catastrophic HCC029 Amyloidosis, Porphyria, and Other Metabolic Disorders 2.380 2.280 2.200 2.137 2.132 HCC034 Liver Transplant Status/Complications 10.515 10.418 10.353 10.334 10.331 HCC035 End-Stage Liver Disease 5.696 5.491 5.349 5.341 5.339 HCC036 Cirrhosis of Liver 1.995 1.868 1.780 1.725 1.720

    2. On page 16950, the final infant risk adjustment model factors for the 2019 benefit year in Table 5 are corrected for the Age1 * Severity Level 5 (Highest) group to read as follows.

    Group Platinum Gold Silver Bronze Catastrophic Age1 * Severity Level 5 (Highest) 54.522 53.855 53.298 53.200 53.192

    3. On page 16951, the final infant risk adjustment model factors for the 2019 benefit year in Table 5 are corrected for the Age1 * Severity Level 4, Age1 * Severity Level 3, Age1 * Severity Level 2, Age1 * Severity Level 1 (Lowest), Age 0 Male, and Age 1 Male groups to read as follows.

    Group Platinum Gold Silver Bronze Catastrophic Age1 * Severity Level 4 9.637 9.153 8.751 8.495 8.473 Age1 * Severity Level 3 3.058 2.786 2.511 2.263 2.245 Age1 * Severity Level 2 1.960 1.747 1.509 1.246 1.226 Age1 * Severity Level 1 (Lowest) 0.520 0.443 0.330 0.252 0.247 Age 0 Male 0.627 0.584 0.561 0.502 0.495 Age 1 Male 0.106 0.090 0.077 0.052 0.050

    4. On page 17043, in the collection of information section, “We invite public comments on these information collection requirements. If you wish to comment, please submit your comments electronically as specified in the ADDRESSES section of this final rule and identify the rule (CMS-9930-F), the ICR's CFR citation, CMS ID number, and OMB control number.” is corrected to read,

    “We invite public comments on these information collection requirements. If you wish to comment, please identify the rule (CMS-9930-F) the ICR's CFR citation, CMS ID number, and OMB control number. Comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs; Attention: CMS Desk Officer; Fax: (202) 395-5806 OR Email: [email protected].

    To obtain copies of a supporting statement and any related forms for the collection(s) summarized in this rule, you may make your request using one of following:

    1. Access CMS' website address at website address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected]

    3. Call the Reports Clearance Office at (410) 786-1326.”

    Dated: May 7, 2018. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2018-10089 Filed 5-10-18; 8:45 am] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 8, and 20 [WC Docket No. 17-108, FCC 17-166] Restoring Internet Freedom AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; announcement of effective date.

    SUMMARY:

    In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's Restoring Internet Freedom Declaratory Ruling, Report and Order, and Order (Order)'s transparency rule. This document is consistent with the Order, which stated that the Commission would publish a notice in the Federal Register announcing the effective date of the refinements to the transparency rule, the delayed amendatory instructions revising the Commission's rules consistent with the Order, and the Order, which among other things restore the classification of broadband internet access service as an information service, reinstate the private mobile service classification of mobile broadband internet access service, and eliminate the conduct rules imposed by the Title II Order.

    DATES:

    The Order and amendments to 47 CFR 1.49, 8.1, 8.2, 8.3, 8.5, 8.7, 8.9, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 8.18, 8.19, and 20.3, published at 83 FR 7852, February 22, 2018, are effective June 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ramesh Nagarajan, Competition Policy Division, Wireline Competition Bureau, at (202) 418-2582, or [email protected]

    SUPPLEMENTARY INFORMATION:

    This document announces that, on May 2, 2018, OMB approved, for a period of three years, the information collection requirements relating to the transparency rule contained in the Commission's Order, FCC 17-166, published at 83 FR 7852, February 22, 2018. The OMB Control Number is 3060-1158. The Commission publishes this document as an announcement of the effective date of the refinements to the transparency rule, the delayed amendatory instructions (amendatory instructions 2, 3, 5, 6, and 8 published at 83 FR 7852, February 22, 2018), and the Order, which among other things restore the classification of broadband internet access service as an information service, reinstate the private mobile service classification of mobile broadband internet access service, and eliminate the conduct rules imposed by the Title II Order. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please email [email protected] or contact Nicole Ongele, Federal Communications Commission, at [email protected] or (202) 418-2991. Please include the OMB Control Number, 3060-1158, in your correspondence.

    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 and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on May 2, 2018, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 8. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

    No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1158.

    The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

    The total annual reporting burdens and costs for the respondents are as follows:

    OMB Control Number: 3060-1158.

    OMB Approval Date: May 2, 2018.

    OMB Expiration Date: May 31, 2021.

    Title: Transparency Rule Disclosures, Restoring Internet Freedom, Report and Order, WC Docket No. 17-108, FCC 17-166.

    Form Number: N/A.

    Respondents: Business or other for-profit entities, Not-for-profit entities, State, local, or Tribal governments.

    Number of Respondents and Responses: 1,919 respondents; 1,919 responses.

    Estimated Time per Response: 26 hours.

    Frequency of Response: On-occasion reporting requirement; Third-party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Section 257 of the Communications Act of 1934, as amended, 47 U.S.C. 257.

    Total Annual Burden: 49,894 hours.

    Total Annual Cost: $560,000.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality with this information collection.

    Needs and Uses: The Order revises the information collection requirements applicable to internet service providers (ISPs). The Order requires an ISP to publicly disclose network management practices, performance characteristics, and commercial terms of its broadband internet access service sufficient to enable consumers to make informed choices regarding the purchase and use of such services, and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. As part of these disclosures, the rule requires ISPs to disclose their congestion management, application-specific behavior, device attachment rules, and security practices, as well as any blocking, throttling, affiliated prioritization, or paid prioritization in which they engage. Specifically, the rule requires ISPs to disclose:

    Blocking. Any practice (other than reasonable network management elsewhere disclosed) that blocks or otherwise prevents end user access to lawful content, applications, service, or non-harmful devices, including a description of what is blocked.

    Throttling. Any practice (other than reasonable network management elsewhere disclosed) that degrades or impairs access to lawful internet traffic on the basis of content, application, service, user, or use of a non-harmful device, including a description of what is throttled.

    Affiliated Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, to benefit an affiliate, including identification of the affiliate.

    Paid Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, in exchange for consideration, monetary or otherwise.

    Congestion Management. Descriptions of congestion management practices, if any. These descriptions should include the types of traffic subject to the practices; the purposes served by the practices; the practices' effects on end users' experience; criteria used in practices, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.

    Application-Specific Behavior. Whether and why the ISP blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.

    Device Attachment Rules. Any restrictions on the types of devices and any approval procedures for devices to connect to the network.

    Security. Any practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).

    The rule also requires ISPs to disclose performance characteristics, including a service description and the impact of non-broadband internet access services data services. Specifically, the rule requires ISPs to disclose a general description of the service—including the service technology, expected and actual access speed and latency, and the suitability of the service for real-time applications—as well as what non-broadband internet access service data services, if any, are offered to end users, and whether and how any non-broadband internet access service data services may affect the last-mile capacity available for, and the performance of, broadband internet access service.

    Finally, the rule requires ISPs to disclose commercial terms of service, including price of the service, privacy policies, and redress options. Specifically, the rule requires disclosure of, for example, monthly prices, usage-based fees, and fees for early termination or additional network services; a complete and accurate disclosure about the ISP's privacy practices, if any, including whether any network management practices entail inspection of network traffic, and whether traffic is stored, provided to third parties, or used by the ISP for non-network management purposes; and practices for resolving complaints and questions from consumers, entrepreneurs, and other small businesses. The rule requires ISPs to make such disclosures either via a publicly available, easily accessible website or through transmittal to the Commission, which will make such disclosures available via a publicly available, easily accessible website.

    The Order eliminates the additional reporting obligations adopted in the Title II Order and the related guidance in the 2016 Advisory Guidance and returns to the requirements established in the Open internet Order. In addition, the Order eliminates the direct notification requirement adopted in the Title II Order.

    The Commission anticipates that the revised disclosures will empower consumers and businesses with information about their broadband internet access service, protecting the openness of the internet. The information collection will assist the Commission in its statutory obligation to report to Congress on market entry barriers in the telecommunications market.

    Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2018-10063 Filed 5-10-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0137; FXES11130900000 189 FF09E42000] RIN 1018-BB89 Endangered and Threatened Wildlife and Plants; Reclassifying Echinocereus fendleri var. kuenzleri from Endangered to Threatened AGENCY: Fish and Wildlife Service, Interior. ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), reclassify Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus) from endangered to threatened on the Federal List of Endangered and Threatened Plants under the authority of the Endangered Species Act of 1973, as amended (Act). This determination is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to this plant have been reduced to the point that it no longer meets the definition of endangered under the Act, but that it is likely to become an endangered species within the foreseeable future.

    DATES:

    This rule is effective June 11, 2018.

    ADDRESSES:

    This final rule, as well as comments and materials received in response to the proposed rule, are available on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0137. Comments and materials we received, as well as supporting documentation used in preparation of this rule, are available for public inspection at http://www.regulations.gov and by appointment, during normal business hours, at U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    FOR FURTHER INFORMATION CONTACT:

    Susan S. Millsap, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525; email [email protected] If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background

    At section 3(16), the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), defines the term “species” as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. As such, we may refer to the variety Echinocereus fendleri var. kuenzleri as a “species” in this rule.

    Under the Act, a species is an endangered or threatened species based on any one or a combination of the five listing factors established under section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

    After conducting a review of its biological status and threats, we have determined that Echinocereus fendleri var. kuenzleri is no longer in danger of extinction throughout all or a signification portion of its range; however, this plant is likely to become endangered within the foreseeable future as a result of wildfire, livestock grazing, effects of climate change (Factor A), illicit collection (Factor B), and small population size and density (Factor E).

    We sought comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our reclassification proposal, and we considered all comments and information we received during the public comment period.

    This rule makes final the reclassification of E. f. var. kuenzleri from an endangered to a threatened species.

    Previous Federal Actions

    We proposed to list this plant, with the scientific name Echinocereus hempelii, as an endangered species under the Act on June 16, 1976 (41 FR 24524), because of threats from the demand by private and commercial collectors, road maintenance and improvements, cattle grazing, and real estate development. On October 26, 1979 (44 FR 61924), we published in the Federal Register a final rule listing the plant, with the scientific name Echinocereus kuenzleri, as an endangered species. Benson (1982, p. 631) subsequently reduced this species to infraspecific rank as E. fendleri var. kuenzleri. Based on this nomenclatural change, we accepted the variety E. fendleri var. kuenzleri and officially changed the name on the List of Endangered and Threatened Wildlife and Plants in 1984 (Service 1984, p. 21). We finalized a recovery plan for this species in March 1985 (Service 1985, entire).

    On July 21, 2004, we published a notice (69 FR 43621) announcing that we were conducting a 5-year review of the status of E. f. var. kuenzleri under section 4(c)(2) of the Act. The 5-year review was completed on June 7, 2005 (Service 2005, entire), and recommended a reclassification of the species from endangered to threatened.

    We received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting the Service to reclassify E. f. var. kuenzleri from endangered to threatened. The petition was based on the analysis and recommendations contained in the 2005 5-year review.

    On September 9, 2013 (78 FR 55046), we published in the Federal Register a 90-day finding for the 2012 petition to reclassify E. f. var. kuenzleri. In our 90-day finding, we determined the 2012 petition provided substantial information indicating the petitioned action may be warranted, and we initiated a status review for the plant.

    On November 20, 2015, the Service received a complaint (New Mexico Cattle Growers' Association et al. v. United States Department of the Interior et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory judgment and injunctive relief from the New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to compel the Service to make a 12-month finding on the 2012 petition. We completed an updated 5-year review in 2016 (Service 2016, entire). The 2016 5-year review also recommended a reclassification of the species from endangered to threatened.

    On January 6, 2017 (82 FR 1677), we published a proposed rule to reclassify E. f. var. kuenzleri as threatened, which also constituted our 12-month petition finding that the action requested in the 2012 petition is warranted.

    On June 13, 2017 (82 FR 27033), we reopened the comment period on the proposed reclassification of E. f. var. kuenzleri for 30 days in order to publish a legal notice and to give all interested parties further opportunity to comment on the proposed rule. On June 14, 2017, we published legal notices in Carlsbad and Roswell, New Mexico, newspapers.

    Summary of Biological Status and Threats

    It is our intent to discuss below only those topics directly relevant to the reclassification of Echinocereus fendleri var. kuenzleri from endangered to threatened. For a thorough assessment of the species' biology and natural history including limiting factors, species resource needs, and threats, please refer to the Species Status Assessment (SSA) Report (Service 2017, entire), which is available on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0137.

    In the SSA Report, we compile biological data and a description of past, present, and likely future threats (causes and effects) facing E. f. var. kuenzleri. Because data are limited, some uncertainties are associated with this assessment. Where we have substantial uncertainty, we have attempted to make our necessary assumptions explicit in the SSA Report. We base our assumptions in these areas on the best available scientific and commercial information. The SSA Report does not represent a decision by the Service on whether or not this taxon should be reclassified from an endangered species to a threatened species under the Act. The SSA Report does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its regulations and policies.

    In 1979, at the time of listing, fewer than 200 individual plants had been documented at two locations. During inventories from 1976 to 2015, botanists found at least 4,330 E. f. var. kuenzleri. Most surveyors for E. f. var. kuenzleri state that the numbers of sightings likely under-represent the current numbers of cacti present because they are small and difficult to detect in the field when not blooming and because survey efforts are limited.

    In conducting our SSA, we first considered what E. f. var. kuenzleri needs to ensure its viability. We generally define viability as the ability of the species to persist over the long term and to avoid extinction. We next evaluated whether the identified needs of E. f. var. kuenzleri are currently available and the repercussions to the species when fulfillment of those needs is missing or diminished. We then considered the factors that are causing the species to lack what it needs, including historical, current, and future factors. Finally, considering the information reviewed, we evaluated the current status and future viability of the species in terms of resiliency, redundancy, and representation.

    Resiliency is the ability of the species to withstand stochastic events (arising from random factors such as weather or fire) and, in the case of E. f. var. kuenzleri, is best measured by habitat connectivity. Redundancy is the ability of a species to withstand catastrophic events by spreading the risk and can be measured through the duplication and distribution of resilient populations across the range of E. f. var. kuenzleri. Representation is the ability of a species to adapt to changing environmental conditions and can be measured by the breadth of genetic diversity within and among populations and the ecological diversity of populations across the species' range. For E. f. var. kuenzleri, we evaluate representation based on the extent of the geographical range as an indicator of genetic and ecological diversity. The main areas of uncertainty in our analysis include the minimum amount of suitable habitat needed to support resilient populations and the number of populations needed to provide for adequate redundancy and representation.

    We evaluated the species over a range of scenarios, from worsening conditions to continuing current conditions to better-than-expected conditions. Under continuing current conditions, the resiliency was determined to be moderate to high, but there was some risk of resiliency falling to a moderate to low level under worsening conditions (Service 2017, pp. 38, 41).

    Redundancy has increased based on additional survey effort from the time of listing of 200 individuals at two locations to 11,000-22,000 individuals at 11 locations currently. These populations are spread over 190 kilometers (118 miles) of suitable habitat (Service 2017, p. 10). Based on this additional information, we conclude that there is sufficient redundancy to maintain the species during the timeframe of the SSA's projections.

    While we do not know the range of genetic diversity in the species, it occurs over a range of ecological conditions that suggest adequate representation to maintain genetic viability. The number of individuals and populations are consistent with guidelines to conserve genetic diversity (Whitlock et al. 2016, p. 134).

    Our overall assessment concluded that E. f. var. kuenzleri has an overall moderate viability (probability of persistence) in the near term (between now and the next 50 years). In this summary, we present an overview of the comprehensive biological status review. A detailed discussion of the information supporting this overview can be found in the SSA Report (Service 2017, entire).

    Summary of Species Requirements

    E. f. var. kuenzleri is a small cactus that is endemic to the northwest side of the Sacramento and Capitan Mountains in Lincoln County, New Mexico, to the middle of the Guadalupe Mountains in Eddy County, New Mexico. E. f. var. kuenzleri reaches maturity in around 4 to 5 years of age, flowers in April to June, lives for roughly 30 to 40 years, with an estimated 10 percent annual mortality. E. f. var. kuenzleri occurs in the lower fringes of the pinion-juniper woodland from about 1,560 to 2,130 meters (5,100 to 6,990 feet) elevation with an average of 180 frost-free days and annual precipitation of about 41 centimeters (16 inches). Occupied habitat consists of gentle slopes (15 to 60 percent) or benches with gravelly to rocky soils and southern, eastern, and western exposures.

    E. f. var. kuenzleri can be found in soil composed mostly of sand, silt, and a smaller amount of clay particles (loam), containing 35 percent or more (by volume) of rock fragments, cobbles, or gravel (skeletal). This combination of particles and small rock fragments allows for rapid soil drainage. The soil depth ranges from very shallow to very deep, derived from limestone, sandstone, sedimentary rock, igneous rock, or mixed sources (Soil Survey Geographic Database [SSURGO] 2014).

    Review of the Recovery Plan

    In 1985, we published a recovery plan for E. f. var. kuenzleri (Service 1985, entire).

    The first downlisting criterion in the recovery plan states that E. f. var. kuenzleri could be reclassified to threatened status when existing natural populations are increased to approximately 5,000 individual plants and when that population level is maintained for a period of 5 consecutive years (Service 1985, p. iii). The second downlisting criterion in the 1985 recovery plan is based on the need for the Service to remove the collecting pressure to offset the threat of illegal collection.

    The first criterion was intended to address the point at which imminent threats to the plant had been reduced so that the populations were no longer in immediate risk of extirpation. Since its listing in 1979, estimated abundance of individuals in all populations has changed over time from approximately 200 individuals to a current known status of 11 populations with 4,330 plants observed (1976-2015) (Service 2005, p. 4; Service 2016, pp. 34). Because of the difficulty in locating nonflowering plants and limited survey efforts, we used a habitat suitability model in the SSA to estimate the population size (Service 2017, Appendix B). This model resulted in an estimated total population of between 11,000-20,000 individuals occurring across the range of the species (Service 2017, p. 13).

    The second recovery criterion is to remove the collecting pressure by promoting commercial propagation. Regardless of its commercial availability, we believe that local populations, especially near the type locality (location where the description and name of a new species is based), may continue to be impacted by occasional poaching from growers and hobbyists. This conclusion is based on recent observations of illegal collection (Baggao 2017, p. 1). Data that we have analyzed indicate that most threats identified in the recovery plan have been reduced or eliminated in areas occupied by E. f. var. kuenzleri. As discussed in the SSA Report, the status of the species has improved since the 1985 recovery plan, primarily based on finding additional populations over a broader range. However, the SSA Report also discusses additional threats to the species, primarily associated with fire regime alteration and climate change effects (i.e., lengthening of drought duration, increased temperatures, less precipitation, and increased evaporative deficit) (Service 2017, pp. 16-21), that are likely to impact the species.

    Summary of Factors Affecting Echinocereus fendleri var. kuenzleri

    At the time of listing, the primary threats to E. f. var. kuenzleri were private and commercial collection, road improvement and maintenance, real estate development, and livestock grazing (44 FR 61924; October 26, 1979). In the 1985 recovery plan, we concluded these same threats continued to impact the species (Service 1985, pp. 8-12). Subsequently, in 2005 and 2016, we conducted 5-year status reviews (Service 2005, pp. 12-14; Service 2016, p. 5). The 2005 5-year status review found that the threat of habitat loss from road improvement and maintenance and real estate development (Factor A), and a direct threat from illegal collection (Factor B), have been reduced or eliminated since the time of listing, and are no longer affecting the status of the species. Livestock grazing (Factor A) continued to be a threat by trampling in areas that are improperly managed. The 2005 5-year review also identified an additional threat of fire based on the alteration of the natural fire regime (Service 2005, p. 13). The 2016 5-year status review identified climate change effects (i.e., lengthening of drought duration, increased temperatures, less precipitation, and increased evaporative deficit) as additional threats to the species. E. f. var. kuenzleri requires 41 centimeters (16 inches) or more of rain annually to persist. Drought has impacted several populations and long-term trends indicate increased temperatures and a decrease in precipitation within the range of the cactus (Service 2016, pp. 10-11). The SSA Report identified wildfire (Service 2017, p. 17), livestock grazing (Service 2017, pp. 17-18), effects of climate change (Service 2017, pp. 20-21) (Factor A), illicit collection (Service 2017, p. 19) (Factor B), and small population size and density (Service 2017, p. 20) (Factor E) as continuing or additional threats to the species.

    Summary of Comments on Proposed Rule

    In the proposed rule published on January 6, 2017 (82 FR 1677), we requested that all interested parties submit written comments by March 7, 2017. On June 13, 2017 (82 FR 27033), we reopened the comment period for 30 days in order to give all interested parties further opportunity to comment on the proposed rule. We received 16 comment letters on the proposed reclassification of E. f. var. kuenzleri. All substantive comments are either incorporated directly into this rule or the SSA Report, or are addressed below.

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent expert opinion on the SSA Report (Service 2017, entire) from five individuals with scientific and conservation expertise that included familiarity with E. f. var. kuenzleri and its habitat, biological needs, and threats to the species. We received responses from four of the five peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the status of E. f. var. kuenzleri. All substantive information provided during peer review is either incorporated directly into this rule or the SSA Report, or is addressed below.

    Peer Review Comments

    Comment: Several commenters raised concerns about the population estimate provided in the SSA Report. These comments questioned the population density values, the minimal ground truthing associated with the population estimate, and the level of uncertainty in the population estimation. According to the commenters, these factors led to an over-estimation of population numbers.

    Response: We acknowledge that there is some uncertainty in the population estimate. However, this estimate was based on the best scientific and commercial data available. We consider the model-based population estimate to be reasonably conservative as described in the SSA Report. As part of continuing recovery efforts, we will work with Bureau of Land Management (BLM), U.S. Forest Service (USFS), and private landowners to further ground-truth the habitat model and refine the density and population estimates, as appropriate, and to incorporate changes into an updated recovery plan.

    Comment: One commenter pointed out that fire regime data for E. f. var. kuenzleri habitat are lacking and not supportive of prescribed fire to manage fuel loads.

    Response: We discuss the role of fire and assess its effects to the species in the SSA Report (Service 2017, p. 17) based on the best scientific and commercial data available. Overall, we believe additional prescribed fire would be beneficial to the species and reduce the risk of catastrophic fires. The commenter did not provide additional fire regime information to incorporate into our analysis.

    Comment: One commenter raised concerns about the inclusion of asynchronous flowering (flowers not blooming at the same time) as a threat.

    Response: Inclusion of this threat in the SSA Report was based on preliminary anecdotal information that asynchronous flowering may be occurring in the species and this might affect reproductive success. We found no substantive data that this is a threat. Based on this comment and additional analysis by the Service, we revised the SSA Report to remove discussion of asynchronous flowering as a threat.

    Comment: Several commenters raised concern about readers potentially using the modeled population estimate out of context or scope.

    Response: In the SSA Report, we clearly describe the scope and intent of the information provided in the habitat model used to estimate a reasonably conservative population estimate, with a disclaimer against improper use of the model.

    Public Comments

    Comment: Multiple commenters raised concerns about insufficient information and data provided to justify the downlisting of E. f. var. kuenzleri. For example, some commenters suggested that population trend data do not support a downlisting decision. Several comments raised concerns about climate change and drought as a significant threat to the species. In addition, several commenters raised concerns about livestock grazing, fire, and invasive species as significant threats to the plant, and stated that there are insufficient data on threats, as well as threats not having been fully analyzed.

    Response: Based on the 5-year reviews and the SSA Report, we found E. f. var. kuenzleri is more widespread and numerous than when listed and conclude that it no longer meets the Act's definition of endangered. At the same time, we conclude that, based on threats continuing to impact the species, the species is likely to become in danger of extinction in the foreseeable future and, therefore, it should be reclassified as threatened.

    We acknowledge in the SSA Report that the population trend data are limited. For this reason, we reviewed all available scientific and commercial data to help determine if the species is at risk of extinction in the foreseeable future. Based on available survey, observation, and trend data, and current and projected threats, we determine that E. f. var. kuenzleri is more widespread and numerous than when listed. Additionally, in our proposed rule and SSA Report (Service 2017, entire), we analyzed the biological and habitat requirements, threats, and viability of E. f. var. kuenzleri and found the species to have sufficient resiliency, redundancy, and representation. We also analyzed the climate change models specific to the occupied area (Service 2017, p. 20). This analysis was included in our overall assessment of the species' risk of extinction.

    Comment: One commenter stated that downlisting should exempt the species from the take prohibition; application of the take prohibition to all threatened species is contrary to the text and purpose of the Act.

    Response: With respect to threatened plants, 50 CFR 17.71(a) provides that all of the provisions in 50 CFR 17.61 shall apply to threatened plants, with one exception discussed below. We have concluded that no modifications to these prohibitions are appropriate for this species because there is continued threat of collection.

    These provisions make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. However, there is the following exception for threatened plants: Seeds of cultivated specimens of species treated as threatened shall be exempt from all the provisions of 50 CFR 17.61, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container during the course of any activity otherwise subject to these regulations. Exceptions to these prohibitions are outlined in 50 CFR 17.72.

    We may issue permits to carry out otherwise prohibited activities involving threatened plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.72. With regard to threatened plants, a permit issued under this section must be for one of the following: Scientific purposes, the enhancement of the propagation or survival of threatened species, economic hardship, botanical or horticultural exhibition, educational purposes, or other activities consistent with the purposes and policy of the Act.

    Comment: One commenter stated that the plant may merit being delisted from the Federal List of Endangered and Threatened Plants entirely. Another comment suggested that delisting criteria must be developed.

    Response: Our SSA Report analyzes the biological and habitat requirements, threats, and viability of E. f. var. kuenzleri (Service 2017, entire), and found that threats still exist to the species. As such, we concluded that the species is likely to be at risk of extinction in the foreseeable future. The Service anticipates establishing delisting criteria and recovery actions based on the best scientific and commercial data available and information in the SSA Report. Information in the SSA Report supports our decision to reclassify E. f. var. kuenzeleri to a threatened species.

    Comment: Several commenters raised concerns about the outdated recovery plan. Alternatively, others commenters stated that the downlisting criteria in the recovery plan have not been met.

    Response: We acknowledge the 1985 Recovery Plan that was developed according to guidance at the time, which includes biological factors, conservation measures, and threats (Service 1985, entire), does not conform to all current standards and guidance for recovery planning, as was recognized in the 2016 5-year review of this species (Service 2016, p. 6). The Service intends to develop an updated recovery plan in fiscal year 2019 with delisting criteria and recovery actions based on the SSA Report and any new information that may become available from monitoring and research.

    While meeting the recovery criteria is not required for reclassification, we considered the applicable criteria in this determination. The criteria for downlisting to “threatened” in the Recovery Plan are: (1) To secure and maintain a wild population level of 5,000 individual plants for a period of 5 consecutive years, and (2) to remove the collecting pressure by promoting commercial propagation (Service 1985, pp. iii, 21). In the 2016 5-year review, 11 populations with 4,330 plants had been observed (1976-2015) (Service 2016, pp. 3-4). In the SSA Report, based on the best scientific and commercial data available, we estimate a current population estimate of 11,000-20,000 individuals (Service 2017, p. 13). We consider this a conservative estimate. Also, a large area of suitable habitat has been identified that has not been surveyed.

    Comment: Several commenters recommended that it would be appropriate to designate critical habitat for this cactus.

    Response: The Service analyzed designating critical habitat in the listing rule (44 FR 61924, October 26, 1979, see p. 61926). The listing rule found it was not prudent to determine critical habitat because publication of critical habitat maps would make this species more vulnerable to taking. The plant has been and continues to be threatened by illegal collection (44 FR 61924, October 26, 1979; Service 2017, p. 19). Publication of designated critical habitat has the potential to make the species more vulnerable to collection by highlighting occupied locations; therefore, it remains inappropriate to designate critical habitat.

    Comment: One commenter stated that the taxonomic status of the species has not been definitively settled.

    Response: Although there is scientific debate regarding the classification of Echinocereus fendleri Englemann variety kuenzleri (Integrated Taxonomic Information System, http://www.itis.gov, accessed December 1, 2017), we conclude that the most recent taxonomic examinations by Baker (2007, entire), and Felix et al. (2014, entire) constitute the best available taxonomic information, and maintain the species at its current taxonomic level. We are planning to conduct a genetic study to help resolve the taxonomy of this cactus (Service 2014, p. 44).

    Comment: Another commenter indicated that prescribed fires have a high potential to negatively impact these cacti and their reproductive potential.

    Response: The threat of fire was analyzed in the January 6, 2017, proposed rule (82 FR 1677) and the SSA Report. Wester and Britton (2007, p. 11) studied the effect of prescribed burns as a means of reducing wildfire risk, and found no evidence that the species was negatively affected by prescribed fire because of the lower burn intensity. The comment does not offer additional scientific information to alter the conclusions in the SSA Report related to prescribed fire as a threat to the species.

    Comment: Several comments raised concerns about distribution, abundance, and viability of the species' population. For example, some commenters suggested that without comprehensive rangewide surveys, the full extent and abundance of the species cannot be determined. Several comments raised concerns about the absence of trend data. In addition, a commenter raised concerns about the viability of the known populations.

    Response: We analyzed in our January 6, 2017, proposed rule (82 FR 1677) and SSA Report (Service 2017, entire) the biological and habitat requirements, threats, and viability of E. f. var. kuenzleri and found the species to have: A population size necessary to endure stochastic environmental variation; the number and geographic distribution of populations or sites necessary to endure catastrophic events; and the ecological diversity, both within and among populations, necessary to conserve long-term adaptive capability in its current populations. As required by the Act, we have based the SSA Report and this reclassification decision on the best available scientific and commercial data.

    Comment: One commenter stated that inadequate regulatory mechanisms fail to direct adequate resources towards sufficient documentation of the species' status.

    Response: The comment does not identify what additional regulatory mechanisms would potentially offset an identified threat to the species. As required by the Act, we have based the SSA Report and this reclassification decision on the best available scientific and commercial data. We plan on developing a monitoring plan with our partners (BLM and USFS) to obtain additional information to further inform the species' status and development of delisting criteria (Service 2017, p. 44).

    Comment: One commenter indicated that there is a need to fill data gaps by developing monitoring and research studies.

    Response: In our SSA Report (Service 2017, entire), we acknowledge the need for a quantitative monitoring program, sufficient demographic information to complete a population viability analysis, and genetic analysis. We anticipate working with land management agencies to develop a comprehensive habitat management plan, establish a monitoring plan, and conduct genetic research for this species (Service 2017, p. 44).

    Comment: One commenter raised the concern that limited distribution, range, and population size makes the species vulnerable to stochastic events.

    Response: We analyzed in our January 6, 2017, proposed rule (82 FR 1677) and SSA Report (Service 2017, entire) the biological and habitat requirements, threats, and viability of E. f. var. kuenzleri and found the species to have: A population size necessary to endure stochastic environmental variation; the number and geographic distribution of populations or sites necessary to endure catastrophic events; and the ecological diversity, both within and among populations, necessary to conserve long-term adaptive capability in its current populations. As required by the Act, we have based the SSA Report and this reclassification decision on the best available scientific and commercial data.

    Summary of Changes From the Proposed Rule

    We have made no meaningful changes from the January 6, 2017, proposed rule (82 FR 1677). We have made updates to the final SSA Report based on information contained in peer review and public comments.

    Reclassification Analysis

    Under section 4 of the Act, we administer the Federal Lists of Endangered and Threatened Wildlife and Plants, which are set forth in title 50 of the Code of Federal Regulations at part 17 (50 CFR 17.11 and 17.12). We can determine, on the basis of the best scientific and commercial data available, whether a species may be listed, delisted, or reclassified as described in 50 CFR 424.11.

    The determination of whether a species is endangered or threatened under the Act is based on if a species is in danger of extinction or likely to become so in the foreseeable future because of any one or a combination of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of this plant and assessed the five factors to evaluate whether E. f. var. kuenzleri is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats to E. f. var. kuenzleri.

    In considering factors that might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species responds to the factor in a way that causes impacts to the species or is likely to cause impacts in the future. If a species responds negatively to such exposure, the factor may be a threat and, during the status review, our aim is to determine whether impacts are or will be of an intensity or magnitude to place the species at risk. The factor is a threat if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. In sum, the mere identification of factors that could affect a species negatively is not sufficient to compel a finding that reclassification is appropriate; we require evidence that these factors act on the species to the point that the species meets the definition of an endangered or threatened species.

    Using the SSA framework, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the species and considered what E. f. var. kuenzleri needs to maintain viability. As a result of recent information, we know that there are 11 known populations of E. f. var. kuenzleri compared to only 2 that were known at the time of listing. Individual cacti are spread across a wide range of suitable habitat patches. Significant impacts at the time of listing such as overcollection or residential development that could have resulted in the extirpation of all or parts of populations have been reduced since listing. The long-term impacts of wildfire, livestock grazing, effects of climate change (Factor A), illicit collection (Factor B), and small population size and density (Factor E) throughout the range of the species were assessed in our SSA Report. Data indicate an increase in temperature (6-8 percent), a decrease in precipitation (-2 percent) and a substantial increase in evapotranspiration deficit (18-29 percent) within the occupied range of E. f. var. kuenzleri over the next 50 years (Service 2018, entire). We anticipate that effects due to climate change (such as a decrease in precipitation and a substantial increase in evapotranspiration deficit), fire, and increased drought, and the compounding effects of these threats, including any associated threats such as increased herbivory and predation will impact all of the populations in the foreseeable future. The New Mexico threatened and endangered plant regulations also do not protect E. f. var. kuenzleri or its habitats on private lands, with the exception of plant collection not authorized by the landowner (Factor D). We chose 50 years as the foreseeable future to evaluate what is likely to occur within the range of the available climate change model forecasts.

    Determination of Status Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, the species is an “endangered species.” The same analysis applies to “threatened species.”

    The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any one or a combination of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. These five factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

    Determination of Status Throughout All of Its Range

    As required by the Act, we carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to E. f. var. kuenzleri. Based on the analysis in the SSA Report, and information summarized above, we have determined that E. f. var. kuenzleri's current viability is higher than was known at the time of listing, and we find that E. f. var. kuenzleri is no longer in danger of extinction throughout all of its range. However, threats from wildfire, livestock grazing, effects of climate change (Factor A), illicit collection (Factor B), and small population size and density (Factor E) continue, despite the existing regulatory mechanisms (Factor D) and conservation efforts. Therefore, we find that E. f. var. kuenzleri is likely to become endangered within the foreseeable future throughout all of its range.

    Determination of Status Throughout a Significant Portion of Its Range

    Because we found that E. f. var. kuenzleri is likely to become in danger of extinction in the foreseeable future throughout all of its range, per the Service's Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578, July 1, 2014) (SPR Policy), no portion of the species' range can be “significant” for the purposes of the definitions of endangered and threatened species. Therefore, we do not need to conduct an analysis of whether there is any significant portion of its range because the species is likely to become in danger of extinction in the foreseeable future.

    Conclusion

    In conclusion, the previously recognized impacts to E. f. var. kuenzleri from the present or threatened destruction, modification, or curtailment of its habitat or range (specifically, residential development and road maintenance) (Factor A); overutilization for commercial, recreational, scientific, or educational purposes (Factor B); disease or predation (Factor C); and other natural or manmade factors affecting its continued existence (specifically, reproductive isolation) (Factor E) do not, either individually or in combination, currently place the species in danger of extinction. However, due to continued threats from wildfire, livestock grazing, effects of climate change (Factor A), illicit collection (Factor B), and small population size and density (Factor E), despite the existing regulatory mechanisms (Factor D) and conservation efforts, we find that E. f. var. kuenzleri is likely to become endangered within the foreseeable future throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we are reclassifying E. f. var. kuenzleri as a threatened species in accordance with section 4(a)(1) of the Act.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. As we revise the recovery plan to include delisting criteria, the recovery outline, draft revised recovery plan, and the final recovery plan will be made available on our website (http://www.fws.gov/endangered), or from our New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and re-introduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

    Funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants. Please let us know if you are interested in participating in recovery efforts for E. f. var. kuenzleri. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include issuance of Federal permits. With respect to threatened plants, 50 CFR 17.71 provides that all of the provisions in 50 CFR 17.61 shall apply to threatened plants. These provisions make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. However, there is the following exception for threatened plants. Seeds of cultivated specimens of species treated as threatened shall be exempt from all the provisions of 50 CFR 17.61, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container during the course of any activity otherwise subject to these regulations. Exceptions to these prohibitions are outlined in 50 CFR 17.72.

    We may issue permits to carry out otherwise prohibited activities involving threatened plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.72. With regard to threatened plants, a permit issued under this section must be for one of the following: Scientific purposes, the enhancement of the propagation or survival of threatened species, economic hardship, botanical or horticultural exhibition, educational purposes, or other activities consistent with the purposes and policy of the Act.

    Under section 4(d) of the Act, the Secretary has discretion to issue protective regulations to provide for the conservation of threatened species. Our implementing regulations (50 CFR 17.71) for threatened plants generally incorporate the prohibitions of section 9 of the Act for endangered plants, except when a rule promulgated pursuant to section 4(d) of the Act has been issued with respect to a particular threatened species. In such a case, the general prohibitions in 50 CFR 17.61 would not apply to that species, and instead, the 4(d) rule would define the specific prohibitions and exceptions that would apply for that particular threatened species. With respect to a threatened plant, the Secretary of the Interior also has the discretion to prohibit by regulation any act prohibited by section 9(a)(2) of the Act. Exercising this discretion, which has been delegated to the Service by the Secretary, the Service has developed general prohibitions that are appropriate for most threatened species at 50 CFR 17.71 and exceptions to those prohibitions at 50 CFR 17.72. We have determined to not promulgate a rule under section 4(d) of the Act for E. f. var. kuenzleri, and as a result, all of the Act's section 9(a)(2) general prohibitions, including the “take” prohibitions, will continue to apply to E. f. var. kuenzleri when this rule goes into effect.

    It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements this list is not comprehensive:

    (1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

    (2) Normal residential landscape activities.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Effects of This Rule

    This rule revises 50 CFR 17.12(h) to reclassify E. f. var. kuenzleri from endangered to threatened on the List of Endangered and Threatened Plants. On the effective date of this rule (see DATES, above), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, continue to apply to E. f. var. kuenzleri. Federal agencies are required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect E. f. var. kuenzleri.

    As applicable, recovery actions directed at E. f. var. kuenzleri will continue to be implemented as outlined in the recovery plan for this taxon (Service 1985, entire). One of the primary actions will be to develop revised recovery plan with delisting criteria for the cactus based on the SSA Report (Service 2017, p. 44).

    Required Determinations National Environmental Policy Act

    We determined we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of all references cited in this rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137, or upon request from the Field Supervisor, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary author of this rule is the New Mexico Ecological Services Field Office Southwest Regional Office in Albuquerque, New Mexico, in coordination with the Southwest Regional Office in Albuquerque, New Mexico (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.

    2. Amend § 17.12(h) by revising the entry for “Echinocereus fendleri var. kuenzleri” under FLOWERING PLANTS in the List of Endangered and Threatened Plants to read as follows:
    § 17.12 Endangered and threatened plants.

    (h) * * *

    Scientific name Common name Where listed Status Listing citations and applicable rules FLOWERING PLANTS *         *         *         *         *         *         * Echinocereus fendleri var. kuenzleri Kuenzler hedgehog cactus Wherever found T 44 FR 61924, 10/26/1979; 83 FR [Insert Federal Register page where the document begins], 5/11/2018. *         *         *         *         *         *         *
    Dated: May 1, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director U.S. Fish and Wildlife Service.
    [FR Doc. 2018-10034 Filed 5-10-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 150121066-5717-02] RIN 0648-XG216 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY:

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

    ACTION:

    Temporary rule; inseason General category retention limit adjustment.

    SUMMARY:

    NMFS is adjusting the Atlantic bluefin tuna (BFT) General category daily retention limit from the default limit of one large medium or giant BFT to three large medium or giant BFT for June 1 through August 31, 2018. This action is based on consideration of the regulatory determination criteria regarding inseason adjustments and applies to Atlantic Tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat category permitted vessels with a commercial sale endorsement when fishing commercially for BFT.

    DATES:

    Effective June 1, 2018, through August 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Sarah McLaughlin or Brad McHale, (978) 281-9260.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments, and in accordance with implementing regulations. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

    The current baseline U.S. quota is 1,058.9 mt (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). See § 635.27(a). The current baseline General category quota is 466.7 mt. Each of the General category time periods (“January,” June through August, September, October through November, and December) is allocated a portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. The current baseline subquotas for each time period are as follows: 24.7 mt (5.3 percent) for January; 233.3 mt (50 percent) for June through August; 123.7 mt (26.5 percent) for September; 60.7 mt (13 percent) for October through November; and 24.3 mt (5.2 percent) for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods. This action would adjust the daily retention limit for the second time period in 2018, June through August.

    Although the 2017 ICCAT recommendation regarding western Atlantic bluefin tuna management would result in an increase to the baseline U.S. bluefin tuna quota (i.e., from 1,058.79 mt to 1,247.86 mt) and subquotas for 2018 (including an expected increase in General category quota from 466.7 mt to 555.7 mt, consistent with the annual bluefin tuna quota calculation process established in § 635.27(a)), domestic implementation of that recommendation will take place in a separate rulemaking, likely to be finalized in mid-2018.

    Adjustment of General Category Daily Retention Limit

    Unless changed, the General category daily retention limit starting on June 1 would be the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip (§ 635.23(a)(2)). This default retention limit would apply to General category permitted vessels and to HMS Charter/Headboat category permitted vessels when fishing commercially for BFT.

    Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8). NMFS has considered these criteria and their applicability to the General category BFT retention limit for June through August 2018. These considerations include, but are not limited to, the following:

    Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers continue to provide NMFS with valuable data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the collection of a broad range of data for these studies and for stock monitoring purposes.

    NMFS also considered the catches of the General category quota to date (including landings and catch rates during the last several years) and the likelihood of closures for the General category if no adjustment is made (§ 635.27(a)(8)(ii)). Commercial-size BFT are anticipated to migrate to the fishing grounds off the northeast U.S. coast by early June. Based on General category catch rates during the June through August time period over the last several years, it is unlikely that the June through August subquota will be filled with the default daily retention limit of one BFT per vessel. NMFS set the June through August 2017 time period limit at four fish initially and reduced it to one fish effective August 5 through August 16, when NMFS closed the fishery until the start of the September 2017 quota subperiod. Due to a combination of fish availability and extremely favorable fishing conditions, NMFS needed to close the General category fishery in each of the subquota time periods (September, October-November, and December) to allow for harvest of the subsequent subquotas without exceeding the adjusted General category quota while simultaneously maintaining equitable distribution of fishing opportunities. NMFS is setting the June through August 2018 limit in such a way that NMFS believes, informed by past experience, increases the likelihood that the fishery will remain open throughout the subperiod and year.

    NMFS also considered the effects of the adjustment on BFT rebuilding and overfishing and the effects of the adjustment on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). The adjusted retention limit would be consistent with the established quotas and with objectives of the 2006 Consolidated HMS FMP and amendments and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents. It is also important that NMFS limit landings to the subquotas both to adhere to the FMP quota allocations and to ensure that landings are as consistent as possible with the pattern of fishing mortality (e.g., fish caught at each age) that was assumed in the projections of stock rebuilding.

    Another principal consideration in setting the retention limit is the objective of providing opportunities to harvest the full General category quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations (related to § 635.27(a)(8)(x)). Adjustment of the retention limit is also supported by the Environmental Analysis for the 2011 final rule regarding General and Harpoon category management measures, which increased the General category maximum daily retention limit from three to five fish.

    Despite elevated General category limits, the vast majority of successful trips (i.e., General or Charter/Headboat trips on which at least one BFT is landed under General category quota) land only one or two BFT. For instance, the landings data for 2017 show that, under the four-fish limit that applied June 1 through August 4, the proportion of trips that landed one, two, three, or four bluefin tuna was as follows: 68 percent landed one; 20 percent landed two; 6 percent landed three; and 6 percent landed four. In the last few years, NMFS has received conflicting comments that a high daily retention limit (specifically five fish) is needed to optimize General category fishing opportunities and account for seasonal distributions by enabling vessels to make overnight trips to distant fishing grounds. Others have noted that a higher General category limit at the start of the June-August period would reduce the likelihood of effort shifting into the Harpoon category, which has a relatively small quota. NMFS also has received general comment that a lower limit increases the likelihood that opportunities will extend through the late fall and the end of the calendar year, as well as improve market conditions. Requests also will vary depending on actual fish behavior, weather, and availability (i.e., abundance and proximity to shore) in any given year.

    NMFS anticipates that some underharvest of the 2017 adjusted U.S. BFT quota will be carried forward to 2018 to the Reserve category, in accordance with the regulations, this summer when complete BFT catch information for 2017 is available and finalized. Because such quota would be available to be transferred from the Reserve category to the General category, and such transfers have occurred in the past, the carryover of underharvest would make it more likely that General category quota will remain available through the end of 2018 for December fishery participants, despite the transfer of 14.3 mt from the 24.3-mt General category December 2018 subquota period to the January 2018 period (81 FR 91873, December 19, 2016). General category landings were relatively high in the summer and fall of 2017, due to a combination of fish availability, favorable fishing conditions, and higher daily retention limits. NMFS transferred 156.4 mt from the Reserve category (82 FR 46000, October 3, 2017) and later transferred another 25.6 mt from the Harpoon category (82 FR 55520, November 22, 2017). Although NMFS needed to close the September and the October-November fisheries effective September 17 and October 5, respectively, to prevent further overharvest of the adjusted 2017 General category subquotas, NMFS anticipates that General category participants in all areas and time periods will have opportunities to harvest the General category quota in 2018, through more proactive inseason management such as retention limit adjustments and/or the timing and amount of quota transfers (based on consideration of the determination criteria regarding inseason adjustments), as practicable. NMFS will closely monitor General category catch rates associated with the various authorized gear types (e.g., harpoon, rod and reel) during the June through August period and actively adjust the daily retention limit as appropriate to enhance scientific data collection from, and ensure fishing opportunities in all respective time-period subquotas as well as ensure available quota is not exceeded.

    A limit lower than three fish at the start of the June through August period could result in diminished fishing opportunities for those General category vessels using harpoon gear based on past fish behavior early in the season. Lower limits may also result in effort shifts from the General category to the Harpoon category, which could result in premature closure of the Harpoon category, and potentially additional inseason adjustments. General category harpoon gear participants land approximately five percent of the General category landings each year and these landings occur early in the season. A three-fish retention limit for an appropriate period of time will provide a greater opportunity to harvest the June through August subquota with harpoon gear without exceeding it while also maintaining equitable distribution of fishing opportunities for harpoon and rod and reel participants. NMFS also considered general input on 2018 General category limits from the HMS Advisory Panel at its March 2018 meeting. Based on these considerations, we have determined that a three-fish General category retention limit is warranted for the beginning of the June-August 2018 subquota period. These retention limits are effective in all areas, except for the Gulf of Mexico, where targeted fishing for bluefin tuna is prohibited.

    Based on these considerations, NMFS has determined that a three-fish General category retention limit is warranted for the June-August 2018 subquota period. This limit would provide a reasonable opportunity to harvest the full U.S. BFT quota (including the expected increase in available 2018 quota based on 2017 underharvest), without exceeding it, while maintaining an equitable distribution of fishing opportunities; help optimize the ability of the General category to harvest its full quota; allow the collection of a broad range of data for stock monitoring purposes; and be consistent with the objectives of the 2006 Consolidated HMS FMP and amendments. Therefore, NMFS increases the General category retention limit from the default limit (one) to three large medium or giant BFT per vessel per day/trip, effective June 1, 2018, through August 31, 2018.

    Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example (and specific to the June through August 2018 limit), whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of four fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, where NMFS prohibits targeting fishing for BFT, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT fishing commercially for BFT. For information regarding the HMS Charter/Headboat commercial sale endorsement, see 82 FR 57543, December 6, 2017.

    Monitoring and Reporting

    NMFS will actively monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. In addition, General and HMS Charter/Headboat vessel owners are required to report their own catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov or by using the Android or iPhone app. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

    Classification

    The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

    The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. The timing of this rulemaking will allow approximately two weeks' prior notice to the regulated community. Affording additional prior notice and an opportunity for public comment on the change in the daily retention limit from the default level for the June through August 2018 subquota period would be impracticable. Based on available BFT quotas, fishery performance in recent years, and the availability of BFT on the fishing grounds, responsive adjustment to the General category BFT daily retention limit from the default level is warranted to allow fishermen to take advantage of availability of fish and of quota. NMFS could not have proposed these actions earlier, as it needed to consider and respond to updated data and information about fishery conditions and this year's landings. If NMFS was to offer a public comment period now, after having appropriately considered that data, it would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria, and/or could result in selection of a retention limit inappropriate to the amount of quota available for the period.

    Fisheries under the General category daily retention limit will commence on June 1 and thus prior notice would be contrary to the public interest. Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may result in low catch rates and quota rollovers. Analysis of available data shows that adjustment to the BFT daily retention limit from the default level would result in minimal risks of exceeding the ICCAT-allocated quota. NMFS provides notification of retention limit adjustments by publishing the notice in the Federal Register, emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on hmspermits.noaa.gov. With quota available and fish available on the grounds, and with no expected impacts to the stock, it would be contrary to the public interest to require vessels to wait to harvest the additional fish allowed through this action. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment.

    Adjustment of the General category retention limit needs to be effective June 1, 2018, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns, to allow the impacted sectors to benefit from the adjustment, and to not preclude fishing opportunities for fishermen in geographic areas with access to the fishery only during this time period. Foregoing opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the time periods designated in the 2006 Consolidated HMS FMP and amendments. Therefore, the AA finds there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

    This action is being taken under § 635.23(a)(4) and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 971 et seq. and 1801 et seq.

    Dated: May 7, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09960 Filed 5-8-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 120416010-2476-01] RIN 0648-XG160 Pacific Island Fisheries; Closure of the 2018 Hawaii Shallow-Set Longline Fishery; Court Order AGENCY:

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

    ACTION:

    Temporary rule; fishery closure.

    SUMMARY:

    This final rule closes the Hawaii shallow-set pelagic longline fishery in compliance with an order of the U.S. District Court for the District of Hawaii.

    DATES:

    Effective May 8, 2018, through December 31, 2018.

    Compliance date: May 4, 2018, through December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Bob Harman, NMFS PIR, 808-725-5170.

    SUPPLEMENTARY INFORMATION:

    In a January 30, 2012, NMFS completed a biological opinion (BiOp) on the effects of the Hawaii shallow-set longline fishery, pursuant to the Endangered Species Act (ESA). In the BiOp, NMFS concluded that the continued operation of the Hawaii shallow-set fishery, as managed under the regulatory framework of the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP), was not likely to jeopardize the continued existence of any ESA-listed species, or result in destruction or adverse modification of designated critical habitat.

    The BiOp established an annual incidental take statement authorizing the fishery to interact with up to 26 leatherback and 34 loggerhead sea turtles. Consistent with the BiOp, NMFS revised its regulations establishing annual limits on allowable incidental interactions between the fishery and leatherback and North Pacific loggerhead sea turtles (77 FR 60638, October 4, 2012, codified at 50 CFR 665.813). If the fishery reaches either of the interaction limits in a given year, the regulations require NMFS to close the fishery for the remainder of the calendar year.

    In the U.S. District Court of Hawaii, several plaintiffs challenged, among other things, the NMFS final rule that revised the annual sea turtle interaction limits, and the Court ruled in favor of NMFS on all claims (see Turtle Island Restoration Network, et al. v. U.S. Dept. of Commerce, et al., (U.S.D.C. 2013), Civil No. 12-00594). Plaintiffs appealed the Court's decision and, on December 27, 2017, a U.S Ninth Circuit Court of Appeals panel issued a split decision affirming the NMFS BiOp regarding leatherback sea turtles, but holding that NMFS was arbitrary and capricious in its no-jeopardy determination for North Pacific loggerhead turtles (see Turtle Island Restoration Network, et al. v. U.S. Dept. of Commerce, et al., 878 F.3d 725 (9th Cir. 2017)).

    All parties agreed to settle the case pursuant to the terms outlined in a May 4, 2018, Stipulated Settlement Agreement and Court Order. As part of the agreement, the U.S. District Court for the District of Hawaii ordered NMFS to take several actions, including closing the Hawaii shallow-set longline fishery through December 31, 2018. This rule implements the Court order to close the Hawaii shallow-set longline fishery through December 31, 2018.

    Classification

    The Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the Court order, the Magnuson-Stevens Fishery Conservation and Management Act, the Endangered Species Act, and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    NMFS has good cause under the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to waive prior notice and comment and 30 days delayed effectiveness for this temporary rule. The Court Order, in relevant parts, vacates that portion of the 2012 Biological Opinion that relates to North Pacific loggerheads, and requires NMFS to immediately close the Hawaii shallow-set longline fishery until the end of 2018. Under the ESA, NMFS may not continue to authorize the shallow-set longline fishery until the consultation requirements of ESA section 7(a)(2) have been satisfied. Accordingly, providing the public with prior notice and comment rule would be contrary to the public interest because NMFS is required to immediately close the fishery to prevent further impacts to North Pacific loggerhead sea turtles while it completes the new biological opinion. In addition, providing prior notice and comment and 30 days delayed effectiveness are unnecessary because NMFS has no discretion to take other action that is inconsistent with any term of the Court Order.

    In addition, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act (5 U.S.C. 603-605) do not apply to this rule. Furthermore, because the changes identified in this rule are required by the Court Order and non-discretionary, the National Environmental Policy Act does not apply to this rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 8, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-10096 Filed 5-8-18; 4:15 pm] BILLING CODE 3510-22-P
    83 92 Friday, May 11, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Doc. No. AMS-SC-17-0071; SC18-930-1 PR] Tart Cherries Grown in the States of Michigan, et al.; Free and Restricted Percentages for the 2017-18 Crop Year for Tart Cherries AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Cherry Industry Administrative Board (Board) to establish free and restricted percentages for the 2017-18 crop year under the Marketing Order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. This action would establish the proportion of tart cherries from the 2017 crop which may be handled in commercial outlets. This action should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns.

    DATES:

    Comments must be received by June 11, 2018.

    ADDRESSES:

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

    FOR FURTHER INFORMATION CONTACT:

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

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

    SUPPLEMENTARY INFORMATION:

    This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin. Part 930 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member.

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

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order provisions now in effect, free and restricted percentages may be established for tart cherries handled during the crop year. This proposed rule would establish free and restricted percentages for tart cherries for the 2017-18 crop year, beginning July 1, 2017, through June 30, 2018.

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

    This proposed rule invites comments on the establishment of free and restricted percentages for the 2017-18 crop year. This proposal would establish the proportion of tart cherries from the 2017 crop which may be handled in commercial outlets at 69 percent free and 31 percent restricted. The Secretary has determined that designating free and restricted percentages of tart cherries for the 2017 crop year would effectuate the declared policy of the Act to stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The final percentages were recommended by the Board at a meeting on September 14, 2017, and have been designated by the Secretary of Agriculture (Secretary).

    Section 930.51(a) provides the Secretary authority to regulate volume by designating free and restricted percentages for any tart cherries acquired by handlers in a given crop year. Section 930.50 prescribes procedures for computing an optimum supply based on sales history and for calculating these free and restricted percentages. Free percentage volume may be shipped to any market, while restricted percentage volume must be held by handlers in a primary or secondary reserve, or be diverted or used for exempt purposes as prescribed in §§ 930.159 and 930.162. Exempt purposes include, in part, the development of new products, sales into new markets, the development of export markets, and charitable contributions. Sections 930.55 through 930.57 prescribe procedures for inventory reserve. For cherries held in reserve, handlers would be responsible for storage and would retain title of the tart cherries.

    Under § 930.52, only districts with an annual average production over the prior three years of at least six million pounds are subject to regulation, and any district producing a crop that is less than 50 percent of its annual average of the previous five years is exempt. The regulated districts for the 2017-2018 crop year would be: District 1—Northern Michigan; District 2—Central Michigan; District 3—Southern Michigan; District 4—New York; District 7—Utah; District 8—Washington; and District 9—Wisconsin. Districts 5 and 6 (Oregon and Pennsylvania, respectively) would not be regulated for the 2017-18 season.

    Demand for tart cherries and tart cherry products tends to be relatively stable from year to year. Conversely, annual tart cherry production can vary greatly. In addition, tart cherries are processed and can be stored and carried over from crop year to crop year, further impacting supply. As a result, supply and demand for tart cherries are rarely in balance.

    Because demand for tart cherries is inelastic, total sales volume is not very responsive to changes in price. However, prices are very sensitive to changes in supply. As such, an oversupply of cherries would have a sharp negative effect on prices, driving down grower returns. Aware of this economic relationship, the Board focuses on using the volume control provisions in the Order to balance supply and demand to stabilize industry returns.

    Pursuant to § 930.50, the Board meets on or about July 1 to review sales data, inventory data, current crop forecasts, and market conditions for the upcoming season and, if necessary, to recommend preliminary free and restricted percentages if anticipated supply would exceed demand. After harvest is complete, but no later than September 15, the Board meets again to update its calculations using actual production data, consider any necessary adjustments to the preliminary percentages, and determine if final free and restricted percentages should be recommended to the Secretary.

    The Board uses sales history, inventory, and production data to determine whether there is a surplus and, if so, how much volume should be restricted to maintain optimum supply. The optimum supply represents the desirable volume of tart cherries that should be available for sale in the coming crop year. Optimum supply is defined as the average free sales of the prior three years plus desirable carry-out inventory. Desirable carry-out is the amount of fruit needed by the industry to be carried into the succeeding crop year to meet market demand until the new crop is available. Desirable carry-out is set by the Board after considering market circumstances and needs. Section 930.151(b) specifies that desirable carry-out can range from zero to a maximum of 100 million pounds.

    In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. This requirement is codified in § 930.50(g), which specifies that in years when restricted percentages are established, the Board shall make available tonnage equivalent to an additional 10 percent of the average sales of the prior three years for market expansion (market growth factor).

    After the Board determines optimum supply, desirable carry-out, and market growth factor, it must examine the current year's available volume to determine whether there is an oversupply situation. Available volume includes carry-in inventory (any inventory available at the beginning of the season) along with that season's production. If production is greater than the optimum supply minus carry-in, the difference is considered surplus. This surplus tonnage is divided by the sum of production in the regulated districts to reach a restricted percentage. This percentage must be held in reserve or used for approved diversion activities, such as exports.

    The Board met on June 22, 2017, and computed an optimum supply of 282.4 million pounds for the 2017-18 crop year using the average of free sales for the three previous seasons. Regarding the carry-out value, the Board discussed and considered a range of alternatives. One member suggested a carry-out value of 20 million pounds, approximately one tenth of three years' average annual sales. Last year's carry-out was set at 57 million pounds to cover the three-month gap between calculation of carry-out at the end of one season and the availability of fruit for the next season. One member, advocating for 60 million pounds, noted that a carry-out to supply only three months' worth of cherries makes it difficult for processors to serve their customers. Some Board members stated that in the past two seasons, the recommended carry-out was equivalent to approximately three months' sales but the industry ended up with a higher carry-out than anticipated, which puts downward pressure on prices. After the consideration of the alternatives, the Board determined a carry-out of 45 million pounds would be slightly less than the three-month estimate of 60 million pounds and would supply the industry's needs at the beginning of the next season.

    The Board subtracted the estimated carry-in of 110.5 million pounds from the optimum supply to calculate the production quantity needed from the 2017-18 crop to meet optimum supply. This number, 171.9 million pounds, was subtracted from the Board's estimated 2017-18 total production (from regulated and unregulated districts) of 259 million pounds to calculate a surplus of 87.1 million pounds of tart cherries. The Board also complied with the market growth factor requirement by removing 23.7 million pounds (average sales for prior three years of 237.4 million times 10 percent) from the surplus. The adjusted surplus of 63.1 million pounds was then divided by the expected production in the regulated districts (252 million pounds) minus anticipated orchard diversion (12 million pounds) to reach a preliminary restricted percentage of 26 percent for the 2017-18 crop year.

    The Board then discussed whether this calculation would provide sufficient supply to grow sales and fulfil orders that have not yet shipped, including filling remaining orders from USDA purchases. A motion to make an economic adjustment of five million pounds to adjust for USDA sales failed to receive Board support. After the discussion, the Board's preliminary restricted percentage remained at 26 percent (63 million pounds divided by 240 million pounds).

    The Board met again on September 14, 2017, to consider final volume regulation percentages for the 2017-18 season. The final percentages are based on the Board's reported production figures and the supply and demand information available in September. In September and going forward, the Board revised the formula for calculating free sales. When the three-year sales average was recalculated in September, the revision lowered the sales average to 205 million pounds, which resulted in a revised optimum supply of 250 million pounds.

    The total production for the 2017-18 season was 270.4 million pounds, 11.4 million pounds above the Board's June estimate. In addition, growers diverted 11.7 million pounds in the orchard, leaving 258.7 million pounds available to market, 251.1 million pounds of which are in the restricted districts. Using the actual production numbers, and accounting for the recommended desirable carry-out and economic adjustment, as well as the market growth factor, the restricted percentage was recalculated.

    The Board subtracted the carry-in figure used in June of 110.5 million pounds from the optimum supply of 250 million pounds to determine 139.5 million pounds of 2017-18 production would be necessary to reach optimum supply. The Board subtracted the 139.5 million pounds from the actual production of 270.4 million pounds, resulting in a surplus of 130.9 million pounds of tart cherries. The Board also recommended an economic adjustment to adjust the supply in anticipation of increased sales from market expansion, new markets, and growth from the short crop this season in Europe. The surplus was then reduced by subtracting the economic adjustment of 33 million pounds and the market growth factor of 20.5 million pounds, resulting in an adjusted surplus of 77.4 million pounds. The Board then divided this final surplus by the available production of 251.1 million pounds in the regulated districts (262.8 million pounds minus 11.7 million pounds of in-orchard diversion) to calculate a restricted percentage of 31 percent with a corresponding free percentage of 69 percent for the 2017-18 crop year, as outlined in the following table:

    Millions of pounds Final Calculations: (1) Average sales of the prior three years 205.0 (2) Plus desirable carry-out 45.0 (3) Optimum supply calculated by the Board 250.0 (4) Carry-in as of July 1, 2017 110.5 (5) Adjusted optimum supply (item 3 minus item 4) 139.5 (6) Board reported production 270.4 (7) Surplus (item 6 minus item 5) 130.9 (8) Total economic adjustments 33.0 (9) Market growth factor 20.5 (10) Adjusted Surplus (item 7 minus items 8 and 9) 77.4 (11) Supply in regulated districts 262.8 (12) In-orchard diversion 11.7 (13) Regulated production minus in-orchard diversion 251.1 Percent Final Percentages: Restricted (item 10 divided by item 13 × 100) 31 Free (100 minus restricted percentage) 69

    The primary purpose of setting restricted percentages is an attempt to bring supply and demand into balance. If the primary market is oversupplied with cherries, grower prices decline substantially. Restricted percentages have benefited grower returns and helped stabilize the market as compared to those seasons prior to the implementation of the Order. The Board believes the available information indicates that a restricted percentage should be established for the 2017-18 crop year to avoid oversupplying the market with tart cherries. Consequently, based on its discussion of this issue and the result of the above calculations, the Board recommended final percentages of 69 percent free and 31 percent restricted by a vote of 18 in favor and 1 opposed.

    The initial restriction percentage of 26 percent was lower than the final restriction of 31 percent. One factor affecting this change was the final production numbers that came in above the Board's June estimate. Additionally, in September the Board revised the formula for calculating the three-year sales average, which will be used going forward. The revision in the calculation of the free sales average lowered the sales calculation from the preliminary 237.4 million pounds to the final average of 205 million pounds. The desired carry-out remained the same at 45 million pounds, resulting in a revised optimum supply of 250 million pounds, down from the June calculation of 282.4 million pounds.

    At the Board meeting on September 14, an economic adjustment of 33 million pounds was recommended in the Optimum Supply Formula (OSF). Several members indicated the factors in the marketplace prompted the need to make this economic adjustment to maintain market growth. These factors include serving new and expanded markets, a year over year increase in sales, and the expectation of increased sales as a result of a smaller than normal tart cherry crop in Europe this season.

    One member opposed to the proposed restriction expressed opposition to the definition of sales used in the OSF. In particular, the member expressed concern that the definition of sales is misrepresented by not including imported cherries in the sales average, thus not capturing overall supply and demand. Another member agreed with this concern but did not oppose the proposed OSF calculation.

    A motion was made to re-open the discussion about the OSF and consider an adjustment for imports. However, the motion failed to gain enough support for further discussion. One member indicated that the issue of imports continues to be a top priority for discussion and will be revisited moving forward into the winter season.

    After reviewing the available data and considering the concerns expressed, the Board determined that a 31 percent restriction would meet sales needs and establish some reserves without oversupplying the market. Thus, the Board recommended establishing final percentages of 69 percent free and 31 percent restricted. The Board could meet and recommend the release of additional volume during the crop year if conditions so warranted. The Secretary finds, from the recommendation and supporting information supplied by the Board, that designating final percentages of 69 percent free and 31 percent restricted will tend to effectuate the declared policy of the Act, and so designates these percentages.

    Initial Regulatory Flexibility Analysis

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

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

    There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms have been defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    According to the National Agricultural Statistics Service (NASS) and Board data, the average annual grower price for tart cherries utilized for processing during the 2016-17 season was approximately $0.273 per pound. With total utilization at approximately 323.1 million pounds for the 2016-17 season, the total 2016-17 value of the crop utilized for processing is estimated at $88.2 million. Dividing the crop value by the estimated number of producers (600) yields an estimated average receipt per producer of $147,000. This is well below the SBA threshold for small producers. A free on board (f.o.b.) price of $0.83 per pound for frozen tart cherries, which make up the majority of processed tart cherries, is a good estimate to represent the range of prices reported by the Food Institute during the 2017-2018 season. Multiplying the f.o.b price by total utilization of 323.1 million pounds results in an estimated handler-level tart cherry value of $268 million. Dividing this figure by the number of handlers (40) yields an estimated average annual handler receipts of $6.7 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

    The tart cherry industry in the United States is characterized by wide annual fluctuations in production. According to NASS, the pounds of tart cherry production utilized for processing for the years 2014 through 2016 were 304 million, 253 million, and 329 million, respectively. Because of these fluctuations, supply and demand for tart cherries are rarely equal.

    Demand for tart cherries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, prices are very sensitive to changes in supply, and grower prices vary widely in response to the large swings in annual supply. Grower prices per pound for processed utilization have ranged from a low of $0.073 in 1987 to a high of $0.588 per pound in 2012.

    Because of this relationship between supply and price, oversupplying the market with tart cherries would have a sharp negative effect on prices, driving down grower returns. Aware of this economic relationship, the Board focuses on using the volume control authority in the Order to align supply with demand and stabilize industry returns. This authority allows the industry to set free and restricted percentages as a way to bring supply and demand into balance. Free percentage cherries can be marketed by handlers to any outlet, while restricted percentage volume must be held by handlers in reserve, diverted, or used for exempted purposes.

    This proposal would control the supply of tart cherries by establishing percentages of 69 percent free and 31 percent restricted for the 2017-18 crop year. These percentages should stabilize marketing conditions by adjusting supply to meet market demand and help improve grower returns. The proposal would regulate tart cherries handled in Michigan, New York, Utah, Washington, and Wisconsin. The authority for this proposal is provided in §§ 930.50, 930.51(a), and 930.52. The Board recommended this action at a meeting on September 14, 2017.

    This proposal would result in some fruit being diverted from the primary domestic markets. However, as mentioned earlier, the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (http://www.ams.usda.gov/publications/content/1982-guidelines-fruit-vegetable-marketing-orders) specify that 110 percent of recent years' sales should be made available to primary markets each season before recommendations for volume regulation are approved. The quantity that would be available under this proposal is greater than 110 percent of the average quantity shipped in the prior three years.

    In addition, there are secondary uses available for restricted fruit, including the development of new products, sales into new markets, the development of export markets, and being placed in reserve. While these alternatives may provide different levels of return than the sales to primary markets, they play an important role for the industry. The areas of new products, new markets, and the development of export markets utilize restricted fruit to develop and expand the markets for tart cherries. In 2016-17, these activities accounted for over 37 million pounds in sales, 15.6 million of which were exports.

    Placing tart cherries into reserves is also a key part of balancing supply and demand. Although handlers bear the handling and storage costs for fruit in reserve, reserves stored in large crop years are used to supplement supplies in short crop years. The reserves allow the industry to mitigate the impact of oversupply in large crop years, while allowing the industry to maintain supply to markets in years when production falls below demand. Further, storage and handling costs are more than offset by the increase in price when moving from a large crop to a short crop year.

    In addition, the Board recommended a carry-out of 45 million pounds and made a demand adjustment of 33 million pounds in order to make the regulation less restrictive. The domestic market would have an ample supply of tart cherries, even with the recommended restriction. There are 110.5 million pounds of carry-in, 7.7 million pounds of production in the unregulated districts, and there would be 173.7 million pounds of free tonnage from the regulated districts, leaving 291.8 million pounds of fruit available to the domestic market. Consequently, it is not anticipated that this proposal would unduly burden growers or handlers.

    While this proposal could result in some additional costs to the industry, these costs are more than outweighed by the benefits. The purpose of setting restricted percentages is to attempt to bring supply and demand into balance. If the primary market (domestic) is oversupplied with cherries, grower prices decline substantially. Without volume control, the primary market would likely be oversupplied, resulting in lower grower prices.

    The three districts in Michigan, along with the districts in New York, Utah, Washington, and Wisconsin, are the restricted areas for this crop year, and have a combined total production of 262.8 million pounds. A 31 percent restriction, after removing the 11.7 million pounds for in-orchard diversion, means 173.3 million pounds would be available to be shipped to primary markets from these five states. The 173.3 million pounds from the restricted districts, 7.7 million pounds from the unrestricted districts (Oregon and Pennsylvania), and the 110.5 million pound carry-in inventory would make a total of 291.5 million pounds available as free tonnage for the primary markets. This is less than the 306 million pounds of free tonnage made available last year. However, this would be enough to cover 260 million pounds of Board reported sales in 2016-2017, while providing substantial carry-out. Further, the Board could meet and recommend the release of additional volume during the crop year if conditions so warranted.

    Prior to the implementation of the Order, grower prices often did not cover the cost of production. The most recent costs of production determined by representatives of Michigan State University are an estimated $0.33 per pound. To assess the impact that volume control has on the prices growers receive for their product, an econometric model has been developed. Based on the model, the use of volume control would have a positive impact on grower returns for this crop year. With volume control, grower prices are estimated to be approximately $0.05 per pound higher than without restrictions. In addition, absent volume control, the industry could start to build large amounts of unwanted inventories. These inventories would have a depressing effect on grower prices.

    Retail demand is assumed to be highly inelastic, which indicates that changes in price do not result in significant changes in the quantity demanded. Consumer prices largely do not reflect fluctuations in cherry supplies. Therefore, this proposal should have little or no effect on consumer prices and should not result in a reduction in retail sales.

    The free and restricted percentages established by this proposal would provide the market with optimum supply and apply uniformly to all regulated handlers in the industry, regardless of size. As the restriction represents a percentage of a handler's volume, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.

    The stabilizing effects of this proposal would benefit all handlers by helping them maintain and expand markets, despite seasonal supply fluctuations. Likewise, price stability positively impacts all growers and handlers by allowing them to better anticipate the revenues their tart cherries would generate. Growers and handlers, regardless of size, would benefit from the stabilizing effects of this restriction. In addition, the increased carry-out should provide processors enough supply to meet market needs going into the next season.

    The Board considered alternatives in its preliminary restriction discussions that affected this recommended action. The Board had extensive discussions on carry-out inventory alternatives. The alternatives included four motions that failed to pass, ranging from 20 million pounds to 55 million pounds. The Board determined that if the carry-out number was too large, it could have a negative impact on grower returns. Some members were concerned that processors would not have enough fruit to maintain sales before the new crop was available. After consideration of the alternatives, the Board recommended a carry-out of 45 million pounds.

    Regarding demand, the Board began in June with a sales average of 237.4 million pounds. However, in September the Board revised the formula for calculating the sales average going forward. This modification will provide a more accurate calculation of free sales each year. This revision lowered the three-year sales average for the final calculation made at the September meeting to 205 million pounds.

    Additionally, at the September meeting, Board members discussed an expectation of increased sales over the coming year. This anticipated increase is from serving new and expanded markets and to adjust for a smaller than normal tart cherry crop in Europe this season. In order to avoid undersupplying the market, the Board determined that the calculation of the optimum supply should include an additional adjustment to account for the growth in new markets, market expansion, and the crop shortage in Europe. The Board could accept the calculated surplus without any change. After discussion, an adjustment of an additional 33 million pounds was made to the 2017-18 available supply of tart cherries as it was determined that this amount would best meet the industry's sales needs. A motion to re-open the discussion and consider a further adjustment for imports was made, but the motion failed to receive support. Thus, the alternatives were rejected.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes are necessary in those requirements as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposal would not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

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

    In addition, the Board's meetings were widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 22, 2017, and September 14, 2017, meetings were public meetings, and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this proposal on small businesses.

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

    A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

    List of Subjects in 7 CFR Part 930

    Marketing agreements, Reporting and recordkeeping requirements, Tart cherries.

    For the reasons set forth in the preamble, 7 CFR part 930 is proposed to be amended as follows:

    PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN 1. The authority citation for 7 CFR part 930 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Revise § 930.256 and its heading title to read as follows:
    § 930.256 Free and restricted percentages for the 2017-18 crop year.

    The percentages for tart cherries handled by handlers during the crop year beginning on July 1, 2017, which shall be free and restricted, respectively, are designated as follows: Free percentage, 69 percent and restricted percentage, 31 percent.

    Dated: May 8, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-10083 Filed 5-10-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0392; Product Identifier 2018-NM-044-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This proposed AD was prompted by a report indicating that cracks were found on the fuselage frame webs at stations forward and aft of the overwing emergency exits between stringers S-7 and S-8. This proposed AD would require repetitive high frequency eddy current (HFEC) inspections for cracking of the fuselage frame webs at certain stations between stringers S-7 and S-8 and applicable on-condition actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0392.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0392; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    David Truong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0392; Product Identifier 2018-NM-044-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We have received a report indicating that cracks were found on the fuselage frame webs at stations forward and aft of the overwing emergency exits between stringers S-7 and S-8. Cracks were found at multiple stations and ranged in length from 2.4 inches to 2.55 inches. The cracks started at the end fastener common to the uppermost shear tie above the emergency exit doors, where there is high load transfer due to high shear flows around the emergency exit doors. The cracks are the result of fatigue loading caused by cyclic pressurization of the fuselage. This condition, if not addressed, could result in fuselage frame web cracking, which may lead to subsequent failure of the surrounding structure, and ultimately result in rapid decompression and loss of structural integrity of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018. The service information describes procedures for repetitive HFEC inspections for cracking of the fuselage frame webs at certain stations between stringers S-7 and S-8 and applicable on-condition actions. The on-condition action is 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.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishment of the actions identified in the Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

    For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0392.

    Explanation of Requirements Bulletin

    The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with an AD. Boeing has implemented this RC concept into Boeing service bulletins.

    In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition (i.e., only the RC actions).

    Costs of Compliance

    We estimate that this proposed AD affects 63 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on
  • U.S. operators
  • Repetitive inspections Up to 14 work-hours × $85 per hour = $1,190 per inspection cycle $0 Up to $1,190 per inspection cycle Up to $74,790 per inspection cycle.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2018-0392; Product Identifier 2018-NM-044-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by a report indicating that cracks were found on the fuselage frame webs at stations forward and aft of the overwing emergency exits between stringers S-7 and S-8. We are issuing this AD to address fuselage frame web cracking, which may lead to subsequent failure of the surrounding structure, and ultimately result in rapid decompression and loss of structural integrity of the airplane.

    (f) Compliance

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

    (g) Required Actions for Group 1 Airplanes

    For airplanes identified as Group 1 in Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018: Within 120 days after the effective date of this AD, inspect the fuselage frame webs at station (STA) 616 and STA 639 between stringers S-7 and S-8 and do all applicable repairs, using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (h) Required Actions for Groups 2 Through 4 Airplanes

    Except for airplanes identified in paragraph (g) of this AD and except as required by paragraph (i) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018.

    Note 1 to paragraph (h) of this AD:

    Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 737-53A1371, dated January 19, 2018, which is referred to in Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018.

    (i) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Service Bulletin 737-53A1371 RB, dated January 19, 2018, uses the phrase “the original issue date of Requirements Bulletin 737-53A1371 RB,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Alert Requirements Bulletin 737-53A1371 RB, dated January 19, 2018, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (k) Related Information

    (1) For more information about this AD, contact David Truong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09977 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0393; Product Identifier 2018-NM-010-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This proposed AD was prompted by reports of loose, worn, or missing attachment bolts for the main landing gear (MLG) center door assemblies. This proposed AD would require repetitive detailed inspections of the forward and aft MLG center door assembly attachments for loose, missing, damaged, or bottomed out attachment bolts; any wear to the retention clip assemblies as applicable; and applicable on-condition actions. This proposed AD would also provide an optional terminating action for the repetitive inspections. Since this is a rotable parts issue, the applicability of this AD has been expanded beyond the airplanes listed in the related service bulletin to include all airplanes on which the MLG center door assemblies may be installed. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0393.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0393; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Alan Pohl, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3527; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0393; Product Identifier 2018-NM-010-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We have received reports of loose, worn, or missing attachment bolts of the MLG center door assemblies. One operator reported the departure and loss of the center and inboard door assemblies from the left MLG during flight on a Model 737-800 series airplane. The airplane had accumulated 28,279 flight cycles when the incident occurred. There have also been several reports of the two inboard bolts that attach the MLG center door assembly to the shock strut cylinder being loose or missing. One operator reported loose, worn, and missing attachment bolts on several airplanes that had accumulated from 15,921 to 31,673 flight cycles. This condition, if not corrected, could result in departure of the center and inboard door assemblies, subsequent damage to the main flap and horizontal stabilizer, and loss of control of the airplane.

    To support operations, many operators have put processes in place that, given certain conditions, allow them to rotate or transfer parts or equipment within their fleets to different aircraft than what is defined in the manufacturer's type design. We have determined that the parts or equipment subject to the unsafe condition addressed by this proposed AD may have been rotated or transferred in this manner, due to similarity with parts or equipment not subject to the unsafe condition addressed by this proposed AD. Therefore, this proposed AD includes all Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Special Attention Service Bulletin 737-52-1170, Revision 1, dated December 19, 2017 (“BSASB 737-52-1170, R1”). The service information describes procedures for repetitive detailed inspections of the forward and aft MLG center door assembly attachments for loose, missing, damaged, or bottomed out attachment bolts; and any wear to the retention clip assemblies as applicable; and applicable on-condition actions. The service information also describes procedures for modification of the MLG center door assembly retention clip assemblies as an optional terminating action for the repetitive inspections. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of BSASB 737-52-1170, R1, described previously, except as discussed under “Differences Between this Proposed AD and the Service Information,” and except for any differences identified as exceptions in the regulatory text of this proposed AD.

    For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0393.

    Differences Between This Proposed AD and the Service Information

    The effectivity of BSASB 737-52-1170, R1, is limited to Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes line numbers 1 through 6724 inclusive and 6736. The affected MLG center door assemblies are rotable parts, and we have determined that these parts could later be installed on airplanes that were initially delivered with acceptable MLG center door assemblies, thereby subjecting those airplanes to the unsafe condition. Therefore, the applicability of this proposed AD includes all Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes to address the rotability of these parts. This difference has been coordinated with Boeing.

    Where BSASB 737-52-1170, R1, specifies Group 3 airplanes as having line numbers 4275 through 6724 inclusive, and 6736, this proposed AD specifies Group 3 airplanes as line number 4275 through any airplane with an original Certificate of Airworthiness or an original Export Certificate of Airworthiness dated “on or before the effective date of this AD,” as specified in paragraph (c)(3) of this proposed AD.

    For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original Certificate of Airworthiness or an original Export Certificate of Airworthiness dated after the effective date of the final rule, operators would not be required to complete the actions described in paragraph (g) of this proposed AD, but would be required to comply with the parts installation prohibition in paragraph (j) of this proposed AD.

    Costs of Compliance

    We estimate that this proposed AD affects 1,814 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 2 work-hours × $85 per hour = $170 per inspection cycle $0 $170 per inspection cycle $308,380 per inspection cycle. Estimated Costs for Optional Terminating Action Action Labor cost Parts cost Cost per product Modification Up to 6 work-hours × $85 per hour = Up to $510 $2,900 Up to $3,410.

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

    According to the manufacturer some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2018-0393; Product Identifier 2018-NM-010-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, as specified in paragraphs (c)(1) through (c)(4) of this AD.

    (1) Airplanes in Group 1, and in Group 2, Configuration 1, as identified in Boeing Special Attention Service Bulletin 737-52-1170, Revision 1, dated December 19, 2017 (“BSASB 737-52-1170, R1”).

    (2) Airplanes in Group 2, Configuration 2, as identified in BSASB 737-52-1170, R1.

    (3) Airplanes in Group 3, as identified in BSASB 737-52-1170, R1, except where this service bulletin specifies the groups as line numbers 4275 through 6724 inclusive, and 6736, this AD specifies those groups as line number 4275 through any line number of an airplane with an original Certificate of Airworthiness or an original Export Certificate of Airworthiness dated on or before the effective date of this AD.

    (4) All Model 737-600, -700, -700C, -800, -900 and -900ER series airplanes with an original Certificate of Airworthiness or an original Export Certificate of Airworthiness dated after the effective date of this AD.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Unsafe Condition

    This AD was prompted by reports of loose, worn, or missing attachment bolts for the main landing gear (MLG) center door assemblies. We are issuing this AD to address loose, missing, damaged, or bottomed out attachment bolts, and any wear to the retention clip assemblies, which could result in departure of the center and inboard door assemblies, subsequent damage to the main flap and horizontal stabilizer, and loss of control of the airplane.

    (f) Compliance

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

    (g) Required Actions

    For airplanes identified in paragraphs (c)(1), (c)(2), or (c)(3) of this AD: Except as required by paragraph (h) of this AD, at the applicable time specified in Tables 1 through 6, as applicable, of paragraph 1.E., Compliance, of BSASB 737-52-1170, R1, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of BSASB 737-52-1170, R1.

    (h) Exceptions to Service Information Specifications

    For purposes of determining compliance with the requirements of this AD: Where BSASB 737-52-1170, Revision 1, uses the phrase “the original issue date of this service bulletin,” this AD requires using “the effective date of this AD.”

    (i) Optional Terminating Action for Repetitive Inspections

    Accomplishment of the modification of the MLG center door retention clip assemblies specified in Part 5 of the Accomplishment Instructions of BSASB 737-52-1170, R1, terminates the repetitive inspections required by paragraph (g) of this AD for that MLG center door retention clip only. The requirements of paragraph (j) of this AD continue to apply.

    (j) Parts Installation Limitation

    As of the effective date of this AD, no person may install an MLG center door assembly on any airplane unless all actions for Group 3 airplanes identified as RC in, and in accordance with, the Accomplishment Instructions of BSASB 737-52-1170, R1, have been accomplished on that MLG center door assembly within the compliance times specified in Tables 4, 5, and 6, as applicable, of paragraph 1.E., Compliance, of BSASB 737-52-1170, R1.

    (k) Credit for Previous Actions

    This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 737-52-1170, dated July 29, 2014.

    (l) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle 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 (m)(1) of this AD. Information may be emailed to: [email protected]

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (l)(4)(i) and (l)(4)(ii) 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. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. 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.

    (m) Related Information

    (1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3527; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09978 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0385; Product Identifier 2018-CE-019-AD] RIN 2120-AA64 Airworthiness Directives; Pacific Aerospace Limited Airplanes AGENCY:

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

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Pacific Aerospace Limited Model 750XL airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as an incorrect size bolt may have been used to assemble the elevator bellcrank pivot joint. We are issuing this proposed AD to require actions to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 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 Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz. You may review copies of the referenced 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-2018-0385; 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:

    Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; 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-2018-0385; Product Identifier 2018-CE-019-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://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

    The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD DCA/750XL/28, dated March 22, 2018 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Model 750XL airplanes and was based on mandatory continuing airworthiness information originated by an aviation authority of another country. The MCAI states:

    It is possible that the elevator bellcrank pivot joint could be assembled with a bolt P/N AN4-20 that is a little too short, leaving threads inside the working area of the section of the joint.

    The MCAI requires inspecting the elevator bellcrank pivot joint to determine the length of the bolt installed to determine if it is the proper size and taking all necessary corrective actions. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0385.

    Related Service Information Under 1 CFR Part 51

    Pacific Aerospace Limited has issued Service Bulletin PACSB/XL/097, Issue 1, dated March 12, 2018. The service information describes procedures for inspecting the elevator bellcrank pivot joint to determine if the correct bolt size is installed. If an incorrect size bolt is found, the service bulletin describes procedures for inspecting the cross tube to confirm structural integrity, taking necessary corrective actions, and replacing the incorrect size bolt with a correct sized bolt. 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 of this NPRM.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with 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.

    Costs of Compliance

    We estimate that this proposed AD will affect 22 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.

    Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $3,740, or $170 per product.

    In addition, we estimate that any necessary follow-on actions would take about 8 work-hours and require parts costing $125, for a cost of $805 per product. We have no way of determining the number of products that may need these actions.

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    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: Pacific Aerospace Limited: Docket No. FAA-2018-0385; Product Identifier 2018-CE-019-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Pacific Aerospace Limited Model 750XL airplanes, all serial numbers through 215, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 27: Flight Controls.

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. We are issuing this proposed AD to prevent damage from the threads of the bolt on the internal bore of the cross tube hinge plate, which could result in reduced control.

    (f) Actions and Compliance

    Unless already done, do the following actions in paragraphs (f)(1) and (2) of this AD:

    (1) Within the next 150 hours time-in-service after the effective date of this AD or within the next 12 months after the effective date of this AD, whichever occurs later, inspect the elevator bellcrank pivot joint to determine the length of the bolt installed. Do the inspection using the Inspection Instructions in Pacific Aerospace Service Bulletin PACSB/XL/097, Issue 1, dated March 12, 2018.

    (2) If an incorrect size bolt is found during the inspection required in paragraph (f)(1) of this AD, before further flight, take all necessary corrective actions using the Accomplishment Instructions in Pacific Aerospace Service Bulletin PACSB/XL/097, Issue 1, dated March 12, 2018.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Small Airplane Standards 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: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; 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, Small Airplane Standards Branch, FAA; or the Civil Aviation Authority of New Zealand (CAA).

    (h) Related Information

    Refer to MCAI Civil Aviation Authority (CAA) AD DCA/750XL/28, dated March 22, 2018, for related information. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0385. For service information related to this AD, contact Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz. You may review this referenced 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 May 4, 2018. Melvin J. Johnson, Deputy Director, Policy & Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-10016 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0394; Product Identifier 2018-NM-036-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0394; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0394; Product Identifier 2018-NM-036-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0026, dated January 30, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. The MCAI states:

    The airworthiness limitations and certification maintenance instructions for the Dassault Mystère Falcon 50 aeroplanes, which are approved by EASA, are currently defined and published in the Dassault Mystère Falcon 50 Aircraft Maintenance Manual (AMM) chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition [i.e, reduced structural integrity of the airplane].

    Consequently, EASA issued [EASA] AD 2016-0067 [which corresponds to FAA AD 2017-09-03 Amendment 39-18865 (82 FR 21467, May 9, 2017) (“AD 2017-09-03”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in Dassault Mystère Falcon 50 AMM chapter 5-40 Revision 23.

    Since that [EASA] AD was issued, Dassault issued Revision 24 of the Dassault Mystère Falcon 50 AMM chapter 5-40, which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0067, which is superseded, and requires accomplishment of the actions specified in Revision 24 of the Dassault Mystère Falcon 50 AMM chapter 5-40 * * *.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0394.

    Relationship Between Proposed AD and Certain Other ADs

    This NPRM would not supersede AD 2017-09-03. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program, as applicable, to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2017-09-03. Accomplishment of the proposed actions would also terminate all requirements of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”) and AD 2012-02-18, Amendment 39-16941 (77 FR 12175, February 29, 2012) (“AD 2012-02-18”), for the Dassault Aviation Model MYSTERE-FALCON 50 airplanes specified in those ADs.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 24, dated July 2017. This service information describes instructions applicable to airworthiness and safe life limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

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

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

    Differences Between This Proposed AD and the MCAI or Service Information

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

    Costs of Compliance

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

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

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Dassault Aviation: Docket No. FAA-2018-0394; Product Identifier 2018-NM-036-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”); AD 2012-02-18, Amendment 39-16941 (77 FR 12175, February 29, 2012) (“AD 2012-02-18”); and AD 2017-09-03 Amendment 39-18865 (82 FR 21467, May 9, 2017) (“AD 2017-09-03”).

    (c) Applicability

    This AD applies to Dassault Aviation Model MYSTERE-FALCON 50 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.

    (e) Reason

    This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 24, dated July 2017. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 24, dated July 2017, or within 90 days after the effective date of this AD, whichever occurs later.

    (h) No Alternative Actions or Intervals

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

    (i) Terminating Actions for Other ADs

    (1) Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2017-09-03.

    (2) Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2010-26-05 and AD 2012-02-18 for the Dassault Aviation Model MYSTERE-FALCON 50 airplanes specified in those ADs.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Airworthiness Directive 2018-0026, dated January 30, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0394.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09979 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0390; Product Identifier 2017-NM-130-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 series airplanes. This proposed AD was prompted by a revision of an airworthiness limitation items (ALI) document. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

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

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0390; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3225.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0390; Product Identifier 2017-NM-130-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0145, dated August 31, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes. The MCAI states:

    Some airworthiness limitations previously defined in A300 ALS Part 1 have been removed from that document and should normally be included in an ALS Part 4. Airbus does not plan to issue an ALS Part 4 for A300 aeroplanes.

    Nevertheless, failure to comply with these airworthiness limitations could result in an unsafe condition.

    For the reason described above, it has been decided to require the application of these airworthiness limitations through a separate AD.

    Previously, EASA issued AD 2013-0210 [which corresponds to FAA AD 2014-16-13, Amendment 39-17937 (79 FR 51083, August 27, 2014) (“AD 2014-16-13”)] to require implementation of airworthiness limitations applicable to main landing gear (MLG) barrel assembly, retraction actuator assembly, linkage assembly and flanged duct, which were previously defined in Revision 00 of A300 ALS Part 1 but removed from Revision 01 of A300 ALS Part 1, adding those limits as an Appendix to the AD.

    Since EASA AD 2013-0210 was issued, improvement of safe life component selection resulted, among others, in removal of 15 nose landing gear (NLG) parts from Revision 02 of A300 ALS Part 1.

    Consequently, this [EASA] AD retains the requirements of EASA AD 2013-0210, which is superseded, and requires, in addition to the implementation of airworthiness limitations already contained in EASA AD 2013-0210, the implementation of airworthiness limitations applicable to NLG barrel assembly and shock absorber assembly, previously contained in Revision 01 of A300 ALS Part 1, as specified in Appendix 1 of this AD.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0390.

    Relationship of Proposed AD to AD 2014-16-13

    This NPRM would not supersede AD 2014-16-13. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2014-16-13.

    FAA's Determination and Requirements of This Proposed AD

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

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

    Differences Between This Proposed AD and the MCAI or Service Information

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

    Costs of Compliance

    We estimate that this proposed AD affects 5 airplanes of U.S. registry.

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

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2018-0390; Product Identifier 2017-NM-130-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    This AD affects AD 2014-16-13, Amendment 39-17937 (79 FR 51083, August 27, 2014) (“AD 2014-16-13”).

    (c) Applicability

    This AD applies to Airbus Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes, certificated in any category.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a revision of an airworthiness limitation items (ALI) document. We are issuing this AD to prevent reduced structural integrity of the airplane and possible loss of controllability of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the safe life limits included in figure 1 to paragraph (g) of this AD. The initial compliance time for the replacements is prior to the applicable life limits specified in figure 1 to paragraph (g) of this AD, or within 90 days after the effective date of this AD, whichever occurs later. The term “FH” in figure 1 to paragraph (g) of this AD means total flight hours. The term “LDG” in figure 1 to paragraph (g) of this AD means total airplane landings.

    BILLING CODE 4910-13-P EP11MY18.004 EP11MY18.005 EP11MY18.006 EP11MY18.007 BILLING CODE 4910-13-C (h) No Alternative Actions or Intervals

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

    (i) Terminating Action for AD 2014-16-13

    Accomplishing the actions required by this AD terminates all requirements of AD 2014-16-13.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0145, dated August 31, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0390.

    (2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3225.

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

    Issued in Des Moines, Washington, on April 27, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09847 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0371; Product Identifier 2018-CE-005-AD] RIN 2120-AA64 Airworthiness Directives; Pacific Aerospace Limited Airplanes AGENCY:

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

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Pacific Aerospace Limited Model 750XL airplanes. This proposed 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 insufficient clearance between the pitot tubes and the primary support at the flame arrester intersection. We are issuing this proposed AD to require actions to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 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 Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz. You may review this referenced 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-2018-0371; 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:

    Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; 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-2018-0371; Product Identifier 2018-CE-005-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://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

    The Civil Aviation Authority of New Zealand (CAA), has issued DCA/750XL/24A, dated March 22, 2018 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

    Pacific Aerospace SB PACSB/XL/094 issue 2, dated 20 March 2018 revised to include inspection information, and DCA/750XL/24A updated to introduce the revised SB.

    The [CAA] AD is prompted by a production inspection of installed pitot static plumbing which identified insufficient clearance between the pitot tubes and the primary support at the flame arrestor intersection.

    This proposed AD would require inspecting the pitot static tubes for chafing damage, replacing tubing as necessary, installing additional clamp for pitot static tube support, protecting plumbing with spiralwrap, and ensuring proper clearance between the pitot tubes and the primary support at the flame arrester intersection. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0371.

    Related Service Information Under 1 CFR Part 51

    Pacific Aerospace Limited has issued Pacific Aerospace Service Bulletin PACSB/XL/094, Issue 2, dated March 20, 2018. The service information describes procedures for inspecting the pitot static tubing for chafing, replacing tubing as necessary, installing an additional clamp for pitot static tube support, protecting plumbing with spiralwrap, and ensuring proper clearance between the pitot tubes and the primary support at the flame arrester intersection. 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.

    Costs of Compliance

    We estimate that this proposed AD will affect 22 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $25 per product.

    Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,420, or $110 per product.

    In addition, we estimate that any necessary follow-on actions would take about 1 work-hour and require parts costing $25, for a cost of $110 per product. We have no way of determining the number of products that may need these actions.

    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: Pacific Aerospace Limited: Docket No. FAA-2018-0371; Product Identifier 2018-CE-005-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Pacific Aerospace Limited Model 750XL airplanes, all serial numbers up to and including XL200, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 34: Navigation.

    (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 insufficient clearance between the pitot tubes and the primary support at the flame arrester intersection. We are issuing this AD to prevent chafing between the pitot-static plumbing and the flame arrestor, which could lead to damage of the pitot-static lines.

    (f) Actions and Compliance

    Unless already done, do the following actions in paragraphs (f)(1) through (3) of this AD following the Accomplishment Instructions in Pacific Aerospace Service Bulletin PACSB/XL/094, Issue 2, dated March 20, 2018.

    (1) Within the next 100 hours time-in-service (TIS) after the effective date of this AD or within the next 60 days after the effective date of this AD, whichever occurs first, inspect the pitot static tubing adjacent to the flame arrestor for chafing damage.

    (2) If any chafing damage is founding during the inspection required in paragraph (f)(1) of this AD, before further flight, repair or replace any damaged tubing and conduct a pitot and static leak check.

    (3) Within the next 100 hours TIS after the effective date of this AD or within the next 60 days after the effective date of this AD, whichever occurs first, install an additional support clamp, protect plumbing with spiralwrap, and ensure proper clearance between the pitot tubes and the primary support at the flame arrester intersection.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Small Airplane Standards 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: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; 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, Small Airplane Standards Branch, FAA; or Civil Aviation Authority of New Zealand (CAA).

    (h) Related Information

    Refer to MCAI CAA AD DCA/750XL/24A, dated March 22, 2018, for related information. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0371. For service information related to this AD, contact Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz. You may review this referenced 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 May 4, 2018. Melvin J. Johnson, Deputy Director, Policy & Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-10014 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0418; Product Identifier 2017-SW-016-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Model AS-365N2 and AS 365 N3 helicopters with a lower strobe light installed. This proposed AD would require installing a cable mount, inspecting the lower strobe light wiring harness, and re-routing the wiring harness. This proposed AD is prompted by reports of interference between the lower strobe light wiring harness and the helicopter structure. The actions of this proposed AD are intended to prevent an unsafe condition on these helicopters.

    DATES:

    We must receive comments on this proposed AD by July 10, 2018.

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

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

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

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0418; 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 European Aviation Safety Agency (EASA) AD, the economic 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 service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.helicopters.airbus.com/website/en/ref/Technical-Support_73.html. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    George Schwab, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2016-0258, dated December 16, 2016, to correct an unsafe condition for Airbus Helicopters Model AS 365 N2 and AS 365 N3 helicopters with certain serial numbers and configurations. EASA advises of in-production helicopters with lower strobe light wiring harnesses that were interfering with either the helicopter structure or the adjacent fuel tank support. EASA further states that an investigation determined that the electrical harnesses of these lower strobe lights were manufactured with additional length to facilitate removal and installation of the lower strobe light assembly. However, the additional length of wiring in the harness was not properly secured to the helicopter structure. According to EASA, this could result in chafing of the harness on the helicopter structure, creating an ignition source adjacent to the inboard fuel tank vapor space, and result in a fuel tank fire.

    To address this unsafe condition, the EASA AD requires installing a cable mount, inspecting the lower strobe light electrical harness for damage, and re-routing the electrical harness.

    FAA's Determination

    These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS365-05.00.73, Revision 1, dated December 12, 2016 (ASB AS365-05.00.73), which specifies procedures for inspecting the lower strobe light electrical harness for interference and chafing with the helicopter structure and also specifies procedures for installing a cable mount to secure the electrical harness. These procedures correspond to Airbus Helicopters modification (MOD) 365P084778.00.

    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.

    Proposed AD Requirements

    This proposed AD would require, within 50 hours time-in-service (TIS), installing a cable mount on the helicopter structure and inspecting the lower strobe light electrical harness and the electrical harness between the cut-off connector and Frame 2000 for torn spiral tape and for any chafing on the harness cables. If the spiral tape is torn, the proposed AD would require, before further flight, replacing the spiral tape. If there is any chafing on the cable the proposed AD would require, before further flight, replacing the harness.

    Helicopters in a MOD 365P084778.00 configuration have already accomplished the actions required by this proposed AD.

    Differences Between This Proposed AD and the EASA AD

    The EASA AD limits the applicability to helicopters with a lower strobe light installed and with certain serial numbers or that are in a configuration based upon a modification, service information, or engineering drawings. This proposed AD would apply to all Model AS 365 N2 and AS 365 N3 helicopters with a lower strobe light installed.

    Costs of Compliance

    We estimate that this proposed AD would affect 30 helicopters of U.S. Registry.

    We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per work-hour, installing a cable mount and inspecting the strobe light wiring harnesses would require about 1 hour, and required parts would cost about $50, for a cost per helicopter of $135 and a total cost of $4,050 to all U.S. operators.

    If required, replacing torn spiral tape would require about 1 work-hour, and required parts would cost $45, for a cost per helicopter of $130.

    If required, replacing a chafed wiring harness between the cut-off connector and Frame 2000 would require about 3 work-hours, and required parts would cost $90, for a cost per helicopter of $345.

    If required, replacing a chafed lower strobe light wiring harness would require about 3 work-hours, and required parts would cost $154, for a cost per helicopter of $409

    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.

    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, 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 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.

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Helicopters: Docket No. FAA-2018-0418; Product Identifier 2017-SW-016-AD. (a) Applicability

    This AD applies to Airbus Helicopters Model AS-365N2 and AS 365 N3 helicopters, certificated in any category, with a lower strobe light installed.

    (b) Unsafe Condition

    This AD defines the unsafe condition as interference between the lower strobe light electrical harness wiring and the helicopter structure. This condition could result in chafing of an electrical harness adjacent to the inboard fuel tank vapor space, a fuel tank fire, and subsequent loss of control of the helicopter.

    (c) Comments Due Date

    We must receive comments by July 10, 2018.

    (d) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (e) Required Actions

    Within 50 hours time-in-service:

    (1) Install cable mount part number (P/N) ASMS-A to the helicopter structure as depicted in Figure 1, Detail A and Detail C, of Airbus Helicopters Alert Service Bulletin No. AS365-05.00.73, Revision 1, dated December 12, 2016 (ASB AS365-05.00.73).

    (2) Inspect the lower strobe light harness and the harness between the cut-off connector and Frame 2000 for tears in the spiral tape and for chafing of the harness wires. If there is a tear in the spiral tape, before further flight, replace the spiral tape. If there is any chafing, before further flight, replace the chafed harness.

    (3) Route the lower strobe light harness and the harness between the cut-off connector and Frame 2000 and secure as depicted in Figure 1, Detail A and Section B-B, of ASB AS365-05.00.73.

    Note 1 to paragraph (e) of this AD:

    Airbus Helicopters identifies the actions in ASB AS365-05.00.73 as Modification 365P084778.00.

    (f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: George Schwab, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (g) Additional Information

    The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2016-0258, dated December 30, 2016. You may view the EASA AD on the internet at http://www.regulations.gov in the AD Docket.

    (h) Subject

    Joint Aircraft Service Component (JASC) Code: 3340 Lights.

    Issued in Fort Worth, Texas, on May 1, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service.
    [FR Doc. 2018-09982 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0399; Product Identifier 2018-NM-008-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2015-17-04, which applies to certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. AD 2015-17-04 requires replacement of left and right fixed control rods and lever assemblies of the elevator control system. Since we issued AD 2015-17-04, we have received a report indicating that certain revisions of the service information were missing instructions. This proposed AD would require a detailed visual inspection of the key washers and self-locking nuts of the elevator control linkages and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 25, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email: [email protected]; internet: http://www.bombardier.com. You may view this 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.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0399; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0399; Product Identifier 2018-NM-008-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 based on those comments.

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

    Discussion

    We issued AD 2015-17-04, Amendment 39-18237 (80 FR 50556, August 20, 2015) (“AD 2015-17-04”), for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. AD 2015-17-04 requires replacement of left and right fixed control rods and lever assemblies of the elevator control system. AD 2015-17-04 resulted from reports of a disconnect between the elevator lever and control rod. We issued AD 2015-17-04 to prevent a disconnect between the elevator lever and control rod, which could lead to uncommanded elevator movement of the associated control surface, a large difference between the position of the left and the right elevator control surfaces, and consequent reduced controllability of the airplane and degradation of the structural integrity of the horizontal stabilizer.

    Actions Since AD 2015-17-04 Was Issued

    Since we issued AD 2015-17-04, we have received a report indicating that certain revisions of the service information were missing instructions for proper installation of the key washers part number BA698-93726-3.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2014-44R1, dated October 6, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. The MCAI states:

    During an engineering review of the Elevator Control system, it was discovered that a disconnect between the elevator lever and control rod could lead to an uncommanded elevator movement of the associated control surface. This uncommanded movement may cause a large difference between the position of the left and the right elevator control surface resulting in reduced controllability of the aeroplane and compromised structural integrity of the horizontal stabilizer.

    This [Canadian] AD mandates the replacement of the existing elevator lever assemblies and control rods with newly designed ones, which will prevent a disconnect between the components of the elevator control system should a failure occur.

    Revision 1 of this [Canadian] AD is issued to require operators, * * * [regardless of previously accomplished actions], to perform a detailed visual inspection for the correct installation of the tab key washers and to re-torque the nut(s) [and corrective actions that include bending one tab of the key washer on a flat surface of the self-locking nut] if the tab key washer(s) does not have one tab bent on a flat surface of the self-locking nut.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0399.

    Related Service Information Under 1 CFR Part 51

    Bombardier, Inc., has issued the following service information:

    • Bombardier Service Bulletin 670BA-27-062, Revision C, dated February 13, 2015. This service information describes procedures for replacing the elevator lever assemblies and control rods.

    • Bombardier Service Bulletin 670BA-27-062, Revision E, dated June 8, 2017. This service information describes procedures for replacing the elevator lever assemblies and control rods, and a detailed visual inspection of the key washers and self-locking nuts of the elevator control linkages and corrective actions, which include bending the tab of the key washers and re-torqueing the self-locking nuts.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

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

    Costs of Compliance

    We estimate that this proposed AD affects 549 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Replacement of fixed control rods and lever assemblies (retained actions from AD 2015-17-04) 14 work-hours × $85 per hour = $1,190 $6,712 $7,902 $4,338,198 Detailed visual inspection of the key washers and self-locking nuts (new proposed action) 3 work-hours × $85 per hour = $255 0 255 139,995
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2015-17-04, Amendment 39-18237 (80 FR 50556, August 20, 2015), and adding the following new AD: Bombardier, Inc.: Docket No. FAA-2018-0399; Product Identifier 2018-NM-008-AD. (a) Comments Due Date

    We must receive comments by June 25, 2018.

    (b) Affected ADs

    This AD replaces AD 2015-17-04, Amendment 39-18237 (80 FR 50556, August 20, 2015) (“AD 2015-17-04”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.

    (1) Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10002 through 10337 inclusive.

    (2) Bombardier, Inc., Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15298 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight controls.

    (e) Reason

    This AD was prompted by reports of a disconnect between the elevator lever and control rod and a report indicating that certain revisions of the service information were missing instructions for proper installation of the key washers part number BA698-93726-3. We are issuing this AD to prevent a disconnect between the elevator lever and control rod, which could lead to uncommanded elevator movement of the associated control surface, a large difference between the position of the left and the right elevator control surfaces, and consequent reduced controllability of the airplane and degradation of the structural integrity of the horizontal stabilizer.

    (f) Compliance

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

    (g) Retained Replacement of Elevator Lever Assemblies and Control Rods, With Revised Service Information

    This paragraph restates the requirements of paragraph (g) of AD 2015-17-04, with revised service information. Within 9,200 flight hours or 5 years, whichever occurs first, after September 24, 2015 (the effective date of AD 2015-17-04): Replace the left and right fixed control rods and lever assemblies of the elevator control system with newly designed control rods and lever assemblies, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-062, Revision C, dated February 13, 2015; or Bombardier Service Bulletin 670BA-27-062, Revision E, dated June 8, 2017. After the effective date of this AD, only Bombardier Service Bulletin 670BA-27-062, Revision E, dated June 8, 2017, may be used.

    (h) New Requirement of This AD: Detailed Visual Inspection and Corrective Actions

    Within 8,800 flight hours after the effective date of this AD, do a detailed visual inspection of the key washers and self-locking nuts of the elevator control linkages, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-062, Revision E, dated June 8, 2017. Do all applicable corrective actions before further flight.

    (i) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-27-062, dated December 12, 2013; Bombardier Service Bulletin 670BA-27-062, Revision A, dated April 1, 2014; Bombardier Service Bulletin 670BA-27-062, Revision B, dated October 10, 2014; or Bombardier Service Bulletin 670BA-27-062, Revision D, dated December 1, 2015. This service information is not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (i)(2)(i) or (i)(2)(ii) of this AD, provided those actions were done concurrently with Bombardier Service Non-Incorporated Engineering Order (SNIEO) KBA670-93707 S02, dated July 21, 2015.

    (i) Bombardier Service Bulletin 670BA-27-062, dated December 12, 2013; Bombardier Service Bulletin 670BA-27-062, Revision A, dated April 1, 2014; or Bombardier Service Bulletin 670BA-27-062, Revision B, dated October 10, 2014. This service information is not incorporated by reference in this AD.

    (ii) Bombardier Service Bulletin 670BA-27-062, Revision C, dated February 13, 2015 (80 FR50556, August 20, 2015). This service information is incorporated by reference in this AD.

    (3) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-27-062, Revision D, dated December 1, 2015. This service information is not incorporated by reference in this AD.

    (j) Other FAA AD Provisions

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7300; fax: 516-794-5531.

    (i) 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.

    (ii) AMOCs approved previously for AD 2015-17-04, are approved as AMOCs for the corresponding provisions of this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2014-44R1, dated October 6, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0399.

    (2) For more information about this AD, contact Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email: [email protected]; internet: http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on May 1, 2018. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09846 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0016; Airspace Docket No. 17-ANM-14] RIN 2120-AA66 Proposed Amendment of Class D and Class E Airspace; Aspen, CO AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E airspace designated as an extension and Class E airspace extending upward from 700 feet above the surface at Aspen-Pitkin County Airport/Sardy Field, Aspen, CO, by realigning the Class E extension and removing the part-time Notice to Airmen (NOTAM) language from the legal description, and reducing the Class E airspace area extending upward from 700 feet above the surface and removing Class E airspace extending upward from 1,200 feet above the surface. This action would also update the airport's geographic coordinates in the associated Class D and E airspace areas to match the FAA's aeronautical database. These changes are necessary to accommodate airspace redesign for the safety and management of instrument flight rules (IFR) operations within the National Airspace System. Also, an editorial change would be made to the Class D airspace and Class E extension airspace legal descriptions replacing Airport/Facility Directory with the term Chart Supplement.

    DATES:

    Comments must be received on or before June 25, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC, 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0016; Airspace Docket No. 17-ANM-14, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone:

    (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198-6547; telephone (206) 213-2253.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Aspen-Pitkin County Airport/Sardy Field, Aspen, CO, to support 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. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0016; Airspace Docket No. 17-ANM-14”. 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 Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace designated as an extension, Class E airspace extending upward from 700 feet above the surface, and updating the geographic coordinates for all Class D and E airspace areas at Aspen-Pitkin County Airport/Sardy Field, Aspen, CO.

    Class E airspace designated as an extension would be realigned to that airspace within 3.5 miles west and 2.7 miles east (from 2.7 miles each side) of the 340° bearing (from 315°) from the Aspen-Pitkin County Airport/Sardy Field Airport, extending from the 4.3-mile radius to 7.8 miles north (from 7.4 miles northwest) of the airport. Also, the part-time NOTAM language would be removed from the legal description since the airspace is in effect continuously.

    Class E airspace extending upward from 700 feet above the surface would be reduced to that airspace within 6.6 miles west and 3.2 miles east of the 354° bearing from the Aspen-Pitkin County Airport/Sardy Field Airport extending to 11.1 miles north of the airport (from a much larger rectangular area defined as beginning at lat. 39°04′00″ N, long. 106°40′02″ W; to lat. 39°04′00″ N, long. 107°44′02″ W; to lat. 39°39′00″ N, long. 107°44′02″ W; to lat. 39°39′00″ N, long. 106°40′02″ W, to the point of beginning). Also, Class E airspace extending upward from 1,200 feet would be removed as this airspace is wholly contained in the Denver Class E en route airspace area.

    These changes are necessary to accommodate airspace redesign for the safety and management of IFR operations under standard instrument approach procedures at the airport. Also, an editorial change would be made to the Class D and Class E airspace legal descriptions replacing Airport/Facility Directory with the term Chart Supplement.

    Class D and Class 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 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 5000 Class D Airspace. ANM CO D Aspen, CO [Amended] Aspen-Pitkin CountyAirport/Sardy Field, CO (Lat. 39°13′19″ N, long. 106°52′06″ W)

    That airspace extending upward from the surface to and including 10,300 feet mean sea level (MSL) within a 4.3-mile radius of Aspen-Pitkin County Airport/Sardy 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 Designated as Surface Areas. ANM CO E2 Aspen, CO [Amended] Aspen-Pitkin County Airport/Sardy Field, CO (Lat. 39°13′19″ N, long. 106°52′06″ W)

    That airspace extending upward from the surface within a 4.3-mile radius of Aspen-Pitkin County Airport/Sardy 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 Designated as an Extension to a Class D or Class E Surface Area. ANM CO E4 Aspen, CO [Amended] Aspen-Pitkin County Airport/Sardy Field, CO (Lat. 39°13′19″ N, long. 106°52′06″ W)

    That airspace extending upward from the surface within 3.5 miles west and 2.7 miles east of the 340° bearing from Aspen-Pitkin County Airport/Sardy Field, extending from the 4.3-mile radius to 7.8 miles north of the airport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM CO E5 Aspen, CO [Amended] Aspen-Pitkin County Airport/Sardy Field, CO (Lat. 39°13′19″ N, long. 106°52′06″ W)

    That airspace extending upward from 700 feet above the surface within 6.6 miles west and 3.2 miles east of a 354° bearing from Aspen-Pitkin County Airport/Sardy Field extending to 11.1 miles north of the airport.

    Issued in Seattle, Washington, on May 4, 2018. Byron G. Chew, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09989 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0034; Airspace Docket No. 17-ANM-34] Proposed Amendment of Class E Airspace; Kemmerer, WY AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class E surface area airspace at Kemmerer Municipal Airport, Kemmerer, WY, by enlarging the airspace area north of the airport and removing the Notice to Airmen (NOTAM) part-time status for the airspace. Also, this action would reduce Class E airspace extending upward from 700 feet above the surface and remove Class E airspace extending upward from 1,200 feet above the surface. After a review of the airspace, the FAA found these actions necessary for the safety and management of instrument flight rules (IFR) operations at the airport.

    DATES:

    Comments must be received on or before June 25, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0034; Airspace Docket No. 17-ANM-34, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW, Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    Comments Invited

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

    Communications should identify both docket numbers (Docket No. FAA-2018-0034; Airspace Docket No. 17-ANM-34) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number).

    Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0034; Airspace Docket No. 17-ANM-34.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW, Renton, WA 98057.

    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 proposes to amend Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying the north extension of the Class E surface area airspace at Kemmerer Municipal Airport, Kemmerer, WY, to within 1.8 miles (from 1 mile) each side of the 354° bearing (from the 360° bearing) from the airport extending from the 4.3-mile radius of the airport to 7.7 miles (from 7 miles) north of the airport. Also, the NOTAM part-time status for the airspace would be removed to make the airspace effective continuously.

    The FAA also proposes to amend the Class E airspace extending upward from 700 feet above the surface to within a 4.3-mile radius of Kemmerer Municipal Airport from the airport 035° bearing clockwise to the airport 006° bearing, and within a 9.5 mile radius of the airport from the airport 006° bearing clockwise to the airport 035° bearing, and within 2.2 miles each side of the 354° bearing from the airport extending from the 4.3-mile radius of the airport to 15.9 miles north of the airport, and within 2.2 miles each side of the 172° bearing from the airport extending from the 4.3-mile radius of the airport to 7.4 miles south of the airport (from within the 8-mile radius of Kemmerer Municipal Airport, and within 4 miles each side of the 174° bearing from the airport extending from the airport 11 miles south of the airport, and within 3.6 miles each side of the 354° bearing from the airport extending from the airport to 16.1 miles northwest of the airport). Additionally, the Class E airspace extending upward from 1,200 feet above the surface would be removed because sufficient airspace exists (Wasatch and Jackson Class E airspace areas) and duplication is not necessary. This airspace redesign is necessary for the safety and management of IFR operations at the airport.

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

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6002 Class E Airspace Areas Designated as Surface Areas. ANM WY E2 Kemmerer, WY [Amended] Kemmerer Municipal Airport, WY (Lat. 41°49′27″ N, long. 110°33′25″ W)

    Within a 4.3-mile radius of Kemmerer Municipal Airport, and within 1.8-miles each side of the 354° bearing from the airport extending from the 4.3-mile radius of the airport to 7.7 miles north of the airport.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM WY E5 Kemmerer, WY [Amended] Kemmerer Municipal Airport, WY (Lat. 41°49′27″ N, long. 110°33′25″ W)

    That airspace extending upward from 700 feet above the surface within a 4.3-mile radius of Kemmerer Municipal Airport from the airport 035° bearing clockwise to the airport 006° bearing, and within a 9.5-mile radius of the airport from the airport 006° bearing clockwise to the airport 035° bearing, and within 2.2 miles each side of the 354° bearing from the airport extending from the 4.3-mile radius of the airport to 15.9 miles north of the airport, and within 2.2 miles each side of the 172° bearing from the airport extending from the 4.3-mile radius of the airport to 7.4 miles south of the airport.

    Issued in Seattle, Washington, on May 4, 2018. Byron G. Chew, Acting Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09986 Filed 5-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 625 [Docket No. FHWA-2017-0001] [RIN 2125-AF72] Design Standards for Highways AGENCY:

    Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking (NPRM); request for comments.

    SUMMARY:

    The FHWA requests comments on a proposed revision to design standards and standard specifications that applies to new construction, reconstruction, resurfacing (except for maintenance resurfacing), restoration, and rehabilitation projects on the National Highway System (NHS). The proposed rule would incorporate by reference the latest versions of design standards and standard specifications previously adopted and incorporated by reference, and would remove the corresponding outdated or superseded versions of these standards and specifications. Use of the updated standards will be required for all NHS projects authorized to proceed with design activities on or after the effective date of the final rule.

    DATES:

    Comments must be received on or before June 11, 2018. Late comments will be considered to the extent practicable.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Fax: 1-202-493-2251;

    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, 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; or

    Electronically through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.

    Instructions: All submissions must include the agency name, docket name, and docket number (FHWA-2017-001) or Regulatory Identification Number (RIN) for this rulemaking (2125-AF72). Note that all comments received will be posted without change to: http://www.regulations.gov, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Elizabeth Hilton, Office of Program Administration (HIPA-20), (512) 536-5970, or via email at [email protected], or Ms. Hannah Needleman, Office of the Chief Counsel (HCC-30), (202) 366-1345, or via email at [email protected] Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Electronic Access and Filing

    This document may be viewed online under the docket number noted above through the Federal eRulemaking portal at: http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days this year. Please follow the online instructions.

    An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at: http://www.archives.gov/federal-register and the Government Publishing Office's website at: http://www.thefederalregister.org/fdsys. In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. The DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be viewed at: www.dot.gov/privacy.

    Physical access to the Docket is available at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20950, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Background

    The FHWA proposes to modify its regulations governing new construction, reconstruction, resurfacing (except for maintenance resurfacing), restoration, and rehabilitation projects on the NHS (including the Interstate System), by incorporating by reference the current versions of design standards and standard specifications previously adopted and incorporated by reference under 23 CFR 625.4, and removing the outdated or superseded versions of these standards and specifications. Several of these design standards and standard specifications were established by the American Association of State Highway and Transportation Officials (AASHTO) and the American Welding Society (AWS) and were previously adopted by FHWA through rulemaking. The new standards or specifications replace previous versions of these documents and represent the most recent refinements that professional organizations have formally accepted. After review of the various standards and specifications, FHWA proposes to adopt them for NHS projects.

    The proposed revisions include referencing the 2016 edition of the AASHTO A Policy on Design Standards—Interstate System; the 2017 edition of the AASHTO Standard Specifications for Transportation Materials and Methods of Sampling and Testing, and AASHTO Provisional Standards; the 2017 edition of the AASHTO Load and Resistance Factor Design (LRFD) Bridge Construction Specifications; the 2016 edition of the AASHTO/AWS D1.5M/D1.5: 2015 Bridge Welding Code; and the 2017 edition of the AASHTO LRFD Bridge Design Specifications. The proposed revisions also include referencing the recent interim revisions of AASHTO's Standard Specifications for Structural Supports of Highway Signs, Luminaires, and Traffic Signals.

    The AASHTO is an organization that represents 52 State highway and transportation agencies (including the District of Columbia and Puerto Rico). Its members consist of the duly constituted heads and other chief officials of those agencies. The Secretary of Transportation is an ex-officio member, and DOT staff participates in various AASHTO activities as nonvoting representatives. Among other functions, AASHTO develops and issues standards, specifications, policies, guides, and related materials for use by the States for highway projects. Many of the standards, policies, and standard specifications that were approved by FHWA and incorporated into 23 CFR part 625 were developed and issued by AASHTO.

    While these adopted standards and specifications apply to all projects on the NHS (including the Interstate System), FHWA encourages the use of flexibility and a context-sensitive approach to consider a full range of project and user needs and the impacts to the community and natural and human environment. The FHWA also encourages State departments of transportation (State DOT) and local agencies to consider using design exceptions to achieve a design that balances project and user needs, performance, cost, environmental implications, and community values. These adopted design standards provide a range of acceptable values for highway features, and this flexibility should allow for a design that best suits the desires of the community while satisfying the purpose for the project and needs of its users.

    At a minimum, State DOTs and local agencies should select design values based on an evaluation of the context of the facility, needs of all the various project users, safety, mobility (i.e., traffic performance), human and natural environmental impacts, and project costs. For most situations, there is sufficient flexibility within the range of acceptable values to achieve a balanced design. However, when this is not possible, a design exception may be appropriate. State and local agencies may consider designs that deviate from the design standards when warranted based on the conditions, context, and consequences of the proposed projects. Additional information on FHWA's adopted design standards and design exceptions is available at: http://www.fhwa.dot.gov/design/standards and in FHWA's publication titled Mitigation Strategies for Design Exceptions, available at: http://safety.fhwa.dot.gov/geometric/pubs/mitigationstrategies/fhwa_sa_07011.pdf.

    Discussion under 1 CFR part 51

    The documents that FHWA proposes to incorporate by reference are reasonably available to interested parties, primarily State DOTs and local agencies carrying out Federal-aid highway projects. These documents represent the most recent refinements that professional organizations have formally accepted and are currently in use by the transportation industry. The documents are also available for review at DOT's National Transportation Library or may be obtained from AASHTO or AWS. The specific standards are discussed in greater detail elsewhere in this preamble.

    Section-by-Section Discussion of the Proposed Changes to 23 CFR 625

    The FHWA propose to remove the introductory text of § 625.4. It is duplicative of information contained in paragraph (d) and does not meet Office of the Federal Register formatting requirements for incorporation by reference.

    The FHWA proposes to revise § 625.4(a)(2) to replace the reference to the January 2005 edition of A Policy on Design Standards—Interstate System with the May 2016 edition. This Policy is a comprehensive manual to assist State DOTs and local agencies in administrative, planning, and educational efforts pertaining to design formulation for projects on the Dwight D. Eisenhower National System of Interstate and Defense Highways (Interstate). The AASHTO May 2016 edition incorporates the latest research and current industry practices, and is applicable to new construction and reconstruction projects on the Interstate except in Alaska and Puerto Rico (23 U.S.C. 103(c)(1)(B)(ii)). Resurfacing, restoration, and rehabilitation projects must meet the Interstate standards that were in place at the time of original construction or inclusion into the Interstate System. The updated guide clarifies ambiguities in the prior edition and provides additional flexibility regarding the design traffic volumes to be accommodated. It increases the median width in rural areas to reduce cross-median crashes and adds recommendations about extended access control and multimodal considerations at interchanges. Basic criteria for other geometric design standards remain essentially the same. The Agency considers the changes made in the 2016 version minor in nature.

    With respect to the design standards and standards specifications for bridges and structures under § 625.4(b), FHWA generally proposes to adopt the current versions of the standards and specifications it has previously adopted from AASHTO and AWS. The updated documents contain changes that represent discoveries or improvements in the state-of-the-knowledge and practices of State DOTs and local agencies that have occurred since the previous standards and specifications were incorporated by reference into 23 CFR part 625.

    The FHWA proposes to revise § 625.4(b)(2) to incorporate by reference the current version of the revised AASHTO bridge construction specifications entitled LRFD Bridge Construction Specifications, 4th Edition. These specifications, which are intended for use in the construction of bridges, employ the LRFD methodology and are designed to be used in conjunction with the below referenced AASHTO LRFD Bridge Design Specifications. Changes in the 4th Edition reflect the latest research and developments, and specifications promulgated by AASHTO.

    The FHWA proposes to revise § 625.4(b)(3) to incorporate by reference the current version of the revised AASHTO bridge design specifications entitled AASHTO LRFD Bridge Design Specifications, 8th Edition. The AASHTO LRFD Bridge Design Specifications are intended for use in the design, evaluation, and rehabilitation of bridges, and are mandated by the FHWA for use on all bridges using Federal funding. These Specifications employ the LRFD methodology using factors developing from current statistical knowledge of loads and structural performance. Changes in the 8th Edition reflect the latest research, developments, and specifications promulgated by AASHTO.

    The FHWA proposes to make a minor editorial correction to the reference to the LRFD Movable Highway Bridge Design Specifications referenced in paragraph § 625.4(b)(4) to change “including” to “with” when citing the Interim Revisions.

    The FHWA proposes to revise § 625.4(b)(5) to incorporate by reference the current version of the revised AASHTO bridge welding code entitled AASHTO/AWS D1.5M/D1.5: 2015 Bridge Welding Code, 7th Edition; AASHTO, 2016. This document covers AASHTO welding requirements for welded highway bridges made from carbon and low-alloy construction steels. Chapters cover design of welded connections, workmanship, technique, procedure and performance qualification, inspection, and stud welding. Changes in the 7th Edition reflect the latest research, developments, and specifications promulgated by AASHTO and AWS.

    The FHWA proposes to revise § 625.4(b)(7) to incorporate by reference the current version of the revised AASHTO structural support specification entitled Standard Specifications for Structural Supports for Highway Sign, Luminaires, and Traffic Signals, 6th Edition, AASHTO, 2013, with 2015 Interim Revisions. These Standards are applicable to the structural design of supports for highway signs, luminaires, and traffic signals. The Standards are intended to serve as a standard and guide for the design, fabrication, and erection of these types of supports. Changes in the 2015 Interim Revisions reflect the latest research, developments, and specifications promulgated by AASHTO.

    The FHWA proposes to revise § 625.4(c)(2) to incorporate by reference the current version of the revised AASHTO sampling and testing specification entitled Standard Specifications for Transportation Materials and Methods of Sampling and Testing, and AASHTO Provisional Standards, AASHTO, 2017. These Standards contain specifications, test methods, and provisional standards commonly used in the construction of highway facilities. This edition of the standard specifications will replace those adopted by AASHTO in 1995. Changes in the 2016 standard specifications reflect current materials and testing technologies and practices.

    The FHWA proposes to revise § 625.4(c)(3) to update the title and cross-reference of the referenced regulation to “Quality Assurance Procedures for Construction.”

    Use of the updated standards will be required for all NHS projects authorized to proceed with design activities on or after the effective date of the final rule, subject to the exceptions in 23 CFR 625.3(f).

    Rulemaking Analyses and Notices

    All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after DOT has had the opportunity to review the comments submitted.

    Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), and USDOT Regulatory Policies and Procedures

    The FHWA has determined that this action does not constitute a significant regulatory action within the meaning of Executive Order (E.O.) 12866 or within the meaning of DOT regulatory policies and procedures. The proposed amendments would update several industry design standards and standard specifications adopted and incorporated by reference under 23 CFR part 625 and would remove the corresponding outdated or superseded versions of these standards and specifications. In addition, this action complies with the principles of E.O. 13563. After evaluating the costs and benefits of these proposed amendments, FHWA anticipates that the economic impact of this rulemaking would be minimal. These incremental changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. These updated standards and specifications represent the most recent refinements that professional organizations have formally accepted. The FHWA anticipates that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not necessary. Finally, this proposed rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 60l-612), FHWA has evaluated the effects of this proposed rule on small entities, such as local governments and businesses. Based on the evaluation, FHWA anticipates that this action would not have a significant economic impact on a substantial number of small entities. The proposed amendments would update several industry design standards and standard specifications adopted and incorporated by reference under 23 CFR part 625. The FHWA believes the projected impact upon small entities that utilize Federal-aid highway program funding for the development of highway improvement projects on the NHS would be negligible. Therefore, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act of 1995

    The FHWA has determined that this NPRM would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions proposed in this NPRM would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $155 million or more in any 1 year (when adjusted for inflation) in 2014 dollars for either State, local, and Tribal governments in the aggregate, or by the private sector. The FHWA will publish a final analysis, including its response to public comments, when it publishes a final rule. In addition, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

    Executive Order 13132 (Federalism Assessment)

    The FHWA has analyzed this proposed rule in accordance with the principles and criteria contained in E.O. 13132. The FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

    Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. This E.O. applies because State and local governments would be directly affected by the proposed regulation, which is a condition on Federal highway funding. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that the proposed rule does not contain collection of information requirements for the purposes of the PRA.

    National Environmental Policy Act

    The FHWA has analyzed this proposed rule for the purposes of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.) and has determined that this action would not have any effect on the quality of the human and natural environment because it only would make technical changes and incorporate by reference the latest versions of design standards and standard specifications previously adopted and incorporated by reference under 23 CFR part 625 and would remove the corresponding outdated or superseded versions of these standards and specifications. The proposed rule qualifies as a categorical exclusion to NEPA under 23 CFR 771.117(c)(20).

    Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed rule under EO13175, and believes that it would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal law. This proposed rule would not impose any direct compliance requirements on Indian Tribal governments nor would it have any economic or other impacts on the viability of Indian Tribes. Therefore, a Tribal summary impact statement is not required.

    Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this proposed action is not a significant energy action under the E.O. and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

    Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would effect a taking of private property or otherwise have taking implications under E.O. 12630.

    Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this proposed action under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action would not cause an environmental risk to health or safety that may disproportionately affect children.

    Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise any environmental justice issues.

    Regulation Identifier Number

    A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    List of Subjects in 23 CFR part 625: Design standards, Grant programs-transportation, Highways and roads, Incorporation by reference. Issued on: April 30, 2018. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to amend 23 CFR part 625 as follows:

    PART 625—DESIGN STANDARDS FOR HIGHWAYS 1. The authority citation for part 625 continues to read as follows: Authority:

    23 U.S.C. 109, 315, and 402; Sec. 1073 of Pub. L. 102-240, 105 Stat. 1914, 2012; 49 CFR 1.48(b) and (n).

    2. Amend § 625.4 by; a. Removing the introductory text; b. Revising paragraphs (a)(2), (b)(2) through (5), (7), (c)(2) and (3), (d)(1)(ii), (iv) through (viii); c. Adding paragraph (d)(1)(ix), and d. Revising the introductory text of (d)(2).

    The revision and additions read as follows:

    § 625.4 Standards, policies, and standard specifications.

    (a) * * *

    (2) A Policy on Design StandardsInterstate System, AASHTO, May 2016 (incorporated by reference; see § 625.4(d)).

    (b) * * *

    (2) AASHTO LRFD Bridge Construction Specifications, 4th Edition, AASHTO, 2017 (incorporated by reference; see § 625.4(d)).

    (3) AASHTO LRFD Bridge Design Specifications, 8th Edition, AASHTO, 2017 (incorporated by reference; see § 625.4(d)).

    (4) AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd Edition, AASHTO, 2007, with 2008, 2010, 2011, 2012, 2014, and 2015 Interim Revisions, (incorporated by reference; see § 625.4(d)).

    (5) AASHTO/AWS D1.5M/D1.5:2015 Bridge Welding Code, 7th Edition, AASHTO, 2016 (incorporated by reference; see § 625.4(d)).

    (7) Standard Specifications for Structural Supports for Highway Signs, Luminaires, and Traffic Signals, 6th Edition, AASHTO, 2013, with 2015 Interim Revisions (incorporated by reference; see § 625.4(d)).

    (c) Materials.

    (2) Standard Specifications for Transportation Materials and Methods of Sampling and Testing, and AASHTO Provisional Standards, AASHTO, 2017. (incorporated by reference, see § 625.4(d)(1)).

    (3) Quality Assurance Procedures for Construction, refer to 23 CFR part 637, subpart B.

    (d) * * *

    (1) * * *

    (ii) A Policy on Design Standards—Interstate System, May 2016.

    (iv) AASHTO LRFD Bridge Construction Specifications, 4th Edition, 2017.

    (v) AASHTO LRFD Bridge Design Specifications, 8th Edition, 2017.

    (vi) AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd Edition, 2007; with 2008, 2010, 2011, 2012, 2014, and 2015 Interim Revisions.

    (vii) AASHTO/AWS D1.5M/D1.5: 2015 Bridge Welding Code, 7th Edition, 2016.

    (viii) Standard Specifications for Structural Supports for Highway Signs, Luminaires, and Traffic Signals, 6th Edition, 2013; with 2015 Interim Revisions.

    (ix) Standard Specifications for Transportation Materials and Methods of Sampling and Testing, and AASHTO Provisional Standards, AASHTO, 2017.

    (2) American Welding Society (AWS), 8669 NW 36 Street, # 130 Miami, FL 33166-6672; www.aws.org; or (800) 443-9353 or (305) 443-9353.

    [FR Doc. 2018-09609 Filed 5-10-18; 8:45 am] BILLING CODE 4910-22-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R10-OAR-2017-0582; FRL-9977-96—Region 10] Air Plan Approval; ID, Pinehurst PM10 Redesignation, Limited Maintenance Plan; West Silver Valley 2012 Annual PM2.5 Emission Inventory AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On September 29, 2017, the Idaho Department of Environmental Quality (IDEQ) submitted a redesignation request and limited maintenance plan (LMP) for particulate matter with an aerodynamic diameter less than or equal to ten micrometers (PM10) for the PM10 National Ambient Air Quality Standard (NAAQS) developed for the Pinehurst PM10 Nonattainment Area (NAA) and Pinehurst PM10 Expansion Nonattainment Area (NAA). The redesignation request asserts that the area meets the Clean Air Act (CAA) requirements for redesignation identified in section 107(d)(3)(E). This limited maintenance plan for these contiguous nonattainment areas addresses maintenance of the PM10 standard for a ten-year period beyond redesignation. The Environmental Protection Agency (EPA) proposes to approve this IDEQ Implementation Plan (SIP) revision. The EPA also proposes to approve the September 15, 2013, high wind exceptional event at the Pinehurst monitoring station. Additionally, the EPA is proposing to approve the emissions inventory for the West Silver Valley annual PM2.5 NAA.

    DATES:

    Written comments must be received on or before June 11, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2017-0582, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Justin Spenillo, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave., Suite 900, Seattle, WA 98101; telephone number: 206-553-6125, email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, wherever “we”, “us” or “our” are used, it is intended to refer to the EPA.

    Table of Contents I. This Action II. Background A. PM10 NAAQS B. Pinehurst PM10 NAA and Planning Background III. Requirements for Redesignation A. CAA Requirements for Redesignation of Nonattainment Area B. The LMP Option for PM10 Nonattainment Areas C. Conformity Under the LMP Option IV. Review of the Idaho Submittal Addressing the Requirements for Redesignation and LMPs A. Has the Pinehurst PM10 NAA attained the applicable NAAQS? B. Does the Pinehurst PM10 NAA have a fully approved SIP under section 110(k) of the CAA? C. Has the IDEQ met all applicable requirements under section 110 and Part D of the CAA? D. Has the IDEQ demonstrated that the air quality improvement is due to permanent and enforceable reductions? E. Does the area have a fully approved maintenance plan pursuant to section 175A of the CAA? F. Has the IDEQ demonstrated that the Pinehurst PM10 NAA qualifies for the LMP Option? G. Does the IDEQ have an approved attainment emissions inventory which can be used to demonstrate attainment of the NAAQS? H. Does the LMP include an assurance of continued operation of an appropriate EPA-approved air quality monitoring network, in accordance with 40 CFR part 58? I. Does the plan meet the clean air act requirements for contingency provisions? J. How is conformity treated under a limited maintenance plan? V. 2013 p.m.10 High Wind Exceptional Event VI. West Silver Valley 2012 Annual PM2.5 Emission Inventory A. Requirements for Emissions Inventories B. West Silver Valley PM2.5 Base Year Emissions Inventory C. EPA's Evaluation VII. Proposed Action VIII. Statutory and Executive Order Reviews I. This Action

    The EPA is proposing to approve the limited maintenance plan (LMP) submitted by the Idaho Department of Environmental Quality (IDEQ) on September 29, 2017, for the Pinehurst PM10 Nonattainment Area (NAA) and Pinehurst PM10 Expansion NAA and to concurrently redesignate the areas to attainment for the PM10 National Ambient Air Quality Standard (NAAQS). Throughout this notice, Pinehurst PM10 NAA shall refer to both the original Pinehurst PM10 NAA and Pinehurst PM10 Expansion NAA unless noted otherwise. The EPA has reviewed air quality data for the area and determined that the Pinehurst NAA attained the PM10 NAAQS by the required attainment date, and that monitoring data continue to show attainment. The EPA is proposing to approve exclusion of data from a high wind exceptional event on September 15, 2013, that impacted PM10 values at the Pinehurst monitor as they are needed to meet the LMP criteria. Separately, the EPA is proposing to approve the base year emission inventory for the West Silver Valley (WSV) PM2.5 NAA in the Silver Valley, Idaho.

    II. Background A. PM10 NAAQS

    “Particulate matter,” also known as particle pollution or PM, is a complex mixture of extremely small particles and liquid droplets. The size of particles is directly linked to their potential for causing health problems. The EPA is concerned about particles that are 10 micrometers in diameter or smaller because those are the particles that generally pass through the throat and nose and enter the lungs. Once inhaled, these particles can affect the heart and lungs and can cause serious adverse health effects. People with heart or lung diseases, children and older adults are the most likely to be affected