Federal Register Vol. 83, No.96,

Federal Register Volume 83, Issue 96 (May 17, 2018)

Page Range22831-23206
FR Document

83_FR_96
Current View
Page and SubjectPDF
83 FR 23008 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Pricing Schedule at Section II To Clarify Fees Applicable To Correcting “As/of” or “Reversal” TradesPDF
83 FR 23205 - Mother's Day, 2018PDF
83 FR 23203 - Peace Officers Memorial Day and Police Week, 2018PDF
83 FR 23201 - National Defense Transportation Day and National Transportation Week, 2018PDF
83 FR 22981 - Sunshine Act MeetingPDF
83 FR 22836 - Airworthiness Directives; CFM International S.A. Turbofan EnginesPDF
83 FR 22848 - PassportsPDF
83 FR 22852 - Assistance to and Support of Dependents; Paternity ComplaintsPDF
83 FR 22967 - Federal Need Analysis Methodology for the 2019-20 Award Year-Federal Pell Grant, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant ProgramsPDF
83 FR 22989 - Royalty Policy Committee; Public MeetingPDF
83 FR 22854 - Pyroxasulfone; Pesticide TolerancesPDF
83 FR 22978 - Certain New Chemicals or Significant New Uses; Statements of Findings for February and March 2018PDF
83 FR 22972 - Pesticide Product Registration; Receipt of Applications for New Active IngredientsPDF
83 FR 22976 - FIFRA Scientific Advisory Panel; Notice of 4-Day In-Person Meeting Location; Notice of Public Preparatory Webcast Meeting; Request for Comments on Prospective Candidate Ad Hoc Reviewers; Extension of Written Comment PeriodsPDF
83 FR 22982 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 22908 - Air Plan Approval; California; San Joaquin Valley Unified Air Pollution Control District; Reasonably Available Control Technology DemonstrationPDF
83 FR 22853 - Air Plan Approval; Oregon; Regional Haze Progress ReportPDF
83 FR 22974 - Order Denying Petition To Set Aside Consent Agreement and Proposed Final OrderPDF
83 FR 22846 - Medical Devices; Exemption From Premarket Notification: Class II Devices; Surgical ApparelPDF
83 FR 22952 - Magnesium Metal From the People's Republic of China: Final Determination of No Shipments; Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 22997 - Business and Operations Advisory Committee; Notice of MeetingPDF
83 FR 22996 - Proposal Review Panel for Physics; Notice of MeetingPDF
83 FR 22982 - Notice of Agreements FiledPDF
83 FR 22959 - Fresh Garlic From the People's Republic of China: Preliminary Rescission of the New Shipper ReviewPDF
83 FR 22995 - Submission for OMB Review, Comment Request, Proposed Collection: IMLS Grant Application FormsPDF
83 FR 22960 - Utility Scale Wind Towers From the People's Republic of China: Final Results of the Expedited First Sunset Review of the Countervailing Duty OrderPDF
83 FR 22997 - New Postal ProductsPDF
83 FR 22957 - Forged Steel Fittings From Taiwan: Affirmative Preliminary Determination of Sales at Less Than Fair ValuePDF
83 FR 22983 - Anesthesiology and Respiratory Therapy Devices Panel of the Medical Devices Advisory Committee; Notice of MeetingPDF
83 FR 22984 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Food and Cosmetic Export Certificate Application ProcessPDF
83 FR 22982 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 22945 - Notice of Request for Revision of a Currently Approved Information CollectionPDF
83 FR 22954 - Forged Steel Fittings From Italy: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional MeasuresPDF
83 FR 22948 - Forged Steel Fittings From the People's Republic of China: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional MeasuresPDF
83 FR 22945 - Certain Steel Threaded Rod From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review and Rescission of Antidumping Duty Administrative Review, in Part; 2016-2017PDF
83 FR 22953 - Countervailing Duty Investigation of Laminated Woven Sacks From the Socialist Republic of Vietnam: Postponement of Preliminary DeterminationPDF
83 FR 22996 - Submission for OMB Review, Comment Request, Proposed Collection: IMLS “2019-2022 National Leadership Grants for Libraries and Laura Bush 21st Century Librarian Grants”PDF
83 FR 23040 - Reports, Forms, and Record Keeping RequirementsPDF
83 FR 22832 - VSTA Records and Reports Specific to International Standards for PharmacovigilancePDF
83 FR 22993 - Maritime Regulatory ReformPDF
83 FR 23042 - Pipeline Safety: Information Collection ActivitiesPDF
83 FR 22988 - June 18, 2018 Foreign Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 22971 - Combined Notice of Filings #1PDF
83 FR 22963 - Patent and Trademark Public Advisory CommitteesPDF
83 FR 22966 - Proposed Collection; Comment RequestPDF
83 FR 22842 - Revisions to the Unverified List (UVL)PDF
83 FR 23036 - Aviation Rulemaking Advisory Committee; MeetingPDF
83 FR 22964 - Proposed Collection; Comment RequestPDF
83 FR 23037 - Petition for Exemption; Summary of Petition Received; Silver Airways LLCPDF
83 FR 22992 - Preparations for the 35th Session of the UN Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS)PDF
83 FR 22965 - Proposed Collection; Comment RequestPDF
83 FR 22991 - Certain Microperforated Packaging Containing Fresh Produce; Commission Determination Not To Review an Initial Determination Granting a Motion To Terminate the Investigation as to Respondent Apio, Inc. Based On A Settlement and License Agreement; Termination of the Investigation in Its EntiretyPDF
83 FR 22965 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
83 FR 23039 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel THE WESTERN STAR; Invitation for Public CommentsPDF
83 FR 23037 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SIMPATICA; Invitation for Public CommentsPDF
83 FR 23040 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SHANGRI-LA; Invitation for Public CommentsPDF
83 FR 23038 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel RESOLVE DISCOVERY; Invitation for Public CommentsPDF
83 FR 23039 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ANOMALY; Invitation for Public CommentsPDF
83 FR 22966 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
83 FR 23020 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of Amendment No. 1 and Notice of No Objection To Advance Notice Filing, as Modified by Amendment No. 1, To Implement Changes to the Method of Calculating Netting Members' Margin in the Government Securities Division RulebookPDF
83 FR 22985 - Agency Information Collection Request. 30-Day Public Comment RequestPDF
83 FR 22987 - Agency Information Collection Request. 30-Day Public Comment RequestPDF
83 FR 22938 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery of the South Atlantic Region; Amendment 43PDF
83 FR 22907 - Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III)PDF
83 FR 22991 - Carbon and Certain Alloy Steel Wire Rod From Italy, Korea, Spain, Turkey, and the United Kingdom; DeterminationsPDF
83 FR 22990 - Steel Wheels From ChinaPDF
83 FR 23032 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of Proposed Rule Change To Introduce a Floor to the Calculation of the Fails Charges and Make Other ChangesPDF
83 FR 23014 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide Users With Connectivity to Three Additional Third Party Data Feeds and Change Its Price List Related to These Co-Location ServicesPDF
83 FR 23007 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Marketing Fee Program With Respect to the Russell 2000 Index OptionsPDF
83 FR 23009 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide Users With Connectivity to Three Additional Third Party Data Feeds and To Change the NYSE American Equities Price List and the NYSE American Options Fee Schedule Related to These Co-Location ServicesPDF
83 FR 22999 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Provide Users With Connectivity to Three Additional Third Party Data Feeds and Change the NYSE Arca Options Fees and Charges and the NYSE Arca Equities Fees and Charges Related to These Co-location ServicesPDF
83 FR 22998 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Establish a New Optional Listing Category on the Exchange, “LTSE Listings on IEX”PDF
83 FR 23005 - BlackRock Advisors, LLC, et al.PDF
83 FR 22981 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 22979 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 22883 - Airworthiness Directives; Sikorsky Aircraft CorporationPDF
83 FR 22886 - Airworthiness Directives; Airbus HelicoptersPDF
83 FR 22998 - New Postal ProductPDF
83 FR 22992 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved Collection; Claim for Damage, Injury, or DeathPDF
83 FR 22944 - Draft Environmental Impact Statement and Preliminary Pest Risk Assessment for Permit for Release of Genetically Engineered Citrus tristeza virusPDF
83 FR 22831 - General Regulations for Federal Fruit, Vegetable, and Specialty Crop Marketing Agreements and Orders; Authority To Meet Via Electronic CommunicationsPDF
83 FR 22894 - Safety Zone for Marine Events, Delaware River; Philadelphia, PAPDF
83 FR 22849 - Missouri Regulatory ProgramPDF
83 FR 23036 - Notice of Public MeetingPDF
83 FR 22962 - Proposed Information Collection; Comment Request; NOAA Restoration Center Performance Progress ReportPDF
83 FR 22963 - Submission for OMB Review; Comment RequestPDF
83 FR 22918 - National Priorities ListPDF
83 FR 23046 - Announcement of Funding AwardsPDF
83 FR 22859 - National Priorities ListPDF
83 FR 22913 - Air Plan Approval; Minnesota; PSD Infrastructure SIP RequirementsPDF
83 FR 22891 - Proposed Amendment and Establishment of Multiple Air Traffic Service (ATS) Routes; Western United StatesPDF
83 FR 22986 - Institutional Review Board Written Procedures: Guidance for Institutions and Institutional Review Boards; AvailabilityPDF
83 FR 22865 - General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety RegulationsPDF
83 FR 22896 - Group Registration of SerialsPDF
83 FR 22902 - Group Registration of NewslettersPDF
83 FR 22889 - Proposed Revocation of Class D and E Airspace; Fort Sill; and Amendment of Class D and E Airspace; Lawton, OKPDF
83 FR 22888 - Proposed Establishment of Class E Airspace; Freeport, PAPDF
83 FR 22840 - Amendment of Class D Airspace and Class E Airspace; Greenwood, MSPDF
83 FR 22839 - Amendment of Class E Airspace; Hamilton, NYPDF
83 FR 22923 - Regulation of Business Data Services for Rate-of-Return Local Exchange CarriersPDF

Issue

83 96 Thursday, May 17, 2018 Contents Agricultural Marketing Agricultural Marketing Service RULES General Regulations for Federal Fruit, Vegetable, and Specialty Crop Marketing Agreements and Orders; Authority To Meet Via Electronic Communications, 22831-22832 2018-10487 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Rural Business-Cooperative Service

AIRFORCE Air Force Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22964-22965 2018-10525 Animal Animal and Plant Health Inspection Service RULES Virus-Serum-Toxin Act Records and Reports Specific to International Standards for Pharmacovigilance, 22832-22836 2018-10540 NOTICES Environmental Impact Statements; Availability, etc.: Permit for Release of Genetically Engineered Citrus tristeza virus; Preliminary Pest Risk Assessment, 22944-22945 2018-10490 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22965 2018-10522 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: How TANF Agencies Support Families Experiencing Homelessness, 22982-22983 2018-10550 Coast Guard Coast Guard PROPOSED RULES Safety Zones: Marine Events, Delaware River; Philadelphia, PA, 22894-22896 2018-10486 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Copyright Royalty Board Copyright Royalty Board PROPOSED RULES Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III), 22907-22908 2018-10509 Defense Department Defense Department See

Air Force Department

See

Army Department

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22966-22967 2018-10529 Charter Renewals: Defense Science Board, 22966 2018-10514 U.S. Strategic Command Strategic Advisory Group, 22965-22966 2018-10520
Education Department Education Department NOTICES Federal Need Analysis Methodology for the 2019-20 Award Year: Federal Pell Grant, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant Programs, 22967-22971 2018-10586 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Oregon; Regional Haze Progress Report, 22853-22854 2018-10569 National Priorities List, 22859-22865 2018-10464 Pesticide Tolerances: Pyroxasulfone, 22854-22859 2018-10582 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; San Joaquin Valley Unified Air Pollution Control District; Reasonably Available Control Technology Demonstration, 22908-22913 2018-10571 Minnesota; PSD Infrastructure SIP Requirements, 22913-22918 2018-10458 National Priorities List, 22918-22923 2018-10466 NOTICES Certain New Chemicals or Significant New Uses: Statements of Findings for February and March 2018, 22978-22979 2018-10579 Denial of Petition To Set Aside Consent Agreement and Proposed Final Order, 22974-22976 2018-10568 Meetings: Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel, 22976-22978 2018-10577 Pesticide Product Registrations; Applications: New Active Ingredients, 22972-22974 2018-10578 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: CFM International S.A. Turbofan Engines, 22836-22839 2018-10657 Amendment of Class D and Class E Airspace: Greenwood, MS, 22840-22842 2018-10389 Amendment of Class E Airspace: Hamilton, NY, 22839-22840 2018-10387 PROPOSED RULES Air Traffic Service Routes: Western United States, 22891-22894 2018-10446 Airworthiness Directives: Airbus Helicopters, 22886-22888 2018-10494 Sikorsky Aircraft Corporation, 22883-22886 2018-10495 Establishment of Class E Airspace: Freeport, PA, 22888-22889 2018-10390 Revocation of Class D and E Airspace; Amendment of Class D and E Airspace: Fort Sill; Lawton, OK, 22889-22891 2018-10391 NOTICES Meetings: Aviation Rulemaking Advisory Committee, 23036-23037 2018-10527 Petitions for Exemption; Summaries: Silver Airways LLC, 23037 2018-10524 Federal Communications Federal Communications Commission PROPOSED RULES Regulation of Business Data Services for Rate-of-Return Local Exchange Carriers, 22923-22938 2018-10338 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22979-22981 2018-10497 2018-10498 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 22981 2018-10683 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 22971-22972 2018-10535 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 22982 2018-10558 Federal Motor Federal Motor Carrier Safety Administration RULES General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations, 22865-22882 2018-10437 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 22982 2018-10575 Fish Fish and Wildlife Service NOTICES Permit Applications: Foreign Endangered Species, 22988-22989 2018-10536 Food and Drug Food and Drug Administration RULES Medical Devices: Exemption From Premarket Notification: Class II Devices; Surgical Apparel, 22846-22848 2018-10563 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Food and Cosmetic Export Certificate Application Process, 22984-22985 2018-10551 Meetings: Anesthesiology and Respiratory Therapy Devices Panel of the Medical Devices Advisory Committee, 22983-22984 2018-10552 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22985-22988 2018-10511 2018-10512 Guidance: Institutional Review Board Written Procedures, 22986-22987 2018-10441
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Announcement of Funding Awards, 23046-23197 2018-10465 Industry Industry and Security Bureau RULES Revisions to the Unverified List, 22842-22846 2018-10528 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2019-2022 National Leadership Grants for Libraries and Laura Bush 21st Century Librarian Grants, 22996 2018-10543 Grant Application Forms, 22995-22996 2018-10556 Interior Interior Department See

Fish and Wildlife Service

See

Surface Mining Reclamation and Enforcement Office

NOTICES Meetings: Royalty Policy Committee, 22989-22990 2018-10584
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Steel Threaded Rod From the People's Republic of China, 22945-22948 2018-10546 Fresh Garlic From the People's Republic of China: Preliminary Rescission of the New Shipper Review, 22959-22960 2018-10557 Laminated Woven Sacks From the Socialist Republic of Vietnam: Postponement of Preliminary Determination, 22953-22954 2018-10544 Magnesium Metal From the People's Republic of China, 22952-22953 2018-10562 Utility Scale Wind Towers From the People's Republic of China, 22960-22962 2018-10555 Determinations of Sales at Less Than Fair Value: Forged Steel Fittings From Italy, 22954-22957 2018-10548 Forged Steel Fittings From Taiwan, 22957-22959 2018-10553 Forged Steel Fittings From the People's Republic of China, 22948-22952 2018-10547 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Carbon and Certain Alloy Steel Wire Rod From Italy, Korea, Spain, Turkey, and the United Kingdom, 22991-22992 2018-10507 Certain Microperforated Packaging Containing Fresh Produce, 22991 2018-10521 Steel Wheels From China, 22990 2018-10506 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Claim for Damage, Injury, or Death, 22992 2018-10492 Labor Department Labor Department See

Occupational Safety and Health Administration

Library Library of Congress See

Copyright Royalty Board

PROPOSED RULES Group Registration of Newsletters, 22902-22907 2018-10420 Group Registration of Serials, 22896-22902 2018-10422
Management Management and Budget Office NOTICES Maritime Regulatory Reform, 22993-22995 2018-10539 Maritime Maritime Administration NOTICES Requests for Administrative Waivers of Coastwise Trade Laws: Vessel ANOMALY, 23039 2018-10515 Vessel RESOLVE DISCOVERY, 23038 2018-10516 Vessel SHANGRI-LA, 23040 2018-10517 Vessel SIMPATICA, 23037-23038 2018-10518 Vessel THE WESTERN STAR, 23039-23040 2018-10519 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reports, Forms, and Record Keeping Requirements, 23040-23042 2018-10542 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery of the South Atlantic Region; Amendment 43, 22938-22943 2018-10510 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22963 2018-10478 Agency Information Collection Activities; Proposals, Submissions, and Approvals: NOAA Restoration Center Performance Progress Report, 22962-22963 2018-10479 National Science National Science Foundation NOTICES Meetings: Business and Operations Advisory Committee, 22997 2018-10561 Proposal Review Panel for Physics, 22996-22997 2018-10560 Navy Navy Department RULES Assistance to and Support of Dependents; Paternity Complaints, 22852-22853 2018-10587 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Meetings: United Nations Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals, 22992-22993 2018-10523 Patent Patent and Trademark Office NOTICES Request for Nominations: Patent and Trademark Public Advisory Committees, 22963-22964 2018-10530 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23042-23043 2018-10538 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 22997-22998 2018-10493 2018-10554 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Mother's Day (Proc. 9749), 23205-23206 2018-10721 National Defense Transportation Day and National Transportation Week (Proc. 9747), 23199-23202 2018-10719 Peace Officers Memorial Day and Police Week (Proc. 9748), 23203-23204 2018-10720 Rural Business Rural Business-Cooperative Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22945 2018-10549 Securities Securities and Exchange Commission NOTICES Applications: BlackRock Advisors, LLC, et al., 23005-23007 2018-10499 Self-Regulatory Organizations; Proposed Rule Changes: Cboe Exchange, Inc., 23007-23008 2018-10503 Fixed Income Clearing Corp., 23020-23036 2018-10505 2018-10513 Investors Exchange LLC, 22998-22999 2018-10500 Nasdaq PHLX, LLC, 23008 C1--2018--08729 New York Stock Exchange LLC, 23014-23020 2018-10504 NYSE American LLC, 23009-23014 2018-10502 NYSE Arca, Inc., 22999-23005 2018-10501 State Department State Department RULES Passports, 22848-22849 2018-10653 NOTICES Meetings: International Maritime Organization's Sub-Committee on Human Element, Training and Watch Keeping, 23036 2018-10480 Surface Mining Surface Mining Reclamation and Enforcement Office RULES Missouri Regulatory Program, 22849-22852 2018-10482 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Separate Parts In This Issue Part II Housing and Urban Development Department, 23046-23197 2018-10465 Part III Presidential Documents, 23199-23206 2018-10721 2018-10719 2018-10720 Reader Aids

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

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

83 96 Thursday, May 17, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 900 [Doc. No. AMS-SC-17-0086; SC18-900-1 FR] General Regulations for Federal Fruit, Vegetable, and Specialty Crop Marketing Agreements and Orders; Authority To Meet Via Electronic Communications AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule amends the general regulations for Federal fruit, vegetable, and specialty crop marketing agreements and marketing orders (orders) and allows such programs to conduct meetings and vote using electronic means of communication.

DATES:

Effective May 17, 2018.

FOR FURTHER INFORMATION CONTACT:

Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259-1502, or Julie Santoboni, 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 final rule is issued under the general regulations for Federal marketing agreements and orders (7 CFR part 900), effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866, 13563, and 13175. 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 the Office of Management and Budget's (OMB) 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 final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.

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. Such 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 final rule authorizes administrative bodies of Federal fruit, vegetable, and specialty crop orders that currently do not have authority to conduct meetings using electronic communication means to do so.

This action also stipulates that each program follow its respective quorum and voting requirements when conducting meetings via electronic communication. Lastly, this action allows administrative bodies to recommend, subject to approval by the Secretary of Agriculture (Secretary), new requirements specific to meetings and verifying votes made at meetings conducted other than in-person.

Adding this authority increases operating efficiencies by adding flexibility to the methods by which meetings may be held and decisions made. Additionally, time and travel costs of attending meetings will be reduced. Of the 29 fruit, vegetable, and specialty crop orders currently in effect, six either do not have authority to meet other than in person or are limited specifically to phone or mail voting as alternatives.

Administrative Procedure Act and Regulatory Flexibility Act

This final rule establishes agency rules of practice and procedure. Under the Administrative Procedure Act (APA), prior notice and opportunity for comment are not required for the promulgation of agency rules of practice and procedure. 5 U.S.C. 553 (b)(3)(A). Only substantive rules require publication 30 days prior to their effective date. 5 U.S.C. 553 (d). Therefore, this final rule is effective upon publication in the Federal Register.

In addition, because prior notice and opportunity for comment are not required to be provided for this final rule, this rule is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

Paperwork Reduction Act

This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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 final rule.

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.

List of Subjects in 7 CFR Part 900

Administrative practice and procedure, Freedom of information, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth above, 7 CFR part 900 is amended as follows:

PART 900—GENERAL REGULATIONS 1. The authority citation for part 900 continues to read as follows: Authority:

7 U.S.C. 601-674 and 7 U.S.C. 7401.

2. Add § 900.83 to subpart E read as follows:
§ 900.83 Conducting Meetings via Electronic Communication or Otherwise.

Notwithstanding any other provisions of a marketing order in this part, administrative bodies of fruit, vegetable, and specialty crop marketing orders, and their committees/subcommittees may, upon due notice to all members and the public:

(a) Conduct meetings by any means of communication available, electronic or otherwise, that effectively assembles members and the public, and facilitates open communication.

(b) Vote by any means of communication available, electronic or otherwise; Provided, That votes cast are verifiable and that quorum and other procedural requirements of each respective marketing order are met.

(c) With the approval of the Secretary, each administrative body may prescribe any additional procedures necessary to carry out the objectives of paragraphs (a) and (b) of this section.

Dated: May 11, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-10487 Filed 5-16-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 101 and 116 [Docket No. APHIS-2014-0063] RIN 0579-AE11 VSTA Records and Reports Specific to International Standards for Pharmacovigilance AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the Virus-Serum-Toxin Act regulations concerning records and reports. This change requires veterinary biologics licensees and permittees to record and submit reports concerning adverse events associated with the use of biological products they produce or distribute. The information that must be included in the adverse event reports submitted to the Animal and Plant Health Inspection Service (APHIS) will be provided in separate guidance documents. These records and reports will help ensure that APHIS can provide complete and accurate information to consumers regarding adverse reactions or other problems associated with the use of licensed biological products.

DATES:

Effective June 18, 2018.

FOR FURTHER INFORMATION CONTACT:

Dr. Donna L. Malloy, Section Leader, Operational Support, Center for Veterinary Biologics Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737-1231; (301) 851-3426.

SUPPLEMENTARY INFORMATION:

Background

The Virus-Serum-Toxin Act regulations in 9 CFR part 116 (referred to below as the regulations) contain requirements for maintaining detailed records of information necessary to give a complete accounting of all the activities within a veterinary biologics establishment. These records include records and reports for unfavorable or unintended events that occur in animals after the use of a biological product.

On September 4, 2015, we published in the Federal Register (80 FR 53475-53478, Docket No. APHIS-2014-0063) a proposal 1 to amend the regulations by establishing definitions for the terms adverse event and adverse event report and by providing requirements for adverse event records and reports. The changes we proposed are consistent with guidelines set out by the International Cooperation on Harmonization of Technical Requirements for Registration of Veterinary Medicinal Products (VICH). VICH is a unique project conducted under the World Organization for Animal Health that brings together the regulatory authorities of the European Union, Japan, and the United States and representatives from the animal health industry in the three regions. Regulatory authorities and industry experts from Australia, Canada, and New Zealand participate as observers.

1 To view the proposed rule, supporting document, and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0063.

The purpose of VICH is to harmonize technical requirements for veterinary medicinal products (both pharmaceuticals and biologics). As a VICH member, the Animal and Plant Health Inspection Service (APHIS) provides expertise on veterinary biological products and participates in efforts to enhance harmonization. Both APHIS and the animal health industry are committed to seek scientifically based harmonized technical requirements for the development and use of veterinary biological products. VICH Guideline GL42: Pharmacovigilance: Data Elements for Submission of Adverse Events Reports specifically addresses the information that should be included when submitting adverse event reports.2

2 The VICH pharmacovigilance guidelines can be accessed at http://www.vichsec.org/guidelines/pharmacovigilance.html.

We solicited comments concerning our proposal for 60 days ending November 3, 2015. We received four comments by that date. They were from industry associations, a manufacturer of veterinary biologics, and a private citizen. The commenters were generally supportive of the proposed rule but asked some questions and raised some concerns about the provisions. These comments are discussed below by topic.

General Comments

One commenter stated that the current system for detecting safety issues with products has historically worked well. The commenter did not believe there have been significant safety issues that have not been detected in a timely fashion.

APHIS agrees with the commenter that the existing system has worked well. However, we believe that this rule will significantly improve the existing system by enhancing our ability to monitor the observed performance of veterinary biologics. For example, currently each veterinary biologics manufacturer makes an independent determination concerning whether an adverse event report raises questions regarding purity, safety, potency, efficacy, preparation, testing, or distribution, and when and in what manner such a report of the adverse event will be provided to APHIS. Thus, without explicit reporting requirements concerning adverse events, reports that may signal problems concerning the use of veterinary biological products may not all be submitted to APHIS or may not be submitted in a timely manner. Another objective of this rule is to implement VICH guidelines pertaining to international standards specific for pharmacovigilance, which may enhance the ability of the biologics industry to export their products.

One commenter noted that the only VICH guideline specifically referenced in the proposed rule is VICH GL42. The commenter stated that where the final rule, guidance documents, or APHIS practice touches upon the subject matter in the VICH guidelines, APHIS should look to all the VICH guidelines to harmonize definitions and practices to the furthest extent possible. The commenter specifically mentioned VICH GL24, Pharmacovigilance of Veterinary Medicinal Products: Management of Adverse Event Reports as one which APHIS should consider when establishing future regulations or guidelines.

APHIS agrees that consistency with all relevant VICH guidelines is important. In the proposed rule, we referenced GL42 because we were proposing to add definitions to 9 CFR part 101 which are consistent with definitions found in this guideline. In future actions, however, we will reference all VICH guidelines regarding pharmacovigilance. We will also review all VICH guidelines associated with pharmacovigilance and consider them when developing future guidance documents, and will provide an opportunity for the industry to review and comment on any such documents.

One commenter stated that this rule should not be implemented until APHIS has the capability to receive submissions electronically. The commenter further stated that in establishing this capability APHIS should utilize the VICH Guidelines for the Electronic Standards for Transfer of Data, and Data Elements for Submission of Adverse Event Reports (VICH GL42, 30, and 35).

APHIS agrees on the importance of electronic submission and we will prioritize the development of an electronic submission portal. However we do not agree that this rule should not be implemented until we have the capacity to receive electronic submissions. As noted above by another commenter, the current system for detecting safety signals with products has historically worked well. APHIS has, and will continue to have, the capability to receive adverse event information by phone, fax, email, etc. It is important to implement this rule in order to clarify specific reporting requirements and to harmonize with international standards. Since we already receive adverse event reports, we do not believe it is necessary to wait for the development of an electronic submission portal.

One commenter stated that the same adverse event may be reported separately by two or more parties, such as the veterinarian and animal owner. The commenter stated that APHIS should ensure that it has the capability to detect any duplicate reports.

We agree with the commenter and will work to develop internal systems to detect duplicate reports.

One commenter recommended that APHIS engage the industry in substantial discussion relative to the method and process it will use for signal detection and trend analysis and signal assessment and management. The commenter stated that government and industry have the same goal of marketing pure, potent, safe, and effective products and industry is open to maintaining a partnership in signal detection, trend analysis, and risk management.

APHIS agrees with the commenter and will continue to engage with industry as future guidance is developed.

One commenter asked for clarification of APHIS expectations on the maintenance of pharmacovigilance data and practices when a facility is inspected.

Proposed § 116.9(a) provides that records must be maintained for 3 years after the date that the adverse event report is received.

One commenter asked for clarification on the aspects of the adverse event data that will be subject to the Freedom of Information Act (FOIA) and/or routinely made available on the APHIS website. The commenter stated that they expected that FOIA requests for this data will be received and that this data has tremendous potential for misuse. The commenter strongly suggested that if the data is made available on the APHIS website, information should also be provided about the limitations on interpreting the data.

In general, if APHIS receives a FOIA request for publicly available information, we do not need to supply the information to the requester. Instead, we provide guidance on where the information is available and how often it is updated. If the FOIA request is for specific data that is not available publicly, then we are mandated to supply the information in its entirety without redaction. If it is information owned by a biologics manufacturer, then APHIS will send the FOIA request and responsive records to the manufacturer for review and redaction, if the responsive records contain confidential business information or trade secrets.

Because the adverse event reports we receive are voluntary, APHIS has not yet made summary reports available to the public. We are aware that the number of adverse event reports received are a very small percentage of what is occurring in the field. After mandatory adverse event reporting is implemented, APHIS will make summary reports publicly available on the APHIS website. APHIS is working to determine the specifics on how often those reports are published and what explanatory information is included.

Though we have not finalized a process to manage this data publicly, we do agree with the commenter about the limitations on interpreting the data when made public. For example, comparing products by the prevalence of adverse event cases reported can be misleading if one does not consider the number of animals exposed for each respective product. Prior to implementing the process for public disclosure of the data, we will explore the method that best serves all veterinary biologics stakeholders. Included in this will be the review and consideration of how the Food and Drug Administration handles their pharmacovigilance data.

One commenter recommended that APHIS remove the adverse event reporting restrictions on the licenses for conditionally licensed products. The commenter also recommended that APHIS engage with State veterinarians and inform them that adverse events will be made public and that the industry should not be required by the State to provide additional reports.

APHIS intends to engage with State veterinarians and other public groups to advise them of the availability of adverse event reports on the APHIS website. However, we will not remove adverse reporting restrictions on licenses because there may be specific issues associated with a product that require clarification on the license.

One commenter noted that the definition of an adverse event for diagnostic products includes “failure in product performance.” The commenter stated that most customer reports of problems can either be traced to technical errors, or cannot be replicated with the product itself. The commenter further stated that unverified reports should not be the basis of adverse event reports to APHIS. The commenter stated that it is fairly straightforward to verify a problem with kit performance, and it seems appropriate that this be part of the determination that an adverse event has occurred.

The commenter is correct that for diagnostic kits a “failure in product performance” refers to a verified failure of the product itself, and would not include reports associated with equipment failure or technical errors. We will clarify this in guidance documents.

In the proposed rule, we estimated that each report would require 0.33 hours to generate and submit. One commenter stated that this estimate is too low. The commenter stated that any formal communication with a regulatory agency requires fact-checking and review, which add to the time required to generate the report. The commenter stated that they believe that a minimum of two full-time equivalent hours would be required for a simple report, with 4 to 6 hours being a likely average for all reports.

APHIS recognizes the variability in the time that it will take to gather, review, assess, and report adverse event cases to the agency. For example, the type of product (vaccine, diagnostic test kits, etc.) can have a significant influence in the respective time required to process a case. The reporting time would also vary depending on whether a licensee/permittee submits cases individually or batches multiple ones in a single submission. Therefore, considering the variability of processing adverse event reports for licensees/permittees, we would agree that a more accurate estimate of burden would be a range of 1 to 3 hours.

Definitions

One commenter stated that the proposed definition of adverse event should align with the definition in VICH GL24.

VICH GL24, which refers to all veterinary medicinal products (VMP), defines an adverse event as “any observation in animals, whether or not considered to be product-related, that is unfavorable and unintended and that occurs after any use of VMP (off-label and on-label uses). Included are events related to a suspected lack of expected efficacy according to approved labeling or noxious reactions in humans after being exposed to VMP(s).”

We proposed to define an adverse event as any observation in animals, whether or not the cause of the event is known, that is unfavorable and unintended, and that occurs after any use (as indicated on the label or any off-label use) of a biological product, including events related to a suspected lack of expected efficacy. For products intended to diagnose disease, adverse events refer to a failure in product performance that hinders an expected discovery of the correct diagnosis. APHIS believes that the two definitions are generally consistent and that the APHIS definition is appropriate for the regulation of veterinary biological products as compared to the regulation of all other veterinary medicinal products.

One commenter stated that the definition of adverse event report in VICH GL24 requires a “direct communication” while the proposed APHIS definition referred to “any communication.” The commenter stated APHIS should use the words “direct communication” because this language would trigger reporting based upon reliable information; and specifically would not trigger reporting simply because the licensee became aware of, for example, an unsubstantiated blog post or anti‐product activity on the internet.

APHIS agrees with the commenter. We have amended the definition of adverse event report to read “direct communication” instead of “any communication”.

One commenter noted that an adverse event report is defined as a communication received by a firm regarding an adverse event and which includes several pieces of information, including an “identifiable animal.” The commenter stated that test kits for diseases of livestock and poultry are most often used in laboratories, not at the location of the animals. The commenter further stated that laboratories would only rarely have access to individual animal identification devices in the normal course of their work. The commenter stated that if the intent of the rule is that all information listed must be available before a report to APHIS is required, that could greatly limit the number of reports. The commenter asked for clarification of the intent of the rule in this regard.

APHIS agrees that this could be clearer. In cases where specific information regarding an animal identity is not readily available, we consider the species for which the product was used to be the minimum information for an “identifiable animal.”

Frequency of Reporting

One commenter noted that the terms serious adverse event and unexpected adverse event, which appear in VICH GL24, were not defined in the proposed rule. The commenter stated that those terms should not be considered factors that determine frequency of reporting.

APHIS intends to define these terms in guidance documents that will be made available for review and comment by the industry and public before they are finalized. APHIS will work with the industry to develop guidance on these topics as the need arises.

One commenter asked for clarification that APHIS is seeking spontaneous reports of adverse events, and not the results that could occur in clinical trials or other studies that would already be reported to APHIS in a study report, or adverse events that may be reported in the literature.

The commenter is correct. Adverse event reports should address events that occur in field use of the product, not the results of clinical trials.

One commenter stated that, in § 116.9(b)(1), “immediate” should be interpreted to mean “within 3 business days” to be consistent with Veterinary Services Memorandum 800.57 “Market Suspensions.” The commenter stated that this would allow time for preliminary investigation. The commenter also stated that APHIS should replace the term “immediate” with “3 business days” in this section, as well as in § 116.5(b).

APHIS agrees that it is practical to interpret “immediately” as “within 3 business days” and will clarify this in guidance documents, which will be needed to establish a consistent application to the interpretation of a serious event. The requirement in § 116.9(b)(1) is consistent with the established requirement in § 116.5(b), so we are making no changes to either paragraph.

One commenter recommended that APHIS eliminate the 15 business day reporting requirement and any use of the concepts of “product‐related”, “serious”, and “expected” for case management timelines. The commenter stated that even if these are eliminated, APHIS would still receive those adverse event reports that impact the purity, potency, safety, or efficacy of the product on a 3 business day basis, and its ability to react very quickly to the most urgent situations would not be compromised. The commenter suggested that all other reports be submitted on the 90 calendar day requirement, which would provide sufficient time for a thorough investigation. A second commenter stated that a 90 day reporting period is too brief a period of time to submit reports; many of which will have nothing to report. The commenter suggested changes in the length of the reporting period over time

APHIS agrees with the first commenter that serious and unexpected adverse events will be reported immediately within 3 business days and as such the requirement of 15 business days is not necessary. We have amended § 116.9(b)(2) to remove the 15 day reporting requirement. Adverse event reports will continue to be received immediately or within 90 calendar days. We have also amended § 116.9(b) to require that adverse event reports determined to be product‐related, serious, and unexpected will be reported immediately and that other reports will be received within 90 days. We will also clarify that “immediately” means “within 3 business days” in guidance documents. We do not agree with the second commenter regarding the need for the 90 day reporting period, with changes in the length of the reporting period changing over time. Since we have removed the 15 day reporting period, the 90 day period will need to remain as a standard time. However, as pharmacovigilance data is accumulated APHIS will consider exemptions and will clarify in future guidance documents.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

Executive Orders 12866 and 13771 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov website (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

We are amending the Virus-Serum-Toxin Act regulations concerning records and reports. This change would require veterinary biologics licensees and permittees to record and submit reports concerning adverse events associated with the use of biological products they produce or distribute. The type of information that must be included in the adverse event reports submitted to APHIS would be provided in separate guidance documents.

We are taking this action in order to limit the harm to animals due to adverse events related to a product's purity, safety, potency, efficacy, preparation, testing, or distribution. Current regulations may hinder APHIS from taking expeditious action in cases where veterinary biologics are unsatisfactory.

For animal owners, the monetary benefits of the proposal are difficult to estimate because they would depend on unknowable factors—the significance or gravity of the harm that would be avoided with the rule in effect, and the number and value of animals thereby protected. Manufacturer costs to comply with the proposed rule are expected be minimal; most establishments that would be affected already maintain recordkeeping systems for adverse event reports that capture most if not all of the information that would be required. Most of the establishments that would be affected by the proposed rule are small entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies where they are necessary to address local disease conditions or eradication programs. However, where safety, efficacy, purity, and potency of biological products are concerned, it is the Agency's intent to occupy the field. This includes, but is not limited to, the regulation of labeling. Under the Act, Congress clearly intended that there be national uniformity in the regulation of these products. There are no administrative proceedings which must be exhausted prior to a judicial challenge to the regulations under this rule.

Executive Order 13175

This rule does not significantly or uniquely affect the communities of Indian Tribal governments. The rule does not impose any mandate on Tribal governments or impose any duties on these entities. Thus, no further action is required under Executive Order 13175.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0209, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

Lists of Subjects 9 CFR Part 101

Animal biologics.

9 CFR Part 116

Animal biologics, Reporting and recordkeeping requirements.

Accordingly, we are amending 9 CFR parts 101 and 116 as follows:

PART 101—DEFINITIONS 1. The authority citation for part 101 continues to read as follows: Authority:

21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.

2. Section 101.2 is amended by adding definitions for Adverse event and Adverse event report in alphabetical order to read as follows:
§ 101.2 Administrative terminology.

Adverse event. Any observation in animals, whether or not the cause of the event is known, that is unfavorable and unintended, and that occurs after any use (as indicated on the label or any off-label use) of a biological product, including events related to a suspected lack of expected efficacy. For products intended to diagnose disease, adverse events refer to a failure in product performance that hinders an expected discovery of the correct diagnosis.

Adverse event report. Direct communication concerning the occurrence of an adverse event from an identifiable first-hand reporter which includes the following information:

(1) An identifiable reporter;

(2) An identifiable animal;

(3) An identifiable biologic product; and

(4) One or more adverse events.

PART 116—RECORDS AND REPORTS 3. The authority citation for part 116 continues to read as follows: Authority:

21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.

4. In § 116.1, paragraph (a)(3) is revised to read as follows:
§ 116.1 Applicability and general considerations.

(a) * * *

(3) Records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer, as the case may be, before any portion of a serial of any product may be marketed in the United States or exported.

5. Section 116.8 is revised to read as follows:
§ 116.8 Completion and retention of records.

All records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer before any portion of a serial of any product may be marketed in the United States or exported. All records must be retained at the licensed or foreign establishment or permittee's place of business for a period of 2 years after the expiration date of a product or longer as may be required by the Administrator.

(Approved by the Office of Management and Budget under control number 0579-0013)
6. Section 116.9 is added to read as follows:
§ 116.9 Recording and reporting adverse events.

(a) Licensees and permittees must maintain a detailed record for every adverse event report the licensee or permittee receives for any biological product it produces or distributes. These records shall be maintained for a period of 3 years after the date the adverse event report is received. The adverse event report form and guidance on how to complete it, including guidance specific to the various information blocks on the form, is available on the APHIS website at https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/veterinary-biologics or by writing to APHIS Center for Veterinary Biologics, 1920 Dayton Avenue, P.O. Box 844, Ames, Iowa 50010.

(b) A report of all adverse events reports received by a licensee or permittee must be compiled and submitted to the Animal and Plant Health Inspection Service. The frequency of report submission is as follows:

(1) Immediate notification is required if at any time there are indications that raise questions regarding the purity, safety, potency, or efficacy of a product, or if it appears that there may be a problem regarding the preparation, testing, or distribution of a product.

(2) Adverse event reports determined by the licensee or permittee to be product-related, serious, and unexpected must also be reported immediately.

(3) All other adverse event reports must be reported within 90 calendar days of the date the report was first received.

(Approved by the Office of Management and Budget under control number 0579-0209)
Done in Washington, DC, this 11th day of May 2018. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-10540 Filed 5-16-18; 8:45 am] BILLING CODE 3410-34-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0443; Product Identifier 2018-NE-14-AD; Amendment 39-19286; AD 2018-10-11] RIN 2120-AA64 Airworthiness Directives; CFM International S.A. Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2018-09-10 for all CFM International S.A. (CFM) Model CFM56-7B engines. AD 2018-09-10 required initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. This AD requires the same initial and repetitive inspections but revises the compliance time for the initial inspections of certain higher-risk fan blades. This AD was prompted by a recent engine failure due to a fractured fan blade that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective June 1, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 1, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of May 14, 2018 (83 FR 19176, May 2, 2018).

We must receive any comments on this AD by July 2, 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 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For service information identified in this final rule, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0443.

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-2018-0443; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued AD 2018-09-10, Amendment 39-19267 (83 FR 19176, May 2, 2018), (“AD 2018-09-10”), for all CFM model CFM56-7B engines. AD 2018-09-10 required initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. AD 2018-09-10 resulted from a recent event involving an engine failure due to a fractured fan blade leading to the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization and prompting an emergency descent. One passenger fatality occurred as a result. We issued AD 2018-09-10 to prevent failure of the fan blade due to cracking, which could lead to an engine in-flight shutdown (IFSD), uncontained release of debris, damage to the airplane, and possible airplane decompression.

Actions Since AD 2018-09-10 Was Issued

Since we issued AD 2018-09-10, an investigation of this event has determined new methods for identifying applicable parts as well as the need to reduce the compliance time for certain fan blades. Therefore, this AD requires inspection of higher risk fan blades, identified using one of the methods in CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, within 30 days from the effective date of the AD. The remaining fan blades must be inspected within 90 days from the effective date of the AD or prior to accumulating 20,000 flight cycles. We are issuing this AD to address the unsafe condition on these products.

Related Service Information Under 1 CFR Part 51

We reviewed CFM SB CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, and Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual (ESM), Revision 57, dated January 15, 2018. CFM SB CFM56-7B S/B 72-1033, Revision 01, describes procedures for performing an ultrasonic inspection (USI) of the affected fan blades. Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B ESM, describes procedures for performing an eddy current inspection (ECI) of the affected fan blades. 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.

Other Related Service Information

We also reviewed CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017, and Revision 1, dated June 13, 2017; CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; and CFM SB CFM56-7B S/B 72-1033, dated April 20, 2018, and General Electric Field Support Technology (FST) procedure 2370, dated December 9, 2016. These SBs and the FST provide information on performing the USI.

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 initial and repetitive ultrasonic or eddy current inspection of certain fan blades and, if they fail the inspection, their replacement with parts eligible for installation.

FAA's Justification and Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because certain fan blades must be inspected, and, if needed, replaced before further flight. Failure to inspect and replace these parts within the required compliance times could lead to failure of the fan blades, engine IFSD, uncontained release of debris, damage to the airplane, and possible airplane decompression. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons 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 provide you with notice and an opportunity to provide your comments before it becomes effective. 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-2018-0443 and product identifier 2018-NE-14-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

We estimate that this AD affects 3,716 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspect engine fan blade 2 work-hours × $85 per hour = $170 $0 $170 $631,720

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace fan blade 1 work-hour × $85 per hour = $85 $8,500 $8,585
    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

    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 part 39 of the Federal Aviation Regulations (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) 2018-09-10, Amendment 39-19267 (83 FR 19176, May 2, 2018) and adding the following new AD: 2018-10-11 CFM International S.A.: Amendment 39-19286; Docket No. FAA-2018-0443; Product Identifier 2018-NE-14-AD. (a) Effective Date

    This AD is effective June 1, 2018.

    (b) Affected ADs

    This AD replaces AD 2018-09-10, Amendment 39-19267 (83 FR 19176, May 2, 2018).

    (c) Applicability

    This AD applies to CFM International S.A. (CFM) CFM56-7B20, CFM56-7B22, CFM56-7B22/B1, CFM56-7B24, CFM56-7B24/B1, CFM56-7B26, CFM56-7B26/B2, CFM56-7B27, CFM56-7B27A, CFM56-7B26/B1, CFM56-7B27/B1, CFM56-7B27/B3, CFM56-7B20/2, CFM56-7B22/2, CFM56-7B24/2, CFM56-7B26/2, CFM56-7B27/2, CFM56-7B20/3, CFM56-7B22/3, CFM56-7B22/3B1, CFM56-7B24/3, CFM56-7B24/3B1, CFM56-7B26/3, CFM56-7B26/3B1, CFM56-7B26/3B2, CFM56-7B27/3, CFM56-7B27/3B1, CFM56-7B27/3B3, CFM56-7B27A/3, CFM56-7B26/3F, CFM56-7B26/3B2F, CFM56-7B27/3F, CFM56-7B27/3B1F, CFM56-7B20E, CFM56-7B22E, CFM56-7B22E/B1, CFM56-7B24E, CFM56-7B24E/B1, CFM56-7B26E, CFM56-7B26E/B1, CFM56-7B26E/B2, CFM56-7B27AE, CFM56-7B27E, CFM56-7B27E/B1, CFM56-7B27E/B3, CFM56-7B26E/F, CFM56-7B26E/B2F, CFM56-7B27E/F, and CFM56-7B27E/B1F engine models.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.

    (e) Unsafe Condition

    This AD was prompted by a recent engine failure due to a fan blade fracture leading to the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. One passenger fatality occurred as a result. We are issuing this AD to prevent failure of the fan blade. The unsafe condition, if not addressed, could result in failure of the fan blade, the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent.

    (f) Compliance

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

    (g) Required Actions

    (1) Perform an ultrasonic inspection (USI) or eddy current inspection (ECI) of the concave and convex sides of the fan blade dovetail as follows:

    (i) Within 30 days after the effective date of this AD, perform an initial inspection of the fan blades identified using the criteria in Planning Information, either paragraph 1.C.2.(a), 1.C.2.(b), or 1.C.2.(c), of CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018.

    (ii) For all fan blades not inspected in accordance with paragraph (g)(1)(i) of this AD, perform an initial inspection prior to accumulating 20,000 flight cycles on the fan blade or within 90 days from the effective date of this AD, whichever occurs later.

    (iii) Thereafter, repeat this inspection no later than 3,000 cycles since the last inspection.

    (iv) Use the Accomplishment Instructions, paragraphs 3.A.(3)(a) through (i), of CFM SB CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, to perform a USI or use the instructions in Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018, to perform an ECI.

    (2) If any unserviceable indication, as specified in the applicable service information in paragraph (g)(1)(iv) of this AD, is found during the inspections required by paragraph (g) of this AD, replace the fan blade before further flight with a part eligible for installation.

    (h) Installation Prohibition

    Do not install any replacement fan blade unless it meets one of the following criteria:

    (1) The replacement fan blade has fewer than 20,000 cycles since new, or;

    (2) The replacement fan blade has been inspected in accordance with paragraph (g) of this AD.

    (i) Definition

    For the purpose of this AD, a “replacement fan blade” is a fan blade that is being installed into an engine from which it was not previously removed. Removing and reinstalling a fan blade for the purpose of relubrication is not subject to the Installation Prohibition of this AD.

    (j) Credit for Previous Actions

    (1) You may take credit for the USI required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017; or Revision 1, dated June 13, 2017; or CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; CFM SB CFM56-7B S/B 72-1033, dated April 20, 2018; or General Electric Field Support Technology procedure 2370, dated December 9, 2016.

    (2) You may take credit for an ECI using the instructions in Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual, earlier than Revision 57, dated January 15, 2018.

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, ECO 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 (l) of this AD. You may email your request to: [email protected]

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

    (3) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(3)(i) and (k)(3)(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. 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.

    (l) Related Information

    For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected]

    (m) 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.

    (3) The following service information was approved for IBR on June 1, 2018.

    (i) CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018.

    (ii) Reserved.

    (4) The following service information was approved for IBR on May 14, 2018 (83 FR 19176, May 2, 2018).

    (i) Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018.

    (ii) Reserved.

    (5) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected]

    (6) You may view this service information at the FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.

    (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 Burlington, Massachusetts, on May 15, 2018. Robert J. Ganley, Manager, Engine & Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-10657 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1089; Airspace Docket No. 17-AEA-21] RIN 2120-AA66 Amendment of Class E Airspace; Hamilton, NY AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet or more above the surface at Hamilton Municipal Airport (formerly Elisha Payne Airport), Hamilton, NY, to accommodate airspace reconfiguration due to the decommissioning of the Georgetown VHF omni-directional radio range tactical air navigation aid (VORTAC), and cancellation of the VORTAC approach. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport, and updates the airport name.

    DATES:

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

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    History

    The FAA published a notice of proposed rulemaking in the Federal Register for Docket No. FAA-2017-1089 (83 FR 5748, February 9, 2018) proposing to amend Class E airspace extending upward from 700 feet or more above the surface at Hamilton Municipal Airport, Hamilton, NY.

    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 part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document 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 Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet or more above the surface within an 11.2-mile radius (increased from a 6.5-mile radius) of Hamilton Municipal Airport, Hamilton, NY, due to the decommissioning of the Georgetown VORTAC, and cancellation of the VOR approach. The changes enhance the safety and management of IFR operations at the airport.

    The geographic coordinates of the airport also are adjusted to coincide with the FAA's aeronautical database, and the airport name is updated to Hamilton Municipal Airport from Elisha Payne Airport.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. 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 Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, 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. AEA NY E5 Hamilton, NY [Amended] Hamilton Municipal Airport, NY (Lat. 42°50′36″ N, long. 75°33′40″ W)

    That airspace extending upward from 700 feet above the surface within an 11.2-mile radius of Hamilton Municipal Airport.

    Issued in College Park, Georgia, on May 8, 2018. Debra L. Hogan, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-10387 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0994; Airspace Docket No. 17-ASO-21] RIN 2120-AA66 Amendment of Class D Airspace and Class E Airspace; Greenwood, MS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class D airspace, and Class E surface area airspace at Greenwood-Leflore Airport, Greenwood, MS, by making an editorial change to the legal descriptions replacing “Airport-Facility Directory” with the term “Chart Supplement”. This action also removes the part-time Notice to Airmen (NOTAM) language from Class E airspace designated as an extension to Class D airspace. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport in the Class designations noted in this proposal to coincide with the FAA's aeronautical database. Also, this action corrects the geographic coordinates published in the proposal incorrectly.

    DATES:

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

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave, College Park, GA 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 5966, February 12, 2018) for Docket No. FAA-2017-0994 to amend Class D airspace, Class E surface airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet or more above the surface at Greenwood-Leflore Airport, Greenwood, MS.

    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 D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2016. 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 amends Class D airspace, and Class E surface area airspace at Greenwood-Leflore Airport, Greenwood, MS, by making an editorial change to the legal descriptions replacing “Airport-Facility Directory” with the term “Chart Supplement”.

    Also, this action removes the part-time NOTAM language from the Class E airspace designated as an extension to a Class D surface area.

    Additionally, the geographic coordinates of the airport, in the above airspace areas, and the Class E airspace area extending upward from 700 feet above the surface, are adjusted to coincide with the FAA's aeronautical database.

    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. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. 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 Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ASO MS D Greenwood, MS [Amended] Greenwood-Leflore Airport, MS (Lat. 33°29′36″ N, long. 90°05′12″ W)

    That airspace extending upward from the surface to and including 2,700 feet MSL within a 4.4-mile radius of Greenwood-Leflore Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Surface Area Airspace. ASO MS E2 Greenwood, MS [Amended] Greenwood-Leflore Airport, MS (Lat. 33°29′36″ N, long. 90°05′12″ W)

    Within a 4.4-mile radius of Greenwood-Leflore Airport. 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 Surface Area. ASO MS E4 Greenwood, MS [Amended] Greenwood-Leflore Airport, MS (Lat. 33°29′36″ N, long. 90°05′12″ W) Sidon VORTAC (Lat. 33°27′50″ N, long. 90°16′38″ W)

    That airspace extending upward from the surface within 1.4 miles each side of the Sidon VORTAC 079° radial, extending from the 4.4-miles radius of Greenwood-Leflore Airport to 4 miles east of the VORTAC.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO MS E5 Greenwood, MS [Amended] Greenwood-Leflore Airport, MS (Lat. 33°29′36″ N, long. 90°05′12″ W) Sidon VORTAC (Lat. 33°27′50″ N, long. 90°16′38″ W)

    That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of That That airspace That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Greenwood-Leflore Airport and within 1.2 miles each side of the Sidon VORTAC 079° radial, extending from the 6.9-mile radius to 2 miles each side of the VORTAC.

    Issued in College Park, Georgia, on May 8, 2018. Debra L. Hogan, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-10389 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 744 [Docket No. 180214174-8174-01] RIN 0694-AH54 Revisions to the Unverified List (UVL) AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) by adding thirty-three (33) persons to the Unverified List (“UVL”) and adding an additional address for one (1) person currently listed on the UVL. The thirty-three persons are being added to the UVL on the basis that BIS could not verify their bona fides because an end-use check could not be completed satisfactorily for reasons outside the U.S. Government's control. A new address is added for one person as BIS has determined that this person is receiving exports from the United States at an additional address.

    DATES:

    This rule is effective May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Kurland, Director, Office of Enforcement Analysis, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-4255 or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The Unverified List, found in Supplement No. 6 to Part 744 to the EAR, contains the names and addresses of foreign persons who are or have been parties to a transaction, as that term is described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR, and whose bona fides (i.e., legitimacy and reliability relating to the end use and end user of items subject to the EAR) BIS has been unable to verify through an end-use check. BIS may add persons to the UVL when BIS or federal officials acting on BIS's behalf have been unable to verify a foreign person's bona fides because an end-use check, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for such purposes for reasons outside the U.S. Government's control.

    There are occasions where, for a number of reasons, end-use checks cannot be completed. These include reasons unrelated to the cooperation of the foreign party subject to the end-use check. For example, BIS sometimes initiates end-use checks and cannot find a foreign party at the address indicated on export documents, and cannot locate the party by telephone or email. Additionally, BIS sometimes is unable to conduct end-use checks when host government agencies do not respond to requests to conduct end-use checks, are prevented from scheduling such checks by a party to the transaction other than the foreign party that is the proposed subject of the end-use check, or refuse to schedule them in a timely manner. Under these circumstances, although BIS has an interest in informing the public of its inability to verify the foreign party's bona fides, there may not be sufficient information to add the foreign person at issue to the Entity List under § 744.11 of the EAR (Criteria for revising the Entity List). In such circumstances, BIS may add the foreign person to the UVL.

    Furthermore, BIS sometimes conducts end-use checks but cannot verify the bona fides of a foreign party. For example, BIS may be unable to verify bona fides if during the conduct of an end-use check a recipient of items subject to the EAR is unable to produce those items for visual inspection or provide sufficient documentation or other evidence to confirm the disposition of those items. The inability of foreign persons subject to end-use checks to demonstrate their bona fides raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR and indicates a risk that such items may be diverted to prohibited end uses and/or end users. However, BIS may not have sufficient information to establish that such persons are involved in activities described in parts 744 or 746 of the EAR, preventing the placement of the persons on the Entity List. In such circumstances, the foreign persons may be added to the Unverified List.

    As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and keep a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement.

    Requests for removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL listings will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of its bona fides.

    Changes to the EAR Supplement No. 6 to Part 744 (“the Unverified List” or “UVL”)

    This rule adds thirty-three (33) persons to the UVL by amending Supplement No. 6 to Part 744 of the EAR to include their names and addresses. BIS adds these persons in accordance with the criteria for revising the UVL set forth in § 744.15(c) of the EAR. The new entries consist of eleven persons located in China, twelve in Russia, five in the United Arab Emirates, two in Canada, and one person located in each of the following countries: Estonia, Finland, and Pakistan. Each listing is grouped within the UVL by country with each party's name(s) listed in alphabetical order under the country; each entry includes available alias(es) and address(es), as well as the Federal Register citation and the date the person was added to the UVL. The UVL is included in the Consolidated Screening List, available at www.export.gov.

    This rule also adds one additional address for one person currently listed on the UVL, Ling Ao Electronic Technology Co. Ltd, a.k.a. Voyage Technology (HK) Co., Ltd., a.k.a. Xuan Qi Technology Co. Ltd., as BIS has determined that this person is receiving exports from the United States at an additional address.

    Savings Clause

    Shipments (1) removed from license exception eligibility or that are now subject to requirements in § 744.15 of the EAR as a result of this regulatory action; (2) eligible for export, reexport, or transfer (in-country) without a license before this regulatory action; and (3) on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on May 17, 2018, pursuant to actual orders, may proceed to that UVL listed person under the previous license exception eligibility or without a license so long as the items have been exported from the United States, reexported or transferred (in-country) before June 18, 2018. Any such items not actually exported, reexported or transferred (in-country) before midnight on June 18, 2018 are subject to the requirements in § 744.15 of the EAR in accordance with this regulation.

    Export Administration Act

    Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017) has continued the EAR in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866.

    2. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable to this rule, which is adding 33 persons to the UVL and adding a new address for one (1) other person currently listed on the UVL, because this regulation involves a military or foreign affairs function of the United States under 5 U.S.C. 553(a)(1). BIS implements this rule to protect U.S. national security or foreign policy interests by requiring a license or, where no license is required, a UVL statement for items being exported, reexported, or transferred (in country) involving a party or parties to the transaction who are listed on the UVL. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the UVL by this action and the entity now receiving exports from the United States at an additional address would continue to be able to receive items without additional oversight by BIS and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the UVL or amend their current entry on the UVL, and create an incentive for these persons to accelerate receiving items subject to the EAR in furtherance of activities contrary to the national security or foreign policy interests of the United States, and/or take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing once a final rule was published.

    Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    3. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under the following control numbers: 0694-0088, 0694-0122, 0694-0134, and 0694-0137.

    This rule slightly increases public burden in a collection of information approved by OMB under control number 0694-0088, which authorizes, among other things, export license applications. The removal of license exceptions for listed persons on the Unverified List will result in increased license applications being submitted to BIS by exporters. Total burden hours associated with the Paperwork Reduction Act and OMB control number 0694-0088 are expected to increase minimally, as the suspension of license exceptions will only affect transactions involving persons listed on the Unverified List and not all export transactions. Because license exceptions are restricted from use, this rule decreases public burden in a collection of information approved by OMB under control number 0694-0137 minimally, as this will only affect specific individual listed persons. The increased burden under 0694-0088 is reciprocal to the decrease of burden under 0694-0137, and results in no change of burden to the public. This rule also increases public burden in a collection of information under OMB control number 0694-0122, as a result of the exchange of UVL statements between private parties, and under OMB control number 0694-0134, as a result of appeals from persons listed on the UVL for removal of their listing. The total increase in burden hours associated with both of these collections is expected to be minimal, as they involve a limited number of persons listed on the UVL.

    4. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

    List of Subjects in 15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

    Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

    PART 744—[AMENDED] 1. The authority citation for part 744 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017); Notice of September 18, 2017, 82 FR 43825 (September 19, 2017); Notice of November 6, 2017, 82 FR 51971 (November 8, 2017); Notice of January 17, 2018, 83 FR 2731 (January 18, 2018).

    2. Supplement No. 6 to Part 744 is amended by: a. Adding two entries, in alphabetical order, for “Canada”; b. Adding eleven entries, in alphabetical order, under “China”; c. Adding one entry, in alphabetical order, under “Estonia”; d. Adding one entry, in alphabetical order, for “Finland”; e. Revising the entry for “Ling Ao Electronic Technology Co. Ltd., a.k.a. Voyage Technology (HK) Co., Ltd., a.k.a. Xuan Qi Technology Co. Ltd.” under “Hong Kong”; f. Adding one entry, in alphabetical order, for “Pakistan”; g. Adding twelve entries, in alphabetical order, under “Russia”; and h. Adding five entries, in alphabetical order, under “United Arab Emirates”.

    The additions and revisions read as follows:

    Supplement No. 6 to Part 744—Unverified List Country Listed person and address Federal Register citation and date of publication *         *         *         *         *         *         * CANADA Laval Electronics, 3073 Rue Edmond-Rostand, Laval, QC H7P, Canada 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Services GP Tek, a.k.a. Nouvelle Option, 1305 Rue Pise, Brossard, QC J4W 2P7, Canada; and 203-760 Rue Galt, Montreal, QC H4G 2P7, Canada; and 6271 Rue Beaulieu, Montreal, QC, H4E 3E9, Canada 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * CHINA Changhe Aircraft Industries Group, No. 539, Chaoyang Road, Jingdezhen City, Jiangxi Province, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Dandong Center for Food Control, No. 31-1 Zhongyang Avenue, Dandong, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Institute of Geology, Chinese Academy of Geological Sciences, No. 26, Baiwanzhuang Street, Beijing, 100037, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Jiangxi Hongdu Aviation Ind. Group, The Nanchang National High & New Technology Development Zone, Jiangxi Province, Yaohu Nanchang, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Jiujiang Jinxin Nonferrous Metals Co, Ltd., Xunyang Chem. Bldg, Materials Factory, Xunyang District, Jiujiang City, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Liupanshui Normal University, 19 Minghu Road, Zhongshan District, Liupanshui, Guizhou, 553004, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Nanchang University, No. 999 Xuefu Avenue, Honggutan New District, Nanchang, 330031, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Shanxi Hemu Industrial Co., Ltd., Yongchang Rd, Xianyang HiTech Industries Development Zone, Shanxi, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Sino Superconductor Technology Company, a.k.a. Zongyi Superconductor Technologies Co. Ltd., a.k.a. SinoHTS, 505 Nantian Bldg, 10, Xinxi Rd, Shangdi, Haidian, Beijing, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Xinjiang East Hope New Energy Company Ltd, Xinjiang East Eco. Development Zone, XinJiang, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Yantai Salvage Bureau, No. 100 Zhifudao East Road, Zhifu District, Yantai, Shandong, 264012, China 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * ESTONIA Simms Marine Group OU, Sergey Ivanov, Paavli str. 5/2, Tallinn, Estonia, 10412 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” FINLAND Net Logistics JVM OY, a.k.a. Net Logistic JVM OY, Eskolantie 1, Helsinki, Finland 00720; and Merituulentie 486, Port Mussalo, Kotka, Finland 48310 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * HONG KONG  *         *         *         *         *         * *         *         *         *         *         *         * Ling Ao Electronic Technology Co. Ltd, a.k.a. Voyage Technology (HK) Co., Ltd. a.k.a. Xuan Qi Technology Co., Ltd., Room 17, 7/F, Metro Centre Phase 1, No. 32 Lam Hing St., Kowloon Bay, Kwun Tong, Hong Kong; and 15B, 15/F, Cheuk Nang Plaza, 250 Hennessy Road, Wanchai, Hong Kong; and Flat C, 11/F, Block No. 2, Camelpaint Bldg. 62 Hoi Yuen Street, Kwun Tong, Kowloon, Hong Kong; and Room C1-D, 6/F, Wing Hing Industrial Building 14 Hing Yip Street, Kwun Tong, Kowloon, Hong Kong; and Flat/Rm. A30, 9/F Silvercorp International Tower, 707-713 Nathan Road, Mongkok, Kowloon, Hong Kong; and Room, 912A, 9/F. Witty Commercial Building, 1A-1L Tung Choi Street, Mongkok, Kowloon, Hong Kong; and Unit A, 7/F, King Yip Factory Bldg., 59 King Yip Street, Kwun Tong, Kowloon, Hong Kong; and Unit D, 16/F, One Capital Place, 18 Luard Road, Wanchi, Hong Kong 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * PAKISTAN Andleeb Associates, Sultan Complex, Abid Majeed Road, Rawalpindi, Pakistan 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * RUSSIA Alliance EG Ltd., Leninsky Prospect 139, Office 310, St. Petersburg 198216, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Eltech Ltd., 3A, pl. Konstitutsii, Saint Petersburg 196247, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” EFO Ltd., Politechnicheskaya Street 21, Saint Petersburg 192019, Russia and 15A Novolitovskaya Str., Office 441, Saint Petersburg, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Intercom Ltd., Kalinina Street 13, Saint Petersburg 198099, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * MT Systems, Kalinina Street 13, Saint Petersburg 198099, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Radiofizika OAO, D.10. Ul. Geroev Panfilovtsev, Moscow 125363, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Romona Inc., Prospekt Mira 426, Yuzhno-Sakhalinsk 693004, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” FSUE Rosmorport Far Eastern Basin Branch, Nizhneportovaya Street 3, Primorskiy Territory, Vladivostok 690003, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Sakhalin Energy Investment Company Ltd., Dzerzhinskogo Street 35, Yuzhno-Sakhalinsk 693020, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * SIC Dipaul, Bolshaya Monetnaya Street 16, Saint Petersburg 197101, Russia and 5B, Rentgena ul., 197101, Saint 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Tavrida Microelectronics, Zelenaya Street 1, Dolgoprudnyy, Moscow 141700, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” VIP Technology Ltd., Bechtereva Street 3/2, Office 40, Saint Petersburg 192019, Russia 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * UNITED ARAB EMIRATES  *         *         *         *         *         * *         *         *         *         *         *         * Alsaroud General Trading, a.k.a. Alsaroud Ground Trading Company, a.k.a. Alsarroud General Trading LLC, Avenue 125, Street 2, Building 30/1, Industrial Area 17, Sharjah, UAE; and P.O. Box 35939, Sharjah, UAE; and 204 Shaikha Hind Bint Saqr Alqasemi Building, Near Etisalat Building, Almareja Street, Al Jubail, Sharjah, UAE 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * Chepstow FZE, Office No. 12, Y Block, P.O. Box 121227, Sharjah Airport International Free Zone, Sharjah, UAE 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * GenX Middle East FZE, a.k.a. GenX Systems LLC, #510-511 Le Solarium Building, Dubai Silicon Oasis, Dubai, UAE; and P.O. Box 121225, Office M07, Al Zahra, Khaleed Bin Al Waleed Road, Bur Dubai, Dubai, UAE 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” Roudah Al Hayat General Trading FZE, a.k.a. Rudha Al Hayat General Trading, a.k.a. Rouda Al Hayat General Trading, a.k.a. JSB Logistics, 406 Al Rhakaimi Building, Deira, Dubai, UAE; and #3204 Aspect Tower D, Sheikh Zayed Road, Dubai, UAE; and #1506 Aspect Tower D, Sheikh Zayed Road, Dubai, UAE and 901 Regal Tower, Business Bay, Dubai, UAE and 402 Al Fahad Building, Damascus Street, Dubai, UAE 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         * TEM International FZC, Dubai Silicon Oasis Headquarters Building, 4th Floor C&D Wings, P.O. Box 341041, Dubai, UAE 83 FR “[INSERT FEDERAL REGISTER PAGE NUMBER], May 17, 2018.” *         *         *         *         *         *         *
    Dated: May 12, 2018. Richard E. Ashooh, Assistant Secretary for Export Administration.
    [FR Doc. 2018-10528 Filed 5-16-18; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 878 [Docket No. FDA-2017-N-4919] Medical Devices; Exemption From Premarket Notification: Class II Devices; Surgical Apparel AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is publishing this final order to exempt certain surgical apparel from premarket notification requirements, subject to conditions and limitations. FDA is limiting the exemption to single-use, disposable respiratory protective devices (RPD) used in a healthcare setting and worn by healthcare personnel during procedures to protect both the patient and the healthcare personnel from the transfer of microorganisms, body fluids, and particulate material. These devices, commonly referred to as N95 filtering facepiece respirators (FFRs) and surgical N95 respirators (herein collectively referred to as N95s) are currently regulated by FDA under product code MSH. This exemption will decrease regulatory burden on the medical device industry and will eliminate private costs and expenditures required to comply with certain Federal regulations. All other class II devices classified under FDA's surgical apparel classification regulation continue to be subject to premarket notification requirements. FDA is also amending the codified language for the surgical apparel devices classification regulation to reflect this final determination.

    DATES:

    This order is effective May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Aftin Ross, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave, Bldg. 66, Rm. 5402, Silver Spring, MD 20993, 301-796-5679, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Statutory Background

    Section 510(k) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360(k)) and the implementing regulations, 21 CFR part 807, subpart E, require persons who intend to market a new device to submit and obtain clearance of a premarket notification (510(k)) containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a legally marketed device that does not require premarket approval.

    The 21st Century Cures Act (Pub. L. 114-255) (Cures Act) was signed into law on December 13, 2016. Section 3054 of the Cures Act amended section 510(m) of the FD&C Act. As amended, section 510(m)(2) of the FD&C Act provides that, 1 calendar day after the date of publication of the final list under paragraph (1)(B), FDA may exempt a class II device from the requirement to submit a report under section 510(k) of the FD&C Act upon its own initiative or a petition of an interested person, if FDA determines that a report under section 510(k) is not necessary to assure the safety and effectiveness of the device. To do so, FDA must publish in the Federal Register notice of its intent to exempt the device, or of the petition, and provide a 60-calendar day period for public comment. Within 120 days after the issuance of the notice, FDA shall publish an order in the Federal Register that sets forth its final determination regarding the exemption of the device that was the subject of the notice.

    II. Factors FDA May Consider for Exemption

    There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the January 21, 1998, Federal Register notice (63 FR 3142) and subsequently in the guidance the Agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions From Premarket Notification; Guidance for Industry and CDRH Staff” (“Class II 510(k) Exemption Guidance”) (Ref. 1). Accordingly, FDA generally considers the following factors to determine whether a 510(k) is necessary for class II devices: (1) The device does not have a significant history of false or misleading claims or of risks associated with inherent characteristics of the device; (2) characteristics of the device necessary for its safe and effective performance are well established; (3) changes in the device that could affect safety and effectiveness will either: (a) Be readily detectable by users by visual examination or other means such as routine testing, before causing harm, or (b) not materially increase the risk of injury, incorrect diagnosis, or ineffective treatment; and (4) any changes to the device would not be likely to result in a change in the device's classification. FDA may also consider that, even when exempting devices, these devices would still be subject to the limitations on exemptions.

    III. Device Description

    FDA, upon its own initiative, is exempting N95 filtering facepiece respirators (FFRs) and surgical N95 respirators (herein collectively referred to as N95s) from 510(k), subject to the conditions and limitations described in this section. FDA considers N95s to be a subset of “surgical apparel” intended to be worn by healthcare personnel to protect both the patient and the healthcare personnel from transfer of microorganisms, body fluids, and particulate material. As a result, these devices fall under the generic name “surgical apparel” and are classified in § 878.4040(b)(1) (21 CFR 878.4040(b)(1)). In the Federal Register of June 24, 1988 (53 FR 23856), FDA issued a final rule classifying surgical apparel into class II (special controls). We are now exempting a subset of surgical apparel devices currently regulated under product code MSH from 510(k) review. FDA has assessed the need for 510(k) against the criteria laid out in the Class II 510(k) Exemption Guidance and determined that these devices no longer require a 510(k) to provide reasonable assurance of safety and effectiveness. However, this exemption is limited and FDA's determination only applies to those N95s under the conditions listed below.

    FDA has a Memorandum of Understanding (MOU) with the Centers for Disease Control and Prevention (CDC), acting through its National Institute for Occupational Safety and Health (NIOSH), regarding oversight of N95s (Ref. 2). This agreement outlines the structure through which both Agencies will regulate N95s exempt from 510(k). The MOU between NIOSH and FDA is now effective as part of this final order.

    Although FDA and CDC share a common public health mission, the Agencies have different statutory authorities and the distinct terminology could lead to confusion among stakeholders. In order to clearly identify the devices that are subject to this document, as well as the corresponding MOU, the following definitions are provided for the devices that are now exempt.

    The N95 FFR is a single-use disposable, half-mask respiratory protective device that covers the user's airway (nose and mouth) and offers protection from particulate materials at an N95 filtration efficiency level per 42 CFR 84.181. Such an N95 FFR used in a healthcare setting is a class II device, regulated by FDA under § 878.4040.

    The surgical N95 respirator is a single-use, disposable respiratory protective device used in a healthcare setting that is worn by HCP during procedures to protect both the patient and HCP from the transfer of microorganisms, body fluids, and particulate material at an N95 filtration efficiency level per 42 CFR 84.181. The surgical N95 respirator is also a class II device, regulated by FDA under § 878.4040.

    In the Federal Register of November 30, 2017 (82 FR 56763), FDA published a proposed order announcing its intent to exempt N95s from premarket notification [510(k)] requirements, subject to certain conditions and limitations, and provided opportunity for interested persons to submit comments by January 30, 2018. After reviewing the comments received (summarized in section IV), FDA is now providing its final determination for N95s by exempting this type of device from 510(k) requirements, subject to certain conditions and limitations as identified in this final order. FDA is also amending the codified language for the surgical apparel devices classification regulation to reflect this final determination. Persons with pending 510(k) submissions for devices that are now exempt from 510(k), subject to the conditions and limitations, should withdraw their submissions.

    IV. Comments on the Proposed Exemption and FDA's Response

    In response to the November 2017 proposed order announcing FDA's intent to exempt N95s from 510(k) requirements, FDA received submissions from four commenters—two from regulated industry, one from an industry association, and one from a consumer. Three commenters supported the implementation of the MOU with the CDC, acting through NIOSH, regarding oversight of N95s and exemption from 510(k) for this device type. FDA agrees with the three commenters that the exemption from 510(k) requirements will streamline the oversight of N95s without compromising the public health.

    One commenter requested that these devices still be subject to 510(k) requirements to ensure safety of people using the disposable respiratory protective devices. Further, the commenter indicated that FDA's proposal should not be finalized because the sterility of these devices can greatly affect those working in the health field and patients being treated, and if these devices are not properly inspected or regulated, diseases could spread more easily from person to person. The commenter noted that because these devices will be used by surgical staff, it is even more important that the devices be inspected because surgery can involve open wounds or open body cavities, making it easier to spread disease or bodily fluids.

    FDA notes in response to this commenter that N95s subject to this exemption from 510(k) are not provided sterile to the user. While FDA has exempted these devices from 510(k), the scientific evidence necessary to legally market N95s within this exemption has not changed. The majority of this testing has traditionally been reviewed by NIOSH. The conditions and limitations of exemption that FDA has identified in section V of this final order and § 878.4040(b)(1) will provide reasonable assurance of safety and effectiveness for N95s. Unless an N95 meets the mutually agreed upon threshold evaluation criteria and approval criteria and has NIOSH approval, the device would still be subject to 510(k) review. Accordingly, FDA did not modify the exemption or conditions and limitations of exemption proposed for N95s in response to this comment.

    V. Conditions and Limitations of Exemption

    As described in the MOU, the following conditions must be met for N95s to be 510(k) exempt: (1) application submitted to NIOSH is determined not to exceed the CDC's and FDA's mutually agreed upon threshold evaluation criteria and (2) such applicants must have met approval criteria and have NIOSH approval. N95s with applications that meet the mutually agreed upon threshold evaluation criteria and approval criteria and remain approved by NIOSH are exempt from FDA's 510(k) requirements. Unless an N95 meets the mutually agreed upon threshold evaluation criteria and approval criteria and has NIOSH approval, the device is subject to 510(k) review; this includes devices with applications pending NIOSH review, as well as devices with no submitted applications. The threshold evaluation criteria are codified into the conditions and limitations of exemption described in § 878.4040(b)(1).

    N95s are the only devices included within the scope of the MOU. As such, this exemption only applies to devices currently regulated by FDA under product code MSH. This exemption does not affect any other subset of surgical apparel classified under § 878.4040. In addition to being subject to the general limitations to the exemptions found in 21 CFR 878.9 and the conditions of exemption identified in this final order, these devices will also remain subject to current good manufacturing practices and other general controls under the FD&C Act. An exemption from the requirement of 510(k) does not mean that the device is exempt from any other statutory or regulatory requirements, unless such exemption is explicitly provided by order or regulation.

    This exemption will decrease regulatory burdens on the medical device industry and will eliminate private costs and expenditures required to comply with Federal regulations. Specifically, regulated industry will no longer have to invest time and resources in 510(k)s, including preparation of documents and data for submission to FDA, payment of user fees associated with 510(k) submissions, and responding to questions and requests for additional information from FDA during 510(k) review for devices in this exempted device type, subject to the conditions and limitations of the exemption.

    VI. Paperwork Reduction Act of 1995

    This order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart, E have been approved under OMB control number 0910-0120.

    VII. References

    The following references are on display in the Dockets Management Staff (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. FDA Guidance, “Procedures for Class II Device Exemptions from Premarket Notification, Guidance for Industry and CDRH Staff,” February 19, 1998, available at https://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM080199.pdf.

    2. “Memorandum of Understanding Between the Food and Drug Administration, Center for Devices and Radiological Health, and the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, National Personal Protective Technology Laboratory,” available at https://www.fda.gov/AboutFDA/PartnershipsCollaborations/MemorandaofUnderstandingMOUs/DomesticMOUs/.

    List of Subjects in 21 CFR Part 878

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321 et seq., as amended) and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 878 is amended as follows:

    PART 878—GENERAL AND PLASTIC SURGERY DEVICES 1. The authority citation for part 878 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. In § 878.4040, paragraph (b)(1) is revised to read as follows:
    § 878.4040 Surgical apparel.

    (b) Classification. (1) Class II (special controls) for surgical gowns and surgical masks. A surgical N95 respirator or N95 filtering facepiece respirator is not exempt if it is intended to prevent specific diseases or infections, or it is labeled or otherwise represented as filtering surgical smoke or plumes, filtering specific amounts of viruses or bacteria, reducing the amount of and/or killing viruses, bacteria, or fungi, or affecting allergenicity, or it contains coating technologies unrelated to filtration (e.g., to reduce and or kill microorganisms). Surgical N95 respirators and N95 filtering facepiece respirators are exempt from the premarket notification procedures in subpart E of part 807 of this chapter subject to § 878.9, and the following conditions for exemption:

    (i) The user contacting components of the device must be demonstrated to be biocompatible.

    (ii) Analysis and nonclinical testing must:

    (A) Characterize flammability and be demonstrated to be appropriate for the intended environment of use; and

    (B) Demonstrate the ability of the device to resist penetration by fluids, such as blood and body fluids, at a velocity consistent with the intended use of the device.

    (iii) NIOSH approved under its regulation.

    Dated: May 14, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-10563 Filed 5-16-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF STATE 22 CFR Parts 50 and 51 [Public Notice 10417] RIN 1400-AD54 Passports AGENCY:

    Department of State.

    ACTION:

    Final rule; stay.

    SUMMARY:

    The Department of State published a final rule in the Federal Register on May 11, 2018, amending the passport rules for the Department of State (the Department). The document stays the amendments in the May 11 rule until June 10, 2018.

    DATES:

    Effective May 17, 2018, §§ 50.7(d), 50.11(b), 51.4(g)(1) and (8), 51.60(h) and (i), 51.62, 51.65, 51.66, and 51.70 through 51.74, are stayed until June 10, 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 of State published a final rule on May 11, 2018 (83 FR 21872), which provided that the rule was effective on the date of publication. This document provides a stay of the amendments in that rule until 30 days after the date of the May 11, 2018, publication. The Regulatory Analysis published with that final rule is unchanged by this publication.

    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 above, the changes to 22 CFR parts 50 and 51 are stayed 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.

    § 50.7 [Amended]
    2. In § 50.7, effective May 17, 2018, until June 10, 2018, paragraph (d) is stayed.
    § 50.11 [Amended]
    3. In § 50.11, effective May 17, 2018, until June 10, 2018, paragraph (b) is stayed. PART 51—PASSPORTS 4. The authority citation for part 51 continues 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.

    § 51.4 [Amended]
    5. In § 51.4, effective May 17, 2018, until June 10, 2018, paragraphs (g)(1) and (8) are stayed.
    § 51.60 [Amended]
    6. In § 51.60, effective May 17, 2018, until June 10, 2018, paragraphs (h) and (i) are stayed.
    § 51.62 [Amended]
    7. Effective May 17, 2018, until June 10, 2018, § 51.62 is stayed.
    § 51.65 [Amended]
    8. Effective May 17, 2018, until June 10, 2018, § 51.65 is stayed.
    § 51.66 [Amended]
    9. Effective May 17, 2018, until June 10, 2018, § 51.66 is stayed.
    § 51.70 [Amended]
    10. Effective May 17, 2018, until June 10, 2018, § 51.70 is stayed.
    § 51.71 [Amended]
    11. Effective May 17, 2018, until June 10, 2018, § 51.71 is stayed.
    § 51.72 [Amended]
    12. Effective May 17, 2018, until June 10, 2018, § 51.72 is stayed.
    § 51.73 [Amended]
    13. Effective May 17, 2018, until June 10, 2018, § 51.73 is stayed.
    § 51.74 [Amended]
    14. Effective May 18, 2018, until June 10, 2018, § 51.74 is stayed. Janet M. Freer, Director, Office of Directives Management, Department of State.
    [FR Doc. 2018-10653 Filed 5-16-18; 8:45 am] BILLING CODE 4710-24-P
    DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 925 [SATS No. MO-042-FOR; Docket ID: OSM-2014-0002; S1D1S SS08011000 SX064A000 189S180110; S2D2S SS08011000 SX064A000 18XS501520] Missouri Regulatory Program AGENCY:

    Office of Surface Mining Reclamation and Enforcement, Interior.

    ACTION:

    Final rule; approval and required amendments.

    SUMMARY:

    We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, an amendment to the Missouri regulatory program (Missouri program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Missouri proposed revisions to its coal Ownership and Control Rules. Missouri intends to revise its program to be no less effective than the Federal regulations and to improve operational efficiency.

    DATES:

    The effective date is June 18, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Len Meier, Division Chief, Alton Field Division, Office of Surface Mining Reclamation and Enforcement, 501 Belle Street, Suite 216, Alton, IL 62002. Telephone: (618) 463-6460. Email: [email protected]

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

    Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Missouri program on November 21, 1980. You can find background information on the Missouri program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the November 21, 1980, Federal Register (45 FR 77027). You can also find later subsequent actions concerning the Missouri program and program amendments at 30 CFR 925.10, 925.12, 925.15, and 925.16.

    II. Submission of the Amendment

    By letter dated February 18, 2014 (Administrative Record No. MO-679), Missouri sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Missouri submitted the amendment in response to a September 30, 2009, letter (Administrative Record No. MO-670A) that OSMRE had sent to Missouri in accordance with 30 CFR 732.17(c) and to improve operational efficiency. Missouri proposed revisions to Title 10 of its Code of State Regulations (CSR) under Division 40 Land Reclamation Commission. The specific sections of 10 CSR 40 changed by Missouri's amendment are discussed in Part III OSMRE's Findings. Missouri revised its program to be no less effective than the Federal regulations, to change terms, add clarifying language, make grammatical changes, and correct reference errors.

    We announced receipt of the proposed amendment in the May 20, 2014, Federal Register (79 FR 28852). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because neither was requested. The public comment period ended on June 19, 2014. We did not receive any public comments.

    III. OSMRE's Findings

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

    A. 10 CSR 40-6.030—Surface Mining Permit Applications—Minimum Requirements for Legal, Financial, Compliance, and Related Information

    Missouri revised paragraphs (1)(B)1 and 3, and subsections (2)(A) and (4)(C) of this part to clarify the information that must be provided in the permit application. We find that Missouri's revisions makes the regulations no less effective than the corresponding Federal regulations at 30 CFR 778.11(c), 778.12(a), 778.14(a), and 778.16(c), respectively. Therefore, we approve these revisions.

    OSMRE found that Missouri did not revise its regulations to include a counterpart to 30 CFR 778.11(b)(4), which requires information to be provided for, “[e]ach business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator.” Additionally, paragraphs (1)(B) and (1)(C) require names and addresses for certain individuals on the application, but do not require telephone numbers, which is inconsistent with the requirements of 30 CFR 778.11(d)(1). We find that these omissions make Missouri's regulations in this section inconsistent with the corresponding Federal regulations at 30 CFR 778.11(b)(4) and (d)(1).

    B. 10 CSR 40-6.070—Review, Public Participation and Approval of Permit Applications and Permit Terms and Conditions

    Missouri revised subsection (7)(C) of this part by adding “operator” in conjunction with the term “applicant” as an additional person on which permit application information must be collected. We find that Missouri's revision makes its regulations no less effective than the corresponding Federal regulations at 30 CFR 773.14. Therefore, we approve Missouri's revision.

    Missouri revised subsections (8)(M) and (N) of this part by including requirements regarding lands eligible for remining and applicant eligibility as criteria for permit approval or denial. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 785.25 and 773.15(n), respectively. Therefore, we approve Missouri's revisions.

    Missouri added paragraph (11)(A)4 and revised subsection (B) in this part regarding when the regulatory authority will consider a provisionally issued permit to be improvidently issued, under what conditions the permits will be suspended or rescinded if found to be improvidently issued, and the suspension and rescission procedures. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 773.21 through 773.23. Therefore, we approve Missouri's revisions.

    C. 10 CSR 40-6.100—Underground Mining Permit Applications—Minimum Requirements for Legal, Financial, Compliance, and Related Information

    Missouri revised subsections (1)(B) and (2)(A) of this part to clarify who must be identified and who must provide compliance information in a permit application. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 778.11 and 778.14, respectively. Therefore, we are approving Missouri's revisions.

    OSMRE found that Missouri did not revise its regulations to include a counterpart to 30 CFR 778.11(b)(4), which requires information to be provided for, “[e]ach business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator.” Additionally, paragraphs (1)(B) and (1)(C) require names and addresses for certain individuals on the application, but do not require telephone numbers, which is inconsistent with the requirements of 30 CFR 778.11(d)(1). We find that these omissions make Missouri's regulations in this section inconsistent with the corresponding Federal regulations at 30 CFR 778.11(b)(4) and (d)(1).

    D. 10 CSR 40-8.030—Permanent Program Inspection and Enforcement

    Missouri revised subsection (6)(G) of this part by clarifying who is notified following the issuance of a cessation order. We find that Missouri's revision will make its regulations no less effective than the corresponding Federal regulations at 30 CFR 843.11(g). Therefore, we are approving Missouri's revision.

    Missouri also revised subsection (6)(H) of this part regarding post permit issuance information requirements. We find that Missouri's revision is substantively the same as the corresponding Federal regulations at 30 CFR 774.12. Therefore, we are approving Missouri's revision.

    E. 10 CSR 40-8.040—Penalty Assessment

    Missouri revised subsection (5)(B) of this part by increasing the minimum civil penalty amount assessed each day from not less than $750 to not less than $1,025. We find that Missouri's revision is substantively the same as the corresponding Federal regulations at 30 CFR 845.15(b). Therefore, we are approving Missouri's revision.

    IV. Summary and Disposition of Comments Public Comments

    We asked for public comments on the amendment, but did not receive any.

    Federal Agency Comments

    On April 2, 2014, pursuant to 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Missouri program (Administrative Record No. MO-679.01). We did not receive any comments.

    Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Missouri proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on April 2, 2014, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. MO-679.01). The EPA did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 2, 2014, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment (Administrative Record No. MO-679.01), but neither the SHPO nor ACHP responded to our request.

    V. OSMRE's Decision

    Based on the above findings, we are:

    1. Approving, in part, the amendment Missouri sent us on February 18, 2014;

    2. not approving 10 CSR 40-6.030 and 40-6.100, pertaining to the 30 CFR 778.11(b)(4) requirement for applicant and operator information provided in the permit application, and requiring Missouri to submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, at 30 CFR 925.16(v); and

    3. not approving 10 CSR 40-6.030(1)(B)-(C) and 40-6.100(1)(B)-(C), pertaining to the 30 CFR 778.11(d)(1) requirement to include telephone numbers for certain individuals in the permit application, and requiring Missouri to submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, at 30 CFR 925.16(w).

    To implement this decision, we are amending the Federal regulations at 30 CFR part 925, which codify decisions concerning the Missouri program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

    VI. Procedural Determination Executive Order 12630—Takings

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

    Executive Order 12866—Regulatory Planning and Review

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

    Executive Order 12988—Civil Justice Reform

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

    Executive Order 13132—Federalism

    This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Missouri program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Section 2 and 3 of the Executive Order and with the principles of cooperative federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

    Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

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

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

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

    National Environmental Policy Act

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

    Paperwork Reduction Act

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

    Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rulemaking would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

    Small Business Regulatory Enforcement Fairness Act

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

    Unfunded Mandates

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

    List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 13, 2018. Alfred L. Clayborne, Regional Director, Mid-Continent Region.

    For the reasons set out in the preamble, 30 CFR part 925 is amended as set forth below:

    PART 925—MISSOURI 1. The authority citation for part 925 continues to read as follows: Authority:

    30 U.S.C. 1201 et seq.

    2. Section 925.15 is amended in the table by adding an entry in chronological order by “Date of final publication” to read as follows:
    § 925.15 Approval of Missouri regulatory program amendments. Original amendment submission date Date of final publication Citation/description *         *         *         *         *         *         * April 18, 2014 May 17, 2018 10 CSR 40-6.030(1)(B)1., 3., (2)(A), and (4)(C); 6.070(7)(C), (8)(M), (N), (11)(A)4., and (B); 6.100(1)(B) and (2)(A); 8.030(6)(G) and (H); and 8.040(5)(B).
    3. Section 925.16 is amended by adding paragraphs (v) and (w) to read as follows:
    § 925.16 Required program amendments.

    (v) By November 19, 2018, Missouri shall submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, that will add a counterpart to 30 CFR 778.11(b)(4), pertaining to the requirement for applicant and operator information provided in the permit application, at 10 CSR 40-6.030 and 10 CSR 40-6.100.

    (w) By November 19, 2018, Missouri shall submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, that will add a counterpart to 30 CFR 778.11(d)(1), pertaining to the requirement to include telephone numbers for certain individuals in the permit application, at 10 CSR 40-6.030(1)(B)-(C) and 10 CSR 40-6.100(1)(B)-(C).

    [FR Doc. 2018-10482 Filed 5-16-18; 8:45 am] BILLING CODE 4310-05-P
    DEPARTMENT OF DEFENSE Department of the Navy 32 CFR Part 733 [Docket ID: USN-2017-HQ-0006] RIN 0703-AA96 Assistance to and Support of Dependents; Paternity Complaints AGENCY:

    Department of the Navy (DoN), DoD.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule removes DoD's regulation requiring naval personnel to provide support to dependents. It has been determined that the content of this part is internal DoD policy, and while that policy is publicly available, the part should be removed.

    DATES:

    This rule is effective on May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    CDR Amanda Myers, 703-697-1311.

    SUPPLEMENTARY INFORMATION:

    It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's website.

    This part is proprietary or of unique interest to the Department of the Navy. The Military Personnel Manual (MILPERSMAN) (for the Navy) (available at http://www.public.navy.mil/bupers-npc/reference/milpersman/pages/default.aspx) and the Marine Corps Manual for Legal Administration (LEGADMINMAN) (for the Marine Corps) (available at http://www.marines.mil/Portals/59/MCOP5800.16AWCH1-7.pdf) are readily available online and used by commands as administrative tools to determine equitable support when there is no competent court order. There is no right afforded to the public (specifically, dependents) either by statute or internal service regulation. The MILPERSMAN and LEGADMINMAN are clear that the guidelines contained therein are tools that a commander may use to ensure good order and discipline within the unit. For these reasons, this part has been determined to be internal DoD policy and as such, it does not fall under the criteria of rulemaking under the Administrative Procedure Act.

    This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

    List of Subjects in 32 CFR Part 733

    Alimony, Child support, Claims, Military personnel, Wages.

    PART 733—[REMOVED] Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 733 is removed. Dated: May 9, 2018. E.K. Baldini, Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer.
    [FR Doc. 2018-10587 Filed 5-16-18; 8:45 am] BILLING CODE 3810-FF-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2017-0482; FRL-9978-16-OAR] Air Plan Approval; Oregon; Regional Haze Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a revision to the Oregon regional haze State Implementation Plan (SIP) submitted by the state on July 18, 2017. Oregon submitted its Regional Haze Progress Report (“progress report” or “report”) and a negative declaration stating that further revision of the existing regional haze SIP is not needed at this time. Oregon submitted both the progress report and the negative declaration in the form of implementation plan revisions as required by federal regulations. The progress report addresses the federal Regional Haze Rule requirements under the Clean Air Act to submit a report describing progress in achieving reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing plan addressing regional haze.

    DATES:

    This final rule is effective June 18, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2017-0482. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and is publicly available only in hard copy form. Publicly available docket materials are available at https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt at (206) 553-0256, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    I. Background Information

    On March 19, 2018, the EPA proposed to approve Oregon's Regional Haze Progress Report (83 FR 11927). An explanation of the Clean Air Act requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended April 18, 2018.

    II. Response to Comments

    We received three comments on the rulemaking. After reviewing the comments, we have determined that the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. For more information, please see our memorandum included in the docket for this action.

    III. Final Action

    The EPA is approving the Oregon Regional Haze Progress Report, submitted on July 18, 2017, as meeting the applicable requirements of the Clean Air Act and the federal Regional Haze Rule, as set forth in 40 CFR 51.308(g). The EPA has determined that the existing regional haze SIP is adequate to meet the state's visibility goals and requires no substantive revision at this time, as set forth in 40 CFR 51.308(h). We have also determined that Oregon fulfilled the requirements in 40 CFR 51.308(i) regarding state coordination with Federal Land Managers.

    IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely 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 actions such as 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 this action does not involve technical standards; and

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

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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 16, 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: May 7, 2018. Chris Hladick, Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 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 MM—Oregon 2. In § 52.1970, amend the table “STATE OF OREGON AIR QUALITY CONTROL PROGRAM” in paragraph (e) by adding a new entry immediately above the entry for “Section 6—Ambient Air Quality Monitoring Program” to read as follows:
    § 52.1970 Identification of plan.

    (e) * * *

    State of Oregon Air Quality Control Program SIP citation Title/subject State effective date EPA approval date Explanation *         *         *         *         *         *         * 7/13/2012 5/17/2018, [Insert Federal Register citation] Regional Haze Progress Report *         *         *         *         *         *         *
    [FR Doc. 2018-10569 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0787; FRL-9977-25] Pyroxasulfone; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of pyroxasulfone and its metabolites in or on vegetable, tuberous and corm, subgroup 1C; vegetable, bulb, group 3-07; and potatoes, granules/flakes. K-I Chemical USA, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective May 17, 2018. Objections and requests for hearings must be received on or before July 16, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0787, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: RDFRNotices@epa.gov.

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

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0787 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 16, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0787, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of January 26, 2018 (83 FR 3659) (FRL-9971-46), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8521) by K-I Chemical USA, Inc., 11 Martine Ave., Suite 970, White Plains, NY 10606. The petition requested that 40 CFR part 180.659 be amended by establishing tolerances for residues of the herbicide pyroxasulfone, (3-[5-(difluoromethoxy)-1-methyl-3-(trifluoromethyl)pyrazol-4-yl methylsulfonyl]-4,5-dihydro-5,5-dimethyl-1,2-oxazole) in or on Crop Subgroup 1C, tuberous and corm vegetables (except granular/flakes and chips) at 0.05 parts per million (ppm); Crop Subgroup 3-07, bulb vegetables at 0.15 ppm; potatoes, granular/flakes at 0.3 ppm; and potato chips at 0.06 ppm. That document referenced a summary of the petition prepared by K-I Chemical USA, Inc., the registrant, which is available in the docket, http://www.regulations.gov. No comments were received in response to the notice of filing.

    Because the January 26, 2018, document identified the K-I Chemical petition by the wrong petition number, EPA published another document in the Federal Register assigning the correct petition number to the K-I Chemical petition—PP6F8521. That document was published in the Federal Register on March 15, 2018 (83 FR 11448) (FRL-9974-72). No relevant comments were received on the notice of filing.

    Based upon review of the data supporting the petition, EPA has modified the levels at which some of the tolerances are being established and also modified some of the crop definitions. The reasons for these changes are explained in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for pyroxasulfone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyroxasulfone follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    The toxicology database for pyroxasulfone is adequate for evaluating and characterizing toxicity and selecting endpoints for purposes of this risk assessment. Pyroxasulfone acute toxicity to mammals is low by all routes of exposure. Subchronic and chronic oral studies in mice, rats and dogs produced a variety of effects including cardiac toxicity (increased cardiomyopathy), liver toxicity (centrilobular hepatocellular hypertrophy, histopathological and/or clinical pathological indicators), kidney toxicity (nephropathy), neurotoxicity (impaired hind limb function, ataxia, tremors, sciatic nerve lesions, axonal/myelin degeneration in the sciatic nerve and spinal cord sections), skeletal muscle myopathy, urinary bladder mucosal hyperplasia, and urinary bladder transitional cell papillomas. Minimal to mild cardiac myofiber degeneration and local inflammation were also seen in a rat dermal toxicity study. Neurotoxicity was also seen in a developmental neurotoxicity study in rats (decreased brain weight, decreased thickness of the hippocampus, corpus callosum and cerebellum in offspring). Dogs appear to be the most sensitive species to the neurotoxic effects of pyroxasulfone. Immunotoxicity studies in rats and mice show no evidence of immunotoxic effects from pyroxasulfone.

    There is evidence of fetal and offspring susceptibility in the developmental neurotoxicity study in rats as effects occurred in the absence of maternal toxicity. There is no concern for reproductive toxicity. Pyroxasulfone is classified as “Not Likely to be Carcinogenic to Humans” at doses that do not cause crystals with subsequent calculi formation resulting in cellular damage of the urinary tract. The Agency has determined that the quantification of risk using a non-linear approach (i.e., reference dose (RfD)) will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to pyroxasulfone.

    Specific information on the studies received and the nature of the adverse effects caused by pyroxasulfone as the no-observed-adverse effect level (NOAEL) and lowest-observed adverse effect level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Pyroxasulfone Human Health Risk Assessment for the Section 3 New Uses of Pyroxasulfone on Crop Subgroup 1C, tuberous and corm vegetables and Crop Group 3-07, bulb vegetables” at pages 39-53 in docket ID number EPA-HQ-OPP-2015-0787.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a RfD—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see use https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    A summary of the toxicological endpoints for pyroxasulfone used for human risk assessment is shown in the Table 1 of this unit.

    Table 1—Toxicological Doses and Endpoints for Pyroxasulfone for Use in Dietary Human Health Risk Assessments Exposure/scenario Point of
  • departure
  • Uncertainty/
  • FQPA safety factors
  • RfD & PAD Study and toxicological effects
    Acute Dietary (General Population, including Infants and Children) NOAEL= 100 mg/kg UFA= 10x
  • UFH=10x
  • FQPA SF=1x
  • Acute RfD = 1.0 mg/kg
  • aPAD = 1.0 mg/kg
  • Developmental neurotoxicity study (DNT) in rats.
  • The LOAEL of 300 mg/kg/day is based on decreased brain weight in both sexes, reduced thickness of the hippocampus, corpus callosum and cerebellum in postnatal day (PND) 21 female offspring.
  • Chronic Dietary (All Populations) NOAEL= 2 mg/kg/day UFA= 10x
  • UFH=10x
  • FQPA SF=1x
  • Chronic RfD = 0.02 mg/kg/day
  • cPAD = 0.02 mg/kg/day
  • One- year chronic dog study
  • The LOAEL of 10 mg/kg/day is based on impaired hind limb function, ataxia, hind limb twitching and tremors; clinical pathology: increased creatine kinase, aspartate aminotransferase; axonal/myelin degeneration of the sciatic nerve and spinal cord sections.
  • Cancer (all routes) “Not Likely to be Carcinogenic to Humans” at doses that do not cause crystals with subsequent calculi formation resulting in cellular damage of the urinary tract. Risk is quantified using a non-linear (i.e., RfD) approach. Point of Departure (POD) = A data point or an estimated point that is derived from observed dose-response data and used to mark the beginning of extrapolation to determine risk associated with lower environmentally relevant human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = FQPA Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOE = margin of exposure. LOC = level of concern. N/A = not applicable.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to pyroxasulfone, EPA considered exposure under the petitioned-for tolerances as well as all existing pyroxasulfone tolerances in 40 CFR 180.659. EPA assessed dietary exposures from pyroxasulfone in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for pyroxasulfone. In estimating acute dietary exposure, EPA used food consumption data from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey/What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA assumed 100 percent crop treated (PCT) and tolerance-level residues adjusted for metabolites which are not in the tolerance expression.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 (NHANES/WWEIA). As to residue levels in food, EPA assumed 100 PCT and tolerance-level residues adjusted for metabolites which are not in the tolerance expression.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has classified pyroxasulfone as “Not Likely to be Carcinogenic to Humans” at doses that do not cause crystals with subsequent calculi formation resulting in cellular damage of the urinary tract. The Agency has determined that the quantification of risk using a non-linear approach (i.e., RfD) will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to pyroxasulfone.

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and PCT information in the dietary assessment for pyroxasulfone. Tolerance-level residues and 100% crop treated (CT) were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for pyroxasulfone in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of pyroxasulfone. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-riskpesticides.

    Based on the Pesticide Root Zone Model Ground Water (PRZM version 3.122)/Exposure Analysis Modeling System-Superseded (EXAMS version 2.98.04), the estimated concentrations of pyroxasulfone in surface water were minimal, and the highest estimated drinking water concentrations (EDWCs) of pyroxasulfone residues were from a Tier II PRZM-GW modeling at an application rate of 0.267 lbs active ingredient/Acre for registered crops. The same EDWCs have been used for the current human health dietary risk assessment. The EDWCs for peak concentration (used in the acute assessment) and 30-year average concentration (used in the chronic assessment) were 0.210 and 0.174 mg/L (ppm), respectively. Water residues were incorporated in the Dietary Exposure Evaluation Model—Food Commodity Intake Database (DEEM-FCID) into the food categories “water, direct, all sources” and “water, indirect, all sources.”

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Pyroxasulfone is not registered for any specific use patterns that would result in residential exposure.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found pyroxasulfone to share a common mechanism of toxicity with any other substances, and pyroxasulfone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyroxasulfone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-riskpesticides.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA SF. In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. Pyroxasulfone did not exhibit developmental toxicity in the rat guideline study at the limit dose of 1,000 mg/kg/day and it exhibited slight developmental toxicity in rabbits (reduced fetal weight and resorptions) at the limit dose of 1,000 mg/kg/day. However, developmental effects were noted in offspring at 300 mg/kg/day in the rat DNT study characterized as decreased brain weight and morphometric changes. Developmental effects in the rabbit developmental study and DNT study occurred in the absence of maternal toxicity, indicating potential increased quantitative susceptibility of offspring. In a rat reproductive toxicity study, reduced pup weight and body weight gains during lactation occurred at similar doses causing pronounced maternal toxicity (reduced body weight, body weight gain and food consumption and increased kidney weight, cardiomyopathy and urinary bladder mucosal hyperplasia with inflammation).

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X That decision is based on the following findings:

    i. The toxicity database for pyroxasulfone is complete.

    ii. Available data indicates that pyroxasulfone produces neurotoxic effects in rats. The toxicity database includes specific acute and subchronic neurotoxicity tests, as well as a DNT study. Although the DNT indicated offspring are more sensitive to neurotoxic effects of pyroxasulfone, the dose-response is well characterized for neurotoxicity and a NOAEL is identified; therefore, there is no residual uncertainty with regard to neurotoxic effects for which a 10X must be retained.

    iii. Evidence of increased susceptibility of fetuses and offspring was seen in a DNT study in rats and a developmental study in rabbits following in utero or post-natal exposure to pyroxasulfone. However, no susceptibility was seen in the rat developmental or reproduction studies. In rabbits, developmental toxicity was only seen at the limit dose of 1000 mg/kg/day as reduced fetal weight and increased fetal resorptions with a NOAEL of 500 mg/kg/day for these effects, compared to no maternal toxicity at these doses. In a DNT study in rats, offspring toxicity was seen at 300 mg/kg/day compared to no maternal toxicity at 900 mg/kg/day. This increased susceptibility is occurring at high doses. NOAELs and LOAELs have been identified for all effects of concern and thus, a clear dose response has been well defined. Therefore, residual uncertainties or concerns for pre- and/or post-natal toxicity are minimal, and EPA concludes that reducing the FQPA safety factor to 1X will be protective of such effects.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pyroxasulfone in drinking water. These assessments will not underestimate the exposure and risks posed by pyroxasulfone.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to pyroxasulfone will occupy 3.7% of the aPAD for all infants less than 1-year old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to pyroxasulfone from food and water will utilize 50% of the cPAD for all infants less than 1-year old, the population group receiving the greatest exposure.

    3. Short-term and intermediate-term risk. Short-term and intermediate-term aggregate exposure takes into account short-term and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Although short-term and intermediate-term adverse effects were identified, pyroxasulfone is not registered for any use patterns that would result in residential exposure. Therefore, EPA relies on the chronic dietary risk assessment for evaluating short-term and intermediate-term risk for pyroxasulfone.

    4. Aggregate cancer risk for U.S. population. As explained in Unit III.A., the Agency has determined that the quantification of risk using a non-linear (i.e., RfD) approach will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to pyroxasulfone. Therefore, based on the results of the chronic risk assessment discussed in Unit III.E.2., pyroxasulfone is not expected to pose a cancer risk to humans.

    5. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to pyroxasulfone residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (high performance liquid chromatography/triple quadrupole mass spectrometry (LC/MS/MS) methods) are available to enforce the tolerance expression.

    These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for pyroxasulfone in any of the proposed commodities.

    C. Revisions to Petitioned-For Tolerances

    The vegetable, tuberous and corm, subgroup 1C tolerance is being established at 0.08 ppm instead of 0.05 ppm. The petitioner's requested tolerance level included only residues from the parent and M1 metabolite. The Agency is establishing this tolerance at 0.08 ppm to account for the measurement of parent and four metabolites. Applying processing factors in accordance with the Agency's policy for determining such factors when measuring multiple pesticide residues, the Agency has determined that 0.20 ppm is an appropriate tolerance level for granules/flakes. In addition, The Agency has determined that a tolerance for potato chips is not required because residues will be within the tolerance level established for subgroup 1C.

    V. Conclusion

    Therefore, tolerances are established for residues of pyroxasulfone including its metabolites and degradates, in or on potatoes, granules/flakes at 0.20 ppm; vegetable, bulb, group 3-07 at 0.15 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.08 ppm.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: May 8, 2018. Daniel Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.659, add alphabetically “Potato, granules/flakes”, “Vegetable, bulb, group 3-07”, and “Vegetable, tuberous and corm, subgroup 1C” to the table in paragraph (a)(5) to read as follows:
    § 180.659 Pyroxasulfone; tolerances for residues.

    (a) * * *

    (5) * * *

    Commodity Parts per million *    *    *    *    * Potato, granules/flakes 0.20 *    *    *    *    * Vegetable, bulb, group 3-07 0.15 *    *    *    *    * Vegetable, tuberous and corm, subgroup 1C 0.08
    [FR Doc. 2018-10582 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-OLEM-2017-0604, 0606, 0607, 0609, 0611 and 0612; FRL-9978-14-OLEM] National Priorities List AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“the EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule adds six sites to the General Superfund section of the NPL.

    DATES:

    The document is effective on June 18, 2018.

    ADDRESSES:

    Contact information for the EPA Headquarters:

    • Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue NW, William Jefferson Clinton Building West, Room 3334, Washington, DC 20004, 202/566-0276.

    The contact information for the regional dockets is as follows:

    • Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

    • Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.

    • Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

    • Cathy Amoroso, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW, Mailcode 9T25, Atlanta, GA 30303; 404/562-8637.

    • Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

    • Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.

    • Kumud Pyakuryal, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRSTAR, Lenexa, KS 66219; 913/551-7956.

    • Victor Ketellapper, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6578.

    • Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.

    • Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.

    FOR FURTHER INFORMATION CONTACT:

    Terry Jeng, phone: (703) 603-8852, email: [email protected] Site Assessment and Remedy Decisions Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (Mailcode 5204P), U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue NW, Washington, DC 20460; or the Superfund Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the Construction Completion List (CCL)? J. What is the Sitewide Ready for Anticipated Use measure? K. What is state/tribal correspondence concerning NPL Listing? II. Availability of Information to the Public A. May I review the documents relevant to this final rule? B. What documents are available for review at the EPA Headquarters docket? C. What documents are available for review at the EPA regional dockets? D. How do I access the documents? E. How may I obtain a current list of NPL sites? III. Contents of This Final Rule A. Additions to the NPL B. What did the EPA do with the public comments it received? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments H. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks I. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act I. Background A. What are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

    B. What is the NCP?

    To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

    As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

    C. What is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

    D. How are sites listed on the NPL?

    There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

    • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

    • The EPA determines that the release poses a significant threat to public health.

    • The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

    The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

    E. What happens to sites on the NPL?

    A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with a permanent remedy, taken instead of or in addition to removal actions” (40 CFR 300.5). However, under 40 CFR 300.425(b)(2), placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

    F. Does the NPL define the boundaries of sites?

    The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

    Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

    When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

    In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

    EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

    Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

    For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

    G. How are sites removed from the NPL?

    The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

    (i) Responsible parties or other persons have implemented all appropriate response actions required;

    (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

    (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

    H. May the EPA delete portions of sites from the NPL as they are cleaned up?

    In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

    I. What is the Construction Completion List (CCL)?

    The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

    Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For more information on the CCL, see the EPA's internet site at https://www.epa.gov/superfund/construction-completions-national-priorities-list-npl-sites-number.

    J. What is the Sitewide Ready for Anticipated Use measure?

    The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-9.

    K. What is state/tribal correspondence concerning NPL listing?

    In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

    The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

    A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's website at http://semspub.epa.gov/src/document/HQ/174024.

    II. Availability of Information to the Public A. May I review the documents relevant to this final rule?

    Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices.

    An electronic version of the public docket is available through https://www.regulations.gov (see table below for docket identification numbers). Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facilities identified in section II.D.

    Docket Identification Numbers by Site Site name City/County, State Docket ID No. Hockessin Groundwater Hockessin, DE EPA-HQ-OLEM-2017-0604. Franklin Street Groundwater Contamination Spencer, IN EPA-HQ-OLEM-2017-0606. Spring Park Municipal Well Field Spring Park, MN EPA-HQ-OLEM-2017-0607. Burlington Industries Cheraw Cheraw, SC EPA-HQ-OLEM-2017-0609. Lane Plating Works, Inc Dallas, TX EPA-HQ-OLEM-2017-0611. River City Metal Finishing San Antonio, TX EPA-HQ-OLEM-2017-0612. B. What documents are available for review at the EPA Headquarters docket?

    The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score and a list of documents referenced in the documentation record for each site.

    C. What documents are available for review at the EPA regional dockets?

    The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.

    D. How do I access the documents?

    You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. Please contact the regional dockets for hours. For addresses for the headquarters and regional dockets, see Addresses section in the beginning portion of this preamble.

    E. How may I obtain a current list of NPL sites?

    You may obtain a current list of NPL sites via the internet at https://www.epa.gov/superfund/national-priorities-list-npl-sites-site-name or by contacting the Superfund docket (see contact information in the beginning portion of this document).

    III. Contents of This Final Rule A. Additions to the NPL

    This final rule adds the following six sites to the General Superfund section of the NPL. These sites are being added to the NPL based on HRS score.

    General Superfund section:

    State Site name City/County DE Hockessin Groundwater Hockessin. IN Franklin Street Groundwater Contamination Spencer. MN Spring Park Municipal Well Field Spring Park. SC Burlington Industries Cheraw Cheraw. TX Lane Plating Works, Inc Dallas. TX River City Metal Finishing San Antonio. B. What did the EPA do with the public comments it received?

    The EPA reviewed all comments received on the sites in this rule and responded to all relevant comments. The EPA is adding six sites to the NPL in this final rule. All six sites were proposed for NPL addition on January 18, 2018 (83 FR 2576). The sites are: Hockessin Groundwater in Hockessin, DE; Franklin Street Groundwater Contamination in Spencer, IN; Spring Park Municipal Well Field in Spring Park, MN; Burlington Industries Cheraw in Cheraw, SC; Lane Plating Works, Inc. in Dallas, TX; and, River City Metal Finishing in San Antonio, TX.

    Comments on the Franklin Street Groundwater Contamination site are being addressed in a response to comment support document available in the public docket concurrently with this rule.

    For the Hockessin Groundwater site, the EPA received several comments supporting NPL listing, several comments unrelated to NPL listing and two anonymous comments questioning site investigation and interim mitigation measures, timing of cleanup actions and potential remedies. In response, EPA is adding the site to the NPL as the best way to ensure that cleanup proceeds in a timely manner. NPL listing makes a site eligible for remedial action funding under CERCLA. The site will be further investigated during the remedial investigation/feasibility study (RI/FS) phase of the Superfund process to determine what response, if any, is appropriate to ensure protection of public health and the environment.

    The EPA received no comments on the Spring Park Muncipal Well Field site.

    The EPA received one comment from a community member regarding the Burlington Industries Cheraw site. The commenter expressed their opposition to NPL listing based on concerns that listing may negatively affect their property value. Economic factors such as those raised by the commenter are generally not considered in the assessment of whether a site belongs on the NPL. The EPA notes that there are both costs and benefits that can be associated with listing a site. Among the benefits are increased health and environmental protection as a result of increased public awareness of potential hazards. In addition to the potential for federally financed remedial actions, the addition of a site to the NPL could accelerate privately financed, voluntary cleanup efforts. Listing sites as national priority targets also may give states increased support for funding responses at particular sites. As a result of the additional CERCLA remedies, there will be lower human exposure to high-risk chemicals, and higher quality surface water, ground water, soil, and air. Therefore, it is possible that any perceived or actual negative fluctuations in property values or development opportunities that may result from contamination may also be countered by positive fluctuations when a CERCLA investigation and any necessary cleanup are completed.

    For the Lane Plating Works, Inc. site, the EPA received only one comment related to NPL listing. The comment, submitted by the city of Dallas' Office of Environmental Quality, supports NPL listing in order to facilitate federal funding for full and complete remediation.

    The EPA received two comments supporting the NPL listing of the River City Metal Finishing site, one from a community member and one from a student.

    IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulation 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 rule does not contain any information collection requirements that require approval of the OMB.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

    F. Executive Order 13132: Federalism

    This final rule 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. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

    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 this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

    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 the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    L. Congressional Review Act

    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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983), and Bd. of Regents of the University of Washington v. EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996), cast the validity of the legislative veto into question, the EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

    If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the Federal Register.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Dated: May 9, 2018. Barry N. Breen, Acting Assistant Administrator, Office of Land and Emergency Management.

    40 CFR part 300 is amended as follows:

    PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 1. The authority citation for part 300 continues to read as follows: Authority:

    33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.

    2. Table 1 of appendix B to part 300 is amended by adding entries for “Hockessin Groundwater”, “Franklin Street Groundwater Contamination”, “Spring Park Municipal Well Field”, “Burlington Industries Cheraw”, “Lane Plating Works, Inc.”, and “River City Metal Finishing” in alphabetical order by state to read as follows: Appendix B to Part 300—National Priorities List Table 1—General Superfund Section State Site name City/County Notes (a) *         *         *         *         *         *         * DE Hockessin Groundwater Hockessin *         *         *         *         *         *         * IN Franklin Street Groundwater Contamination Spencer *         *         *         *         *         *         * MN Spring Park Municipal Well Field Spring Park *         *         *         *         *         *         * SC Burlington Industries Cheraw Cheraw *         *         *         *         *         *         * TX Lane Plating Works, Inc Dallas *         *         *         *         *         *         * TX River City Metal Finishing San Antonio *         *         *         *         *         *         * (a)A = Based on issuance of health advisory by Agency for Toxic Substances and Disease Registry (if scored, HRS score need not be greater than or equal to 28.50).
    [FR Doc. 2018-10464 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 350, 360, 365, 373, 380, 382, 383, 384, 385, 387, 390, 393, 395, 396, 397, and 398 RIN 2126-AC06 General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    FMCSA amends its regulations by making technical corrections throughout the Federal Motor Carrier Safety Regulations. The Agency makes minor changes to correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and improve the clarity and consistency of certain regulatory provisions.

    DATES:

    This rule is effective June 18, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mr. David Miller, Federal Motor Carrier Safety Administration, Regulatory Development Division, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, by telephone at (202) 366-5370 or via email at [email protected] Office hours are from 9:00 a.m. to 5:00 p.m. e.t., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    I. Legal Basis for the Rulemaking

    Congress delegated certain powers to regulate interstate commerce to the United States Department of Transportation (DOT or Department) in numerous pieces of legislation, most notably in section 6 of the Department of Transportation Act (DOT Act) (Pub. L. 89-670, 80 Stat. 931, Oct. 15, 1966). Section 6 of the DOT Act transferred to the Department the authority of the former Interstate Commerce Commission (ICC) to regulate the qualifications and maximum hours-of-service of employees, the safety of operations, and the equipment of motor carriers in interstate commerce. This authority, first granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The regulations issued under this (and subsequently enacted) authority became known as the Federal Motor Carrier Safety Regulations (FMCSRs), codified at 49 CFR parts 350-399. The administrative powers to enforce chapter 315 (codified in 49 U.S.C. chapter 5) were also transferred from the ICC to the DOT in 1966 and assigned, first to the Federal Highway Administration (FHWA), and then to FMCSA. The FMCSA Administrator has been delegated authority under 49 CFR 1.87 to carry out the motor carrier functions vested in the Secretary of Transportation.

    Between 1984 and 1999, a number of statutes added to FHWA's authority. Various statutes authorize the enforcement of the FMCSRs, the Hazardous Materials Regulations (HMRs), and the Commercial Regulations, and provide both civil and criminal penalties for violations of these requirements. These statutes include the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C. chapter 311, subchapter III; the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), codified at 49 U.S.C. chapter 313; the Hazardous Materials Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615, 104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; and the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149.

    The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999) established FMCSA as a new operating administration within DOT, effective January 1, 2000. The motor carrier safety responsibilities previously assigned to both the ICC and FHWA are now assigned to FMCSA.

    Congress expanded, modified, and amended FMCSA's authority in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Pub. L. 107-56, 115 Stat. 272, Oct. 26, 2001); the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005); the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, June 6, 2008); the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, July 6, 2012); and the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015).

    The specific regulations amended by this rule are based on the statutes detailed above. Generally, the legal authority for each of those provisions was explained when the requirement was originally adopted and is noted at the beginning of each part in title 49 of the CFR.

    The Administrative Procedure Act (APA) (5 U.S.C. 551-706) specifically provides exceptions to its notice and comment rulemaking procedures when the Agency finds there is good cause to dispense with them, and incorporates the finding and a brief statement of reasons therefore in the rules issued. Generally, good cause exists when the Agency determines that notice and public procedures are impractical, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(3)(B)). The amendments made in this final rule merely correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and make minor changes to improve clarity and consistency. The technical amendments do not impose any material new requirements or increase compliance obligations. For these reasons, FMCSA finds good cause that notice and public comment on this final rule are unnecessary.

    The APA also allows agencies to make rules effective immediately with good cause (5 U.S.C. 553(d)(3)), instead of requiring publication 30 days prior to the effective date. For the reasons already stated, FMCSA finds there is good cause for this rule to be effective immediately.

    FMCSA is aware of the regulatory requirements concerning public participation in FMCSA rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain major rules,1 but, because this final rule is not a major rule, they are not applicable. In any event, the Agency finds that publication of an advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A), or a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the public interest in accordance with the waiver provision in 49 U.S.C. 31136(g)(3).

    1 A “major rule” means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in (a) an annual effect on the economy of $100 million or more; (b) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (c) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets 5 U.S.C. 804(2)). Exception: The term “major rule” does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.

    II. Background

    This document makes changes to correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and improve clarity and consistency. These amendments, however, do not impose any material new requirements. The reasons for each of these minor revisions are described below in the Section-by-Section Analysis.

    III. Section-by-Section Analysis

    This section-by-section analysis describes the technical amendment provisions in numerical order.

    A. Part 350 Section 350.105 What definitions are used in this part?

    FMCSA adds a definition of “New Entrant Safety Audits” to § 350.105. On October 14, 2016 (81 FR 71002, 71010), FMCSA made various amendments to § 350.105 to ensure the section was current and consistent with the requirements of the FAST Act, enacted on December 4, 2015. Inadvertently, the definition for “New Entrant Safety Audits” was not included in the amendatory language—the description of a rule that immediately precedes each change—though it was included in the regulatory text itself. This addition corrects this oversight.

    Section 350.335 What are the consequences if a state has laws or regulations incompatible with the federal regulations?

    FMCSA corrects the introductory text for paragraph (a) by changing a cross reference incorrectly given as “49 CFR 320.215” to read “49 CFR 350.215.” This error originally appeared in a rule FMCSA published to conform part 350 to the FAST Act on October 14, 2016 (81 FR 71015). This amendment corrects that error.

    B. Part 360 Section 360.1T Fees for Registration-Related Services

    FMCSA changes § 360.1T to correct the name of the office and routing code of the “Office of Data Analysis and Information Systems” to read the “Office of Registration and Safety Information (MC-RS)” in paragraphs (a) and (d)(2). This change reflects the current name of the office with those responsibilities. Section 360.1 (suspended) does not require a corresponding change.

    Section 360.3T Filing Fees

    In § 360.3T, paragraphs (a)(2) introductory text and (a)(2)(iii), FMCSA removes the references to “Office of Enforcement and Compliance, Insurance Compliance Division (MC-ECI).” In their place, FMCSA adds references to the “Office of Registration and Safety Information (MC-RS).” In paragraphs (e)(2)(i) and (e)(2)(iii), FMCSA removes the references to “Director, Office of Data Analysis and Information Systems” and replaces them with references to the “Director, Office of Registration and Safety Information (MC-RS).” This change reflects the current name of the office with those responsibilities. Section 360.3 (suspended) refers to the office correctly.

    C. Part 365 Section 365.403T Definitions

    FMCSA changes § 365.403T(a), which defines “transfer,” to remove the footnote as originally drafted by the former ICC and, instead, make it part of the CFR text. This amendment makes the former footnote paragraph (a)(2). This footnote has been part of the rule text since it was originally published on February 18, 1988 (52 FR 4852). The footnote further describes what is meant by a transfer, and contains exceptions. It should properly be part of the regulatory text. Section 365.403 (suspended) does not require a corresponding change.

    D. Part 373 Section 373.103 For-Hire, Non-Exempt Expense Bills

    FMCSA reorganizes § 373.103 to number the undesignated paragraphs following paragraphs (a)(11) and (b)(11). The Agency redesignates current paragraphs (a)(1) through (11) as paragraphs (a)(1)(i) through (xi) and the undesignated paragraph as (a)(2). Paragraphs (b)(1) through (11) are redesignated as paragraphs (b)(1)(i) through (xi) and the undesignated paragraph becomes paragraph (b)(2). Though these undesignated paragraphs have been part of the rule since it was added by the ICC as 49 CFR 1051.2 on March 27, 1990 (55 FR 11198), undesignated paragraphs are contrary to the style of the Office of the Federal Register, which requires that all text in a section be designated.2

    2Document Drafting Handbook, Office of the Federal Register, National Archives and Records Service, updated May 2017. Page 3-31

    E. Part 380 Section 380.107 General Requirements

    FMCSA corrects the reference to “appendix” in paragraph (a) to refer to “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix. This amendment corrects that oversight.

    Section 380.109 Driver Testing

    In § 380.109, published March 30, 2004 (69 FR 16733), the Agency makes a number of corrections. FMCSA corrects the references to “appendix” in paragraphs (a)(1), (a)(5), (a)(6), and (a)(7) to refer to “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.

    FMCSA also removes paragraph (d), which references the “Examiner's Manual for Commercial Driver's License Tests.” This American Association of Motor Vehicle Administrators (AAMVA) publication is intended for use by the States, and is not available to the general public.

    Section 380.201 General Requirements

    FMCSA corrects references to “appendix” in paragraphs (a) introductory text and (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.

    Section 380.203 LCV Doubles

    FMCSA corrects the references to “appendix” in paragraph (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but did not change all the cross references to the appendix.

    Section 380.205 LCV Triples

    FMCSA corrects the references to “appendix” in paragraph (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.

    Section 380.303 Substitute for Instructor Requirements

    FMCSA corrects the references to “appendix” in paragraph (a) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.

    Subpart E—Entry-Level Driver Training Requirements Before February 7, 2020

    FMCSA changes the heading of subpart E of part 380 to read: “Subpart E—Entry-Level Driver Training Requirements Before February 7, 2020.” On December 8, 2016 (81 FR 88790), FMCSA attempted to change the heading of subpart E of part 380; however, the Office of the Federal Register could not incorporate the amendment into the CFR due to an inaccurate amendatory instruction. This corrects that error. The sections of subpart E, §§ 380.501 to 380.513, were not modified by that rulemaking.

    Section 380.605 Definitions

    FMCSA reorganizes § 380.605 to make the numbering conform to the style required by the Office of the Federal Register using Arabic numbers rather than the small Roman numerals used in the December 8, 2016 (81 FR 88790-91), final rule. The Office of the Federal Register recommends to not designate paragraphs and introductory phrases, such as was used for (a) and (b) on page 88790. FMCSA has removed paragraph designations (a) and (b), so that the information is now in an undesignated introductory paragraph.

    In the definitions for “Behind-the-wheel (BTW) instructor,” and “Theory instructor,” FMCSA also amends the paragraphs that begin “Exception,” to show that they are actually applicable to subordinate paragraphs (1) and (2), not just subordinate paragraph (2). The Agency inadvertently made this error when these two definitions were added, but the preamble to the December 8, 2016, final rule made this fact clear at 81 FR 88775.

    Section 380.713 Instructor Requirements

    FMCSA revises § 380.713 to correct several grammatical errors. No substantive changes are made.

    Appendix A to Part 380—Class A—CDL Training Curriculum

    FMCSA corrects Units A1.2.7 and A1.5.6 by removing small, typographical errors and grammatical mistakes. FMCSA added Appendix A as part of the entry-level driver training rule on December 8, 2016 (81 FR 88794).

    Appendix B to Part 380—Class B—CDL Training Curriculum

    FMCSA corrects Appendix B by changing a heading, incorrectly numbered as “Unit 1.3,” to correctly read “Unit B1.1.3 Pre- and Post-Trip Inspections.” Appendix B to Part 380 was added December 8, 2016 (81 FR 88797).

    F. Part 382 Section 382.403 Reporting of Results in a Management Information System

    In § 382.403(e), FMCSA adds the phrase “as defined in 49 CFR 382.107.” FMCSA wants to clarify that “Designated employer representative” is a specific term defined in § 382.107.

    G. Part 383 Section 383.5 Definitions

    In § 383.5, FMCSA changes the definition of “Conviction” to correct the last word of the entry to read “probated,” rather than “prorated,” to correct an error introduced in an October 2, 2014 technical amendment (79 FR 59451, 59455-56). FHWA published its revised definition of “Conviction” on October 4, 1988 (53 FR 39050). It was based on Section 6-205(c) of the Uniform Vehicle Code [1987] as adopted by the Legal Services Committee of AAMVA, and read: “Conviction means . . . regardless of whether or not the penalty is rebated, suspended, or probated.”

    Section 383.23 Commercial Driver's License

    FMCSA amends footnote 1 to § 383.23(b)(1). The commercial drivers' license reciprocity memorandum of understanding (MOU) between the United States and Mexico was amended effective January 19, 2017; therefore, FMCSA updates the footnote to reflect the date of the amended MOU.

    Section 383.73 State Procedures

    FMCSA changes § 383.73(b)(8) by removing a cross reference to § 383.71(b)(1)(i). This corrects a typographical error that was inadvertently and incorrectly added to the paragraph.

    H. Part 384 Section 384.301 Substantial Compliance—General Requirements

    FMCSA adds a new paragraph (k) to § 384.301 to provide the date a State must come into substantial compliance with the provisions of the Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators rule. On December 8, 2016 (81 FR 88803), this final rule inadvertently added a new paragraph (j) to § 384.301. Because there was an existing paragraph (j), the Office of the Federal Register could not make that addition. To correct that mistake, FMCSA adds the paragraph as § 384.301(k).

    I. Part 385 Section 385.203 What are the requirements to obtain and maintain certification?

    In paragraph (c), FMCSA corrects the address where the public may obtain hard copies of its training, performance, and maintenance of certification/qualification requirements.

    Appendix B to Part 385—Explanation of Safety Rating Process

    FMCSA corrects Appendix B to Part 385 by updating the section citations and text relating to §§ 382.309 and 382.605 in section VII, List of Acute and Critical Regulations. On December 19, 2000, the Department revised its drug and alcohol testing regulations set forth in 49 CFR part 40 (65 FR 79462). On August 17, 2001, FMCSA amended its drug testing rules in 49 CFR part 382 to conform to the new requirements contained in part 40. FMCSA explained that employers and employees affected by part 382 have always been required to adhere to parts 40 and 382 to comply with FMCSA's drug and alcohol testing requirements. The rule referred the reader directly to part 40 instead of duplicating part 40 rule text in part 382 to promote drafting economy and consistency of interpretation (66 FR 43097). As such, the rule removed all the prior text from §§ 382.309 and 382.605 and, instead, incorporated by reference the appropriate provisions of part 40 (66 FR 43109, 43113). The references to §§ 382.309 and 382.605 in section VII, however, were not updated to reflect the revised section citations or direct the reader to the applicable provisions in part 40. The following changes correct those errors.

    Paragraphs (a) and (b) of § 382.309 are deleted and replaced by a new § 382.309 that combines the return-to-duty testing provisions set forth previously in paragraphs (a) and (b) and directs the reader to their location in part 40. Paragraph (c)(1) of § 382.605 is deleted because it is duplicates the requirements of § 382.309. Paragraph (c)(2)(ii) of § 382.605 is deleted and replaced with a new citation for § 382.605 that sets forth the provisions previously in paragraph (c)(2)(ii) and directs the reader to their location in 49 CFR part 40.

    FMCSA corrects the section citation for “§ 395.8(e)(2)” by adding a reference to § 395.8(e)(3), to correct an oversight.

    The section citation to “§ 172.802(b)” is corrected to read “§ 172.802(c)” to reflect the Pipeline and Hazardous Materials Safety Administration (PHMSA) redesignation of that section on March 9, 2010 (75 FR 10989). FMCSA also changes the section citation to “§ 173.421(a)” to read “§ 173.421.” On July 11, 2014 (79 FR 40613), PHMSA revised § 173.421 and FMCSA corrects this citation to reflect this.

    J. Part 387 Section 387.3 Applicability

    FMCSA amends § 387.3(c)(1) by removing the word “part” in the first sentence and replacing it with the word “subpart.” This change is necessary because the Agency inadvertently failed to reconcile existing language in part 387 with language introduced as a result of the ICCTA (Pub. L. 104-88, sec. 204(a), 109 Stat. 803, 941, Dec. 29, 1995). Because of the ICCTA, 49 CFR parts 1043 and 1084 were redesignated as 49 CFR part 387, subparts C and D, respectively, which establish minimum levels of financial responsibility for certain small freight vehicles (61 FR 54709, Oct. 21, 1996). This created a conflict with the language in § 387.3(c)(1) that states “the rules in this part do not apply to a motor vehicle that has a gross vehicle weight rating (GVWR) of less than 10,001 pounds.” By changing the word “part” to “subpart,” the language is reconciled and the conflict is eliminated. Because of the addition of subparts C and D to part 387, FMCSA also changes “part” to “subpart” in § 387.3(c)(2).

    Section 387.7 Financial Responsibility Required

    FMCSA clarifies § 387.7(b)(3) by reorganizing the section to eliminate an undesignated paragraph and by correcting the spelling of the word “Mexican.”

    Section 387.33 (Suspended) and Section 387.33T Financial Responsibility, Minimum Levels

    FMCSA moves the provision, “Except as provided in § 387.27(b),” now shown as a footnote in both §§ 387.33 (suspended) and 387.33T, to the introductory text in each section. Furthermore, FMCSA updates the table in § 387.33T by removing the references to the 1983 and 1985 effective dates, which are no longer necessary, and showing only the current $5 and $1.5 million minimum limits of public liability insurance required. In addition, FMCSA clarifies that the seating capacity shown in the table in § 387.33T includes the driver, and redesignates the entries in the table as (a) and (b) to conform to Office of the Federal Register style.

    Section 387.301 (Suspended) and Section 387.301T Surety Bond, Certificate of Insurance, or Other Securities

    FMCSA changes both § 387.301(b) (suspended) and § 387.301T(b) to reference the definitions of “household goods motor carriers” and “individual shippers” in § 375.103, rather than the more general “part 375.” FMCSA amends these sections to clarify for the reader specifically where these definitions are in the CFR.

    Section 387.303 (Suspended) and Section 387.303T Security for the Protection of the Public: Minimum Limits

    Both §§ 387.303 (suspended) and 387.303T have an undesignated paragraph following paragraph (b)(4)(iii). In both § 387.303 (suspended) and § 387.303T, FMCSA designates those paragraphs as (b)(5). An undesignated paragraph is contrary to the style required by the Office of the Federal Register and makes it difficult to reference or change those paragraphs.

    Section 387.313 (Suspended) Forms and Procedures

    FMCSA corrects § 387.313(a)(6) (suspended) by renumbering paragraphs (a)(6)(1) and (a)(6)(2) as (a)(6)(i) and (a)(6)(ii). FMCSA makes this change to conform to Office of the Federal Register style. This error does not appear in § 387.313T, because the subparagraphs are correctly shown as (a)(6)(i) and (a)(6)(ii).

    K. Part 390 Section 390.3 (Suspended) and 390.3T General Applicability

    FMCSA amends § 390.3 (suspended) to clarify that the coercion rules in § 390.6 apply to shippers, receivers, consignees, brokers, freight forwarders, and other transportation intermediaries. The first Unified Registration System rule (URS) was published August 23, 2013 (78 FR 52608). The coercion rules, which prohibit shippers, receivers, consignees, and transportation intermediaries from coercing drivers of commercial motor vehicles (CMV) operating in interstate commerce to violate certain safety regulations, were subsequently published November 30, 2015 (80 FR 74710). Inadvertently, FMCSA failed to add shippers, receivers, consignees, broker, freight forwarder, and other transportation intermediaries to the general applicability requirements in § 390.3 (suspended) when it corrected and delayed the URS rule on July 28, 2016 (81 FR 49554), as well as in the indefinite URS suspension and amendments made on January 17, 2017 (82 FR 5310).

    To correct this oversight, FMCSA adds a specific reference to § 390.6, Coercion prohibited, in § 390.3(i)(4) (suspended), which lists the provisions in 49 CFR chapter III, subchapter B that apply to brokers. Also, in § 390.3(j) (suspended), which lists the provisions of 49 CFR chapter III, subchapter B that apply to freight forwarders that are required to register with the Agency, FMCSA changes paragraph (j)(3) by adding a specific citation to § 390.6.

    FMCSA also adds a new paragraph (l) to § 390.3 (suspended) to clarify that the rules in 49 CFR 386.12(c) and 390.6 are applicable to shippers, receivers, consignees, and transportation intermediaries. Adding these references to § 390.3 (suspended) does not create any new requirements. It simply provides a summary for users of the regulations that apply to them.

    FMCSA corrects § 390.3T(a)(2) by changing the reference from § 386.12(e) to § 386.12(c). This change is necessary because the ELD rule revised § 386.12 and moved the coercion provisions to paragraph (c), effective February 16, 2016 (80 FR 78381, Dec. 16, 2015).

    Section 390.5 (Suspended) and 390.5T Definitions

    FMCSA amends four of the definitions in § 390.5 (suspended) and two of the definitions in § 390.5T, which is currently in effect. First, in the definition for “Conviction” in both §§ 390.5 (suspended) and 390.5T, FMCSA removes the word “prorated” at the end of the definition and replaces it with the word “probated” to correct an error. Originally, FHWA published its revised definition of “Conviction” on October 4, 1988 (53 FR 39050) and it correctly read, “Conviction means . . . regardless of whether or not the penalty is rebated, suspended, or probated.” FMCSA erroneously changed “probated” to “prorated” in an October 2, 2014 technical amendment (79 FR 59451, 59455-56). Second, in the definition of “Covered farm vehicle” in both §§ 390.5 (suspended) and 390.5T, FMCSA changes paragraph (1)(ii) by removing an extraneous and incorrect “a” before “an owner or operator of a farm or ranch.” In § 390.5 (suspended), FMCSA corrects the definitions of “Farm vehicle driver” and “Farmer” by changing the numbering to conform to Office of the Federal Register style. This error does not occur in § 390.5T.

    Section 390.15 Assistance in Investigations and Special Studies

    In § 390.15(b) introductory text, FMCSA deletes a provision that requires motor carriers to maintain accident registers for a period of 1 year from accidents that occurred on or prior to April 29, 2003. It also removes the reference to “April 29, 2003,” the compliance date for the current requirements. FMCSA removes these obsolete provisions to update and clarify the rule.

    Section 390.19T Motor Carrier, Hazardous Material Safety Permit Applicant/Holder, and Intermodal Equipment Provider Identification Reports

    FMCSA corrects the heading of § 390.19T to reflect the heading of § 390.19 as of January 13, 2017, the day before the effective date of the Unified Registration System; Suspension of Effectiveness rulemaking (82 FR 5316, Jan. 17, 2017). FMCSA inadvertently used the same heading for both § 390.19 (suspended) and § 390.19T.

    Section 390.27 Locations of Motor Carrier Safety Service Centers

    FMCSA revises § 390.27 to spell out the abbreviations in the table to help the user, and to change the address of the Eastern Service Center. The Eastern Service Center moved in July 2017, requiring this update.

    Section 390.115 Procedure for Removal From the National Registry of Certified Medical Examiners

    In paragraph (a) of § 390.115, FMCSA adds the mailing address for the Director, Office of Carrier, Driver and Vehicle Safety Standards. In paragraph (d), FMCSA makes amendments to reflect the current title of the Associate Administrator for Policy and to add a mailing address for the Associate Administrator. FMCSA makes these changes to update the regulations and make the mailing addresses easily available for the user.

    L. Part 393 Section 393.60 Glazing in Specified Openings

    In a rule published September 23, 2016 (81 FR 65568), FMCSA allowed the voluntary mounting of vehicle safety technologies on the interior of the windshields of CMVs, including placement within the area that is swept by the windshield wipers. FMCSA reorganizes § 393.60(e)(1)(ii) to clarify that those technologies must always be placed outside the driver's sight lines to the road and to highway signs and signals.

    M. Part 395 Section 395.13 Drivers Declared Out of Service

    In § 395.13(c)(2), FMCSA removes the reference to “form MCS-63,” and changes the title of the form from “Driver-Vehicle Examination Report” to its current title, “Driver/Vehicle Examination Report.” While the form name has remained largely the same, this form number is no longer used internally. FMCSA also makes this change to eliminate any possible confusion with other Federal, State, Canadian, and Mexican inspection forms.

    Appendix A to Subpart B of Part 395—Functional Specifications for All Electronic Logging Devices (ELDs)

    FMCSA changes sections 4.2, ELD-Vehicle Interface, and 4.3, ELD Inputs, of Appendix A to Subpart B of Part 395 by adding references to “the vehicle's databus” and making other changes. In section 4.2(b), FMCSA changes the phrase “vehicle's engine ECM” to read “engine ECM or the vehicle's databus.” In section 4.3.1.2(b), FMCSA changes “must be acquired from the engine ECM” to read “must be acquired from the engine ECM or the vehicle's databus.” In section 4.3.1.3(b)(1), FMCSA changes “engine ECM's odometer message” to read simply “odometer message,” and adds a reference to “engine ECM or the vehicle's databus.” FMCSA amends section 4.3.1.4(b) by revising the phrase “the engine ECM's total engine hours” to read instead “the total engine hours.” Also in that section, FMCSA adds the phrase “on the engine ECM or the vehicle's databus” to clarify how the message is broadcast. Finally, the Agency removes the phrase “from the engine ECM” from section 4.3.1.7. These changes simply clarify the Agency's intent, which was always that the required vehicle parameters be obtained either via the vehicle databus or directly from the engine ECM, as evidenced by the language in section 4.2(b) of the functional specifications (“through the serial or Control Area Network communication protocols supported by the vehicle's engine ECM”) (80 FR 78391, Dec. 16, 2015). The foregoing changes are made in response to a petition for reconsideration of the ELD final rule submitted by the Truck and Engine Manufacturers Association (EMA).3

    3 For information about the Electronic Logging Devices and Hours of Service Supporting Documents final rule, see docket FMCSA-2010-0167, available at https://www.regulations.gov/. The docket contains all the rulemaking documents and petitions pertaining to that rule, including the comments to the proposed rule and the supplemental notice of proposed rulemaking, and the petition for reconsideration submitted by EMA on January 15, 2016.

    Furthermore, FMCSA makes minor changes to sections 4.4, ELD Processing and Calculations, and 4.8, ELD Outputs, of Appendix A to Subpart B of Part 395. These amendments to sections 4.4 and 4.8 do not substantively change the ELD regulations. Rather, they make the technical specifications internally consistent and consistent with the regulatory requirements. These changes are necessary to conform the technical specifications with guidance documents for ELD software developers and frequently-asked-question (FAQ) documents that FMCSA has already published.

    FMCSA has worked during the last year with about 80 ELD software vendors with currently-certified ELD products to help them ensure their products use the programming amendments being made today. Motor carriers, ELD owners, and drivers should not be impacted by these amendments. They are very technical in nature and involve what vendors do behind the scenes relating to ELD computer programming requirements for software's input and output data. If an ELD software vendor needs to make any further updates because of these amendments to a motor carrier's or driver's ELD unit, the ELD software vendor will most likely send the amendments to the ELD unit in a regular software update. Many software vendors will perform the update wirelessly or through the internet, similar to how the public receives software updates from vendors for smartphones, laptops, and handheld global positioning system electronic devices.

    Specifically, FMCSA amends paragraph (b)(9) of section 4.4.5.1.1., Event Checksum Calculation, by changing “<CMV Number>” to read “<CMV Power Unit Number>”. “CMV Number” is not a data element in the rule; the correct term is “CMV Power Unit Number,” which is defined in section 7.4. FMCSA corrects the data element “ELD ID: <ELD Registration ID>” in paragraph (b) of section 4.8.1.3., Information To Be Shown on the Printout and Display at Roadside, to read “ELD ID: <ELD Identifier>”. This data element is an ELD provider assigned value and not the FMCSA-provided ELD registration ID, as depicted in the examples in this section.

    FMCSA corrects section 4.8.2.1.6., ELD Event List for Driver's Certification of Own Records, to read “Driver's Certification/Recertification Actions: <CR>”. This error in “Driver's” was introduced due to the Government Printing Office publication font, which uses a curly apostrophe symbol style rather than a straight apostrophe symbol style. ELD software developer's must use the ANSI INCITS 4-1986 (R2012), American National Standard for Information Systems—Coded Character Sets—7-Bit American National Standard Code for Information Interchange (7-Bit ASCII), approved June 14, 2007. This standard is incorporated by reference in § 395.38(b)(1) and Appendix A to Subpart B of Part 395 in sections 4.8.2.1., ELD Output File Standard, paragraph (b) and section 6, References, paragraph (a)(1). This 7-Bit ASCII Code 39 provides a character and encoding only for a straight apostrophe symbol; it does not recognize or include encoding for a curly apostrophe symbol.

    FMCSA corrects six of the data elements in section 7, Data Elements Dictionary, of Appendix A to Subpart B of Part 395. FMCSA changes section 7.14, ELD Authentication Value, to clarify that manufacturers who use a data length of the industry standard 2,048 characters or larger will be in compliance with the rule. The current data length range of 16-32 was not consistent with the signature generated by a current industry standard certificate. While a certificate from 16-32 characters could be used, it would not be consistent with the surety standards in place today. Today's certificate keys, which determine length of the final output, can consist of up to 16,384 bits. In section 7.19, Engine Hours, FMCSA changes the entry for “Disposition” to include certain scenarios allowed in the rule where this information will not be available. In Table 6, “Event Type” Parameter Coding, in section 7.20, Event Code, FMCSA corrects the event code description for “Driver indication for PC, YM and WT cleared” to read “Driver indication for PC or YM cleared”. While personal moves (PM) or yard moves (YM) are referenced elsewhere in the rule text, WT is not. In both section 7.31, Latitude, and section 7.33, Longitude, the Agency modifies the entries for Data Range, Data Length, Data Format, and Examples to allow for the X, M, and E entries that are identified as allowable in section 4.6.1.4, Positioning Compliance Monitoring. FMCSA changes the entry for Disposition in section 7.43, Vehicle Miles, to include those instances allowed in the rule where this information will not be available.

    N. Part 396 Section 396.17 Periodic Inspection

    In § 396.17(d), FMCSA changes the two cross references to § 396.23(b)(1) to read, instead, § 396.23(a)(1). In a rule published July 22, 2016 (81 FR 47732), FMCSA removed paragraph (a) of § 396.23 and made existing paragraph (b) the new paragraph (a). FMCSA corrects the cross references in § 396.17(d) to reflect that change.

    In paragraph (f) of § 396.17, FMCSA changes the phrase “State government or equivalent jurisdiction” to read “State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, and Mexico.” This change clarifies that the inspection programs of State and certain foreign governments can be used to comply with the inspection requirement and conforms with the language in § 396.23.

    Section 396.23 Equivalent to Periodic Inspection

    FMCSA revises § 396.23 by removing the word “State” and replacing it, where appropriate, with a reference to “government” or “State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico.” This amendment is necessary to clarify that those inspection programs of State and certain foreign governments that are found to be as effective as § 396.17 inspection can be used by motor carriers to comply with the periodic inspection requirement. On September 23, 1991, FMCSA's predecessor agency, FHWA, announced its addition of all Canadian Provinces and the Yukon Territory (56 FR 47982) to the list of programs that are comparable to, or as effective as, the Federal periodic inspection (PI) of CMV requirements contained in the FMCSRs. On March 16, 2016, FMCSA announced its acceptance of the Norma Oficial Mexicana ((NOM) or Official Mexican Standard) as equivalent to the Federal PI of CMVs (81 FR 14195).

    O. Part 397 Section 397.73 Public Information and Reporting Requirements

    FMCSA reorganizes § 397.73(b) and adds a reference to its website in new paragraph (b)(3)(i). This change is necessary to update the procedures for finding information on the National Hazardous Materials Route Registry.

    Section 397.103 Requirements for State Routing Designations

    The Agency adds a reference to its website in § 397.103(c)(3). It also changes paragraph (d) by adding an email address to request the “Guidelines for Selecting Preferred Highway Routes for Highway Route Controlled Quantity Shipments of Radioactive Materials.” These changes help the user by providing updated procedures for addressing State routing designations.

    P. Part 398 Section 398.8 Administration Inspection of Motor Vehicles in Operation

    FMCSA updates § 398.8 to remove form numbers that are no longer in common use and, instead, to provide current titles for those forms. Paragraph (a) is republished to provide context. In § 398.8(b), FMCSA changes the title of Form MCS 63, “Driver-Equipment Compliance Check,” to “Driver/Vehicle Examination Report” to reflect the current title of the inspection report form and removes the reference to the form number. FMCSA changes paragraph (c)(1) by removing the reference to Form MCS-64, instead referring to that form only as “Out of Service Vehicle” sticker. In paragraphs (c)(2), (3), and (4), the Agency removes the references to Form MCS-63 and instead uses “Driver/Vehicle Examination Report.” Throughout paragraph (d), the references to “Form MCS-63” are changed to read “Driver/Vehicle Examination Report.” Because the form numbers are no longer in common use, FMCSA makes these changes to provide a consistent, current reference to the Driver/Vehicle Examination Report and the “Out of Service” sticker. Also, FMCSA wants to avoid the possible confusion caused by other Federal, State, Canadian, and Mexican forms.

    IV. Regulatory Analyses A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

    FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5, dated May 22, 1980; 44 FR 11034, Feb. 26, 1979). This final rule makes changes to correct inaccurate references and citations, improve clarity, and fix errors. None of the changes in this final rule impose material new requirements or increase compliance obligations; therefore, this final rule imposes no new costs and a full regulatory evaluation is unnecessary.

    B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    E.O. 13771 (82 FR 9339, Feb. 3, 2017), Reducing Regulation and Controlling Regulatory Costs, requires that, for “every one new [E.O. 13771 regulatory action] 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.”

    Implementation guidance for E.O. 13771 issued by OMB on April 5, 2017, defines two different types of E.O. 13771 actions: an E.O. 13771 deregulatory action, and an E.O. 13771 regulatory action.4

    4 Executive Office of the President. Office of Management and Budget. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs.” Memorandum M-17-21. April 5, 2017.

    An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” This rulemaking has total costs equal to zero, and therefore is not an E.O. 13771 deregulatory action.

    An E.O. 13771 regulatory action is defined as:

    (i) A significant action as defined in section 3(f) of E.O. 12866 that has been finalized, and that imposes total costs greater than zero; or

    (ii) a significant guidance document (e.g., significant interpretive guidance) reviewed by OIRA under the procedures of E.O. 12866 that has been finalized and that imposes total costs greater than zero.

    The Agency action, in this case a rulemaking, must meet both the significance and the total cost criteria to be considered an E.O. 13771 regulatory action. This rulemaking is not a significant regulatory action as defined in section 3(f) of E.O. 12866, and therefore does not meet the significance criterion for being an E.O. 13771 regulatory action. Consequently, this rulemaking is not an E.O. 13771 regulatory action and no further action under E.O. 13771 is required.

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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 50,000.5 Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), this final rule is not expected to have a significant economic impact on a substantial number of small entities. This final rule makes changes to correct inaccurate references and citations, improve clarity, and fix errors. None of the changes in this final rule impose material new requirements or increase compliance obligations; therefore, the final rule is not expected to have a significant economic impact on a substantial number of small entities. Consequently, I certify the action will not have a significant economic impact on a substantial number of small entities.

    5 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see National Archives at http://www.archives.gov/federal-register/laws.

    D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, David Miller, listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

    Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

    E. Unfunded Mandates Reform Act of 1995

    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 $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any 1 year. This final rule will not result in such an expenditure.

    F. Paperwork Reduction Act (Collection of Information)

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulations. FMCSA determined that no new information collection requirements are associated with this final rule, nor are there any revisions to existing, approved collections of information. Therefore, the PRA does not apply to this final rule.

    G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “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.” FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

    H. E.O. 12988 (Civil Justice Reform)

    This final rule 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.

    I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not disproportionately affect children.

    J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

    K. Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108- 447, Division H, Title I, 118 Stat. 2809, 3268, Dec. 8, 2004) requires DOT and certain other Federal agencies to conduct a privacy impact assessment of each rule that will affect the privacy of individuals. Because this final rule will not affect the privacy of individuals, FMCSA did not conduct a separate privacy impact assessment.

    L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

    M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

    N. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 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.

    O. National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

    P. Environment (NEPA, CAA, Environmental Justice)

    FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1(69 FR 9680, Mar. 1, 2004), Appendix 2, paragraph 6(b). This Categorical Exclusion (CE) addresses minor corrections such as those found in this rulemaking; therefore, preparation of an environmental assessment or environmental impact statement is not necessary. The CE determination is available for inspection or copying in the Federal eRulemaking Portal: http://www.regulations.gov.

    FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

    Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this final rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this final rule, nor is there any collective environmental impact that would result from its promulgation.

    List of Subjects 49 CFR Part 350

    Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 360

    Administrative practice and procedure, Brokers, Buses, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    49 CFR Part 365

    Administrative practice and procedure, Brokers, Buses, Freight forwarders, Maritime carriers, Mexico, Motor carriers, Moving of household goods.

    49 CFR Part 373

    Buses, Freight, Freight forwarders, Motor carriers, Moving of household goods.

    49 CFR Part 380

    Administrative practice and procedure, Highway safety, Motor carriers, Reporting and recordkeeping requirements.

    49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation.

    49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    49 CFR Part 385

    Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 387

    Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 393

    Highway safety, Motor carriers, Motor vehicle safety.

    49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping requirements.

    49 CFR Part 396

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 397

    Administrative practice and procedure, Hazardous materials transportation, Highway safety, Intergovernmental relations, Motor carriers, Parking, Radioactive materials, Reporting and recordkeeping requirements, Rubber and rubber products.

    49 CFR Part 398

    Highway safety, Migrant labor, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, FMCSA amends 49 CFR chapter III as set forth below:

    PART 350—MOTOR CARRIER SAFETY ASSISTANCE PROGRAM AND HIGH PRIORITY PROGRAM 1. The authority citation for part 350 is revised to read as follows: Authority:

    49 U.S.C. 13902, 31101-31104, 31108, 31136, 31141, 31161, 31310-31311, 31502; and 49 CFR 1.87.

    2. Amend § 350.105 by adding a definition for “New Entrant Safety Audits” in alphabetical order to read as follows:
    § 350.105 What definitions are used in this part?

    New entrant safety audits means the safety audits of interstate, and, at the State's discretion, intrastate, new entrant motor carriers under 49 U.S.C. 31144(g) that are required as a condition of MCSAP eligibility under § 350.201(z).

    § 350.335 [Amended]
    3. Amend § 350.335(a) introductory text by removing the reference to “49 CFR 320.215” and adding in its place a reference to “49 CFR 350.215”. PART 360—FEES FOR MOTOR CARRIER REGISTRATION AND INSURANCE 4. The authority citation for part 360 continues to read as follows: Authority:

    31 U.S.C. 9701; 49 U.S.C. 13908; and 49 CFR 1.87.

    5. Amend § 360.1T by revising paragraphs (a) and (d)(2) to read as follows:
    § 360.1T Fees for registration-related services.

    (a) Certificate of the Director, Office of Registration and Safety Information (MC-RS), as to the authenticity of documents, $9.00;

    (d) * * *

    (2) The fee for computer searches will be set at the current rate for computer service. Information on those charges can be obtained from the Office of Registration and Safety Information (MC-RS).

    6. Amend § 360.3T by revising paragraphs (a)(2) introductory text, (a)(2)(iii) introductory text, and (e)(2)(i) and (iii), to read as follows:
    § 360.3T Filing fees.

    (a)* * *

    (2) Billing account procedure. A written request must be submitted to the Office of Registration and Safety Information (MC-RS) to establish an insurance service fee account.

    (iii) An account holder who files a petition in bankruptcy or who is the subject of a bankruptcy proceeding must provide the following information to the Office of Registration and Safety Information (MC-RS):

    (e) * * *

    (2) * * *

    (i) When to request. At the time that a filing is submitted to the Federal Motor Carrier Safety Administration the applicant may request a waiver or reduction of the fee prescribed in this part. Such request should be addressed to the Director, Office of Registration and Safety Information (MC-RS).

    (iii) Federal Motor Carrier Safety Administration action. The Director, Office of Registration and Safety Information (MC-RS), will notify the applicant of the decision to grant or deny the request for waiver or reduction.

    PART 365—RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY 7. The authority citation for part 365 continues to read as follows: Authority:

    5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-13906, 13908, 14708, 31133, 31138, and 31144; 49 CFR 1.87.

    8. Amend § 365.403T by revising paragraph (a) to read as follows:
    § 365.403T Definitions.

    (a) Transfer. (1) Transfers include all transactions (i.e., the sale or lease of interstate operating rights, or the merger of two or more carriers or a carrier into a noncarrier) subject to 49 U.S.C. 10926, as well as the sale of property brokers' licenses under 49 U.S.C. 10321.

    (2) The execution of a chattel mortgage, deed of trust, or other similar document does not constitute a transfer or require FMCSA's approval. However, a foreclosure for the purpose of transferring an operating right to satisfy a judgment or claim against the record holder may not be effected without approval of FMCSA.

    PART 373—RECEIPTS AND BILLS 9. The authority citation for part 373 continues to read as follows: Authority:

    49 U.S.C. 13301, 13531 and 14706; and 49 CFR 1.87.

    10. Amend § 373.103 as follows: a. Withdraw the amendments to § 373.103 published April 16, 2018, at 83 FR 16224. b. Revise § 373.103 to read as follows:
    § 373.103 For-hire, non-exempt expense bills.

    (a) Property. (1) Every for-hire, non-exempt motor carrier of property shall issue a freight or expense bill for each shipment transported containing the following information:

    (i) Names of consignor and consignee (except on a reconsigned shipment, not the name of the original consignor).

    (ii) Date of shipment.

    (iii) Origin and destination points (except on a reconsigned shipment, not the original shipping point unless the final consignee pays the charges from that point).

    (iv) Number of packages.

    (v) Description of freight.

    (vi) Weight, volume, or measurement of freight (if applicable to the rating of the freight).

    (vii) Exact rate(s) assessed.

    (viii) Total charges due, including the nature and amount of any charges for special service and the points at which such service was rendered.

    (ix) Route of movement and name of each carrier participating in the transportation.

    (x) Transfer point(s) through which shipment moved.

    (xi) Address where remittance must be made or address of bill issuer's principal place of business.

    (2) The shipper or receiver owing the charges shall be given the freight or expense bill and the carrier shall keep a copy as prescribed at 49 CFR part 379. If the bill is electronically transmitted (when agreed to by the carrier and payor), a receipted copy shall be given to the payor upon payment.

    (b) Charter transportation of passenger service. (1) Every for-hire, non-exempt motor carrier providing charter transportation of passenger service shall issue an expense bill containing the following information:

    (i) Serial number, consisting of one of a series of consecutive numbers assigned in advance and imprinted on the bill.

    (ii) Name of carrier.

    (iii) Names of payor and organization, if any, for which transportation is performed.

    (iv) Date(s) transportation was performed.

    (v) Origin, destination, and general routing of trip.

    (vi) Identification and seating capacity of each vehicle used.

    (vii) Number of persons transported.

    (viii) Mileage upon which charges are based, including any deadhead mileage, separately noted.

    (ix) Applicable rates per mile, hour, day, or other unit.

    (x) Itemized charges for transportation, including special services and fees.

    (xi) Total charges assessed and collected.

    (2) The carrier shall keep a copy of all expense bills issued for the period prescribed at 49 CFR part 379. If any expense bill is spoiled, voided, or unused for any reason, a copy or written record of its disposition shall be retained for a like period.

    PART 380—SPECIAL TRAINING REQUIREMENTS 11. The authority citation for part 380 is revised to read as follows: Authority:

    49 U.S.C. 31133, 31136, 31305, 31307, 31308, and 31502; sec. 4007(a) and (b) of Pub. L. 102-240, 105 Stat. 1914, 2151; sec. 32304 of Pub. L. 112-141, 126 Stat. 405, 791; and 49 CFR 1.87.

    § 380.107 [Amended]
    12. Amend § 380.107(a) by removing the phrase “the appendix to this part” and adding in its place the phrase “Appendix F to this part”.
    § 380.109 [Amended]
    13. Amend § 380.109 as follows: a. In paragraphs (a)(1), (a)(5), (a)(6), and (a)(7), remove the phrase “the appendix to this part” wherever it occurs and add in its place the phrase “Appendix F to this part”; and b. Remove paragraph (d).
    § 380.201 [Amended]
    14. Amend § 380.201 as follows: a. In paragraph (a) introductory text, remove the phrase “the appendix to this part” and add in its place the phrase “Appendix F to this part”; and b. In paragraph (b), remove the phrase “the appendix to this part” and add in its place the phrase “Appendix F to this part”.
    § 380.203 [Amended]
    15. Amend § 380.203(b) by removing the phrase “the appendix to this part” and adding in its place the phrase “Appendix F to this part”.
    § 380.205 [Amended]
    16. Amend § 380.205(b) by removing the phrase “the appendix to this part” and adding in its place the phrase “Appendix F to this part”.
    § 380.303 [Amended]
    17. Amend § 380.303(a) by removing the phrase “the appendix to this part” and adding in its place the phrase “Appendix F to this part”. Subpart E—Entry-Level Driver Training Requirements Before February 7, 2020 18. Revise the heading of subpart E to read as set forth above. 19. Revise § 380.605 to read as follows:
    § 380.605 Definitions.

    The definitions in parts 383 and 384 of this subchapter apply to this subpart, except as stated below. As used in this subpart:

    Behind-the-wheel (BTW) instructor means an individual who provides BTW training involving the actual operation of a CMV by an entry-level driver on a range or a public road and meets one of these qualifications:

    (1) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience driving a CMV requiring a CDL of the same or higher class and/or the same endorsement and meets all applicable State qualification requirements for CMV instructors; or

    (2) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience as a BTW CMV instructor and meets all applicable State qualification requirements for CMV instructors.

    Exception applicable to paragraphs (1) and (2) of this definition: A BTW instructor who provides training solely on a range which is not a public road is not required to hold a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided, as long as the instructor previously held a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided, and complies with the other requirements set forth in paragraphs (1) or (2) of this definition.

    (3) If an instructor's CDL has been cancelled, suspended, or revoked due to any of the disqualifying offenses identified in § 383.51 of this subchapter, the instructor is prohibited from engaging in BTW instruction for 2 years following the date his or her CDL is reinstated.

    Behind-the-wheel (BTW) public road training means training provided by a BTW instructor when an entry-level driver has actual control of the power unit during a driving lesson conducted on a public road. BTW public road training does not include the time that an entry-level driver spends observing the operation of a CMV when he or she is not in control of the vehicle.

    Behind-the-wheel (BTW) range training means training provided by a BTW instructor when an entry-level driver has actual control of the power unit during a driving lesson conducted on a range. BTW range training does not include time an entry-level driver spends observing the operation of a CMV when he or she is not in control of the vehicle.

    Entry-level driver means an individual who must complete the CDL skills test requirements under § 383.71 of this subchapter prior to receiving a CDL for the first time, upgrading to a Class A or Class B CDL, or obtaining a hazardous materials, passenger, or school bus endorsement for the first time. This definition does not include individuals for whom States waive the CDL skills test under § 383.77 or individuals seeking to remove a restriction in accordance with § 383.135(b)(7) of this subchapter.

    Entry-level driver training means training an entry-level driver receives from an entity listed on FMCSA's Training Provider Registry prior to:

    (1) Taking the CDL skills test required to receive the Class A or Class B CDL for the first time;

    (2) Taking the CDL skills test required to upgrade to a Class A or Class B CDL; or

    (3) Taking the CDL skills test required to obtain a passenger and/or school bus endorsement for the first time or the CDL knowledge test required to obtain a hazardous materials endorsement for the first time.

    Range means an area that must be free of obstructions, enables the driver to maneuver safely and free from interference from other vehicles and hazards, and has adequate sight lines.

    Theory instruction means knowledge instruction on the operation of a CMV and related matters provided by a theory instructor through lectures, demonstrations, audio-visual presentations, computer-based instruction, driving simulation devices, online training, or similar means.

    Theory instructor means an individual who provides knowledge instruction on the operation of a CMV and meets one of these qualifications:

    (1) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience driving a CMV requiring a CDL of the same (or higher) class and/or the same endorsement and meets all applicable State qualification requirements for CMV instructors; or

    (2) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience as a BTW CMV instructor and meets all applicable State qualification requirements for CMV instructors.

    Exceptions applicable to paragraphs (1) and (2) of this definition:

    1. An instructor is not required to hold a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided, if the instructor previously held a CDL of the same (or higher) class and complies with the other requirements set forth in paragraphs (1) or (2) of this definition.

    2. Training providers offering online content exclusively are not required to meet State qualification requirements for theory instructors.

    (3) If an instructor's CDL has been cancelled, suspended, or revoked due to any of the disqualifying offenses identified in § 383.51 of this subchapter, the instructor is prohibited from engaging in theory instruction for 2 years following the date his or her CDL is reinstated.

    Training provider means an entity that is listed on the FMCSA Training Provider Registry, as required by subpart G of this part. Training providers include, but are not limited to, training schools, educational institutions, rural electric cooperatives, motor carriers, State/local governments, school districts, joint labor management programs, owner-operators, and individuals.

    20. Revise § 380.713 to read as follows:
    § 380.713 Instructor requirements.

    (a) Theory training providers must utilize instructors who are theory instructors as defined in § 380.605.

    (b) BTW training providers must utilize instructors who are BTW instructors as defined in § 380.605.

    Appendix A to Part 380 [Amended] 21. Amend Appendix A to Part 380 as follows: a. In the second sentence of Unit A1.2.7, remove the word “provide” and add in its place the word “provider”; and b. In the first sentence of Unit A1.5.6, remove the word “in” following the words “driver-trainees.” Appendix B to Part 380 [Amended] 22. Amend Appendix B to Part 380 by removing the heading that reads “Unit 1.3 Pre- and Post-Trip Inspections” and adding in its place a heading that reads “Unit B1.1.3 Pre- and Post-Trip Inspections”. PART 382—CONTROLLED SUBSTANCES ALCOHOL USE AND TESTING 23. The authority citation for part 382 continues to read as follows: Authority:

    49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

    § 382.403 [Amended]
    24. Amend § 382.403(e) by adding within the parentheses the phrase “as defined in § 382.107” after the phrase “Designated employer representative” in the second sentence. PART 383—COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 25. The authority citation for part 383 continues to read as follows: Authority:

    49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126 stat. 405, 830; and 49 CFR 1.87.

    § 383.5 [Amended]
    26. Amend the definition of “Conviction” in § 383.5 by removing the word “prorated” and adding in its place the word “probated”. 27. Revise § 383.23(b)(1), including footnote 1, to read as follows:
    § 383.23 Commercial driver's license.

    (b) Exception. (1) If a CMV operator is not domiciled in a foreign jurisdiction that the Administrator has determined tests drivers and issues CDLs in accordance with, or under standards similar to, the standards contained in subparts F, G, and H of this part,1 the person may obtain a Non-domiciled CLP or Non-domiciled CDL from a State that does comply with the testing and licensing standards contained in such subparts F, G, and H of this part, so long as that person meets the requirements of § 383.71(f).

    1 Effective December 29, 1988, the Administrator determined that commercial driver's licenses issued by Canadian Provinces and Territories in conformity with the Canadian National Safety Code are in accordance with the standards of this part. Effective November 21, 1991, and as amended on January 19, 2017, the Administrator determined that the new Licencias Federales de Conductor issued by the United Mexican States are in accordance with the standards of this part. Therefore, under the single license provision of § 383.21, a driver holding a commercial driver's license issued under the Canadian National Safety Code or a new Licencia Federal de Conductor issued by Mexico is prohibited from obtaining a non-domiciled CDL, or any other type of driver's license, from a State or other jurisdiction in the United States.

    § 383.73 [Amended]
    28. Amend § 383.73(b)(8) by removing the phrase “§§ 383.71(b)(1)(i)§ 383.71(b)(8) and 383.141” and adding in its place the phrase “§§ 383.71(b)(8) and 383.141”. PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM 29. The authority citation for part 384 is revised to read as follows: Authority:

    49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.

    30. Amend § 384.301 by adding paragraph (k) to read as follows:
    § 384.301 Substantial compliance—general requirements.

    (k) A State must come into substantial compliance with the requirements of subpart B of this part and part 383 of this chapter in effect as of February 6, 2017, but not later than February 7, 2020.

    PART 385—SAFETY FITNESS PROCEDURES 31. The authority citation for part 385 continues to read as follows: Authority:

    49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 13908, 31136, 31144, 31148, 31151, and 31502; Sec. 350 of Pub. L. 107-87; and 49 CFR 1.87.

    32. Amend § 385.203 by revising paragraph (c) to read as follows:
    § 385.203 What are the requirements to obtain and maintain certification?

    (c) The requirements of paragraphs (a) and (b) of this section for training, performance and maintenance of certification/qualification, which are described on the FMCSA website (www.fmcsa.dot.gov), are also available in hard copy from the Federal Motor Carrier Safety Administration, Professional Development and Training Division (MC-MHT), 1310 N. Courthouse Road, Suite 600, Arlington, VA 22201.

    33. Amend Appendix B to Part 385, section VII. List of Acute and Critical Regulations as follows: a. By removing the entries for § 382.309(a) and § 382.309(b); b. By adding an entry for § 382.309 in numerical order; c. By removing the entries for § 382.605(c)(1) and § 382.605(c)(2)(ii); d. By adding an entry for § 382.605 in numerical order; e. By removing the entry for § 395.8(e)(2); f. By adding an entry for § 395.8(e)(2) or (3) in numerical order; g. By removing the entry for § 172.802(b); h. By removing the entry for § 173.421(a); and i. By adding an entry for § 173.421 in numerical order.

    The additions read as follows:

    Appendix B to Part 385 [Amended]
    § 382.309 Using a driver who has not undergone return-to-duty testing with a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 in accordance with 49 CFR 40.305 (acute).
    § 382.605 Failing to subject a driver who has been identified as needing assistance to at least six unannounced follow-up drug and/or alcohol tests in the first 12 months following the driver's return-to-duty in accordance with 49 CFR 40.307 (critical).
    § 395.8(e)(2) or (3) Disabling, deactivating, disengaging, jamming, or otherwise blocking or degrading a signal transmission or reception; tampering with an automatic on-board recording device or ELD; or permitting or requiring another person to engage in such activity (acute).
    § 173.421 Accepting for transportation or transporting a Class 7 (radioactive) material described, marked, and packaged as a limited quantity when the radiation level on the surface of the package exceeds 0.005mSv/hour (0.5 mrem/hour) (acute).
    PART 387—MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR CARRIERS 34. The authority citation for part 387 is revised to read as follows: Authority:

    49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138, and 31139; sec. 204(a), Pub. L. 104-88, 109 Stat. 803, 941; and 49 CFR 1.87.

    § 387.3 [Amended]
    35. Amend § 387.3(c) by removing the word “part” and adding in its place the word “subpart” wherever it appears. 36. Amend § 387.7 by revising paragraph (b)(3) to read as follows:
    § 387.7 Financial responsibility required.

    (b) * * *

    (3) Exception. (i) A Mexico-domiciled motor carrier operating solely in municipalities in the United States on the U.S.-Mexico international border or within the commercial zones of such municipalities with a Certificate of Registration issued under part 368 may meet the minimum financial responsibility requirements of this subpart by obtaining insurance coverage, in the required amounts, for periods of 24 hours or longer, from insurers that meet the requirements of § 387.11.

    (ii) A Mexican motor carrier so insured must have available for inspection in each of its vehicles copies of the following documents:

    (A) The Certificate of Registration;

    (B) The required insurance endorsement (Form MCS-90); and

    (C) An insurance identification card, binder, or other document issued by an authorized insurer which specifies both the effective date and the expiration date of the temporary insurance coverage authorized by this exception.

    (iii) Mexican motor carriers insured under this exception are also exempt from the notice of cancellation requirements stated on Form MCS-90.

    37. Amend § 387.33 as follows: a. Lift the suspension of the section; b. Revise paragraph (a); and c. Suspend § 387.33 indefinitely.

    The revision reads as follows:

    § 387.33 Financial responsibility, minimum levels.

    (a) General limits. Except as provided in § 387.27(b), the minimum levels of financial responsibility referred to in § 387.31 are prescribed as follows:

    SCHEDULE OF LIMITS Public Liability

    For-hire motor carriers of passengers operating in interstate or foreign commerce.

    Vehicle seating capacity Minimum limits (1) Any vehicle with a seating capacity of 16 passengers or more, including the driver $5,000,000 (2) Any vehicle with a seating capacity of 15 passengers or less, including the driver 1,500,000
    38. Revise § 387.33T to read as follows:
    § 387.33T Financial responsibility, minimum levels.

    Except as provided in § 387.27(b), the minimum levels of financial responsibility referred to in § 387.31 are hereby prescribed as follows:

    SCHEDULE OF LIMITS Public Liability

    For-hire motor carriers of passengers operating in interstate or foreign commerce.

    Vehicle seating capacity Minimum limits (a) Any vehicle with a seating capacity of 16 passengers or more, including the driver $5,000,000 (b) Any vehicle with a seating capacity of 15 passengers or less, including the driver 1,500,000
    39. Amend § 387.301 as follows: a. Lift the suspension of the section; b. Amend paragraph (b) by revising the last sentence of the paragraph; and c. Suspend § 387.301 indefinitely.

    The revision reads as follows:

    § 387.301 Surety bond, certificate of insurance, or other securities.

    (b) * * * The terms “household goods motor carrier” and “individual shipper” are defined in § 375.103 of this subchapter.

    40. Amend § 387.301T by revising the last sentence of paragraph (b) to read as follows:
    § 387.301T Surety bond, certificate of insurance, or other securities.

    (b) * * * The terms “household goods motor carrier” and “individual shipper” are defined in § 375.103 of this subchapter.

    § 387.303 [Amended]
    41. Amend § 387.303 as follows: a. Lift the suspension of the section; b. Redesignate the undesignated paragraph following (b)(4)(iii) as paragraph (b)(5); and c. Suspend § 387.303 indefinitely.
    § 387.303T [Amended]
    42. Amend § 387.303T by redesignating the undesignated paragraph following (b)(4)(iii) as paragraph (b)(5).
    § 387.313 [Amended]
    43. Amend § 387.313 as follows: a. Lift the suspension of the section; b. Redesignate paragraphs (a)(6)(1) and (a)(6)(2) as paragraphs (a)(6)(i) and (a)(6)(ii), respectively; and c. Suspend § 387.313 indefinitely. PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 44. The authority citation for part 390 is revised to read as follows: Authority:

    49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; secs. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d), 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs. 5518, 5524, Pub. L. 114-94, 129 Stat. 1312, 1558, 1560; and 49 CFR 1.87.

    45. Amend § 390.3 as follows: a. Lift the suspension of the section; b. Revise paragraphs (i)(4) and (j)(3); c. Add paragraph (l); and d. Suspend § 390.3 indefinitely.

    The revision and addition read as follows:

    § 390.3 General applicability.

    (i) * * *

    (4) Section 390.6, prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce to violate certain safety regulations, and subpart E of this part, Unified Registration System.

    (j) * * *

    (3) Section 390.6, prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce to violate certain safety regulations, and subpart E of this part, Unified Registration System.

    (l) Shippers, receivers, consignees, and transportation intermediaries. The rules in 49 CFR 386.12(c) and 390.6 prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce to violate certain safety regulations are applicable to shippers, receivers, and transportation intermediaries.

    § 390.3T [Amended]
    46. Amend § 390.3T(a)(2) introductory text by removing the phrase “rules in 49 CFR 386.12(e) and 390.6” and adding in its place the phrase “rules in 49 CFR 386.12(c) and 390.6”. 47. Amend § 390.5 as follows: a. Lift the suspension of the section; b. Revise the definition of “Conviction”; c. Amend the definition of “Covered farm vehicle” by revising paragraph (1)(ii); d. Revise the definitions of “Farm vehicle driver,” and “Farmer”; and e. Suspend § 390.5 indefinitely.

    The revisions read as follows:

    § 390.5 Definitions.

    Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.

    Covered farm vehicle

    (1) * * *

    (ii) Operated by the owner or operator of a farm or ranch, or an employee or family member of an owner or operator of a farm or ranch;

    Farm vehicle driver means a person who drives only a commercial motor vehicle that is—

    (1) Controlled and operated by a farmer as a private motor carrier of property;

    (2) Being used to transport either—

    (i) Agricultural products, or

    (ii) Farm machinery, farm supplies, or both, to or from a farm;

    (3) Not being used in the operation of a for-hire motor carrier;

    (4) Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with § 177.823 of this subtitle; and

    (5) Being used within 150 air-miles of the farmer's farm.

    Farmer means any person who operates a farm or is directly involved in the cultivation of land, crops, or livestock which—

    (1) Are owned by that person; or

    (2) Are under the direct control of that person.

    48. Amend § 390.5T as follows: a. Revise the definition of “Conviction”; and b. Amend the definition of “Covered farm vehicle” by revising paragraph (1)(ii).

    The revisions read as follows:

    § 390.5T Definitions.

    Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.

    Covered farm vehicle

    (1) * * *

    (ii) Operated by the owner or operator of a farm or ranch, or an employee or family member of an owner or operator of a farm or ranch;

    49. Revise § 390.15(b) introductory text to read as follows:
    § 390.15 Assistance in investigations and special studies.

    (b) Motor carriers must maintain an accident register for 3 years after the date of each accident. Information placed in the accident register must contain at least the following:

    50. Amend § 390.19T by revising the section heading to read as follows:
    § 390.19T Motor carrier, hazardous material safety permit applicant/holder, and intermodal equipment provider identification reports.
    51. Revise § 390.27 to read as follows:
    § 390.27 Locations of motor carrier safety service centers. Service center Territory included Location of office Eastern Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, United States Virgin Islands, Vermont, Virginia, West Virginia 31 Hopkins Plaza, Suite 800, Baltimore, Maryland 21201. Midwestern Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Ohio, Wisconsin 4749 Lincoln Mall Drive, Suite 300A, Matteson, Illinois 60443. Southern Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee 1800 Century Boulevard, Suite 1700, Atlanta, Georgia 30345-3220. Western Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Mariana Islands, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas, Utah, Washington, Wyoming 12600 West Colfax Avenue, Suite B-300, Lakewood, Colorado 80215. Note 1: Canadian carriers—for information regarding proper service center, contact an FMCSA division (State) office in Alaska, Maine, Michigan, Montana, New York, North Dakota, Vermont, or Washington. Note 2: Mexican carriers are handled through the four southern border divisions and the Western Service Center. For information regarding the proper service center, contact an FMCSA division (State) office in Arizona, California, New Mexico, or Texas.
    52. Amend § 390.115 as follows: a. Republish the heading and revise the first sentence of paragraph (a); and b. Revise paragraph (d) introductory text.

    The revisions read as follows:

    § 390.115 Procedure for removal from the National Registry of Certified Medical Examiners.

    (a) Voluntary removal. To be voluntarily removed from the National Registry of Certified Medical Examiners, a medical examiner must submit a request to the FMCSA Director, Office of Carrier, Driver and Vehicle Safety Standards, 1200 New Jersey Ave. SE, Washington, DC 20590. * * *

    (d) Request for administrative review. If a person has been removed from the National Registry of Certified Medical Examiners under paragraph (c)(1)(iii), (c)(2)(ii), or (e) of this section, that person may request an administrative review no later than 30 days after the date the removal becomes effective. The request must be submitted in writing to the FMCSA Associate Administrator for Policy, 1200 New Jersey Ave. SE, Washington, DC 20590. The request must explain the error(s) committed in removing the medical examiner from the National Registry of Certified Medical Examiners, and include a list of all factual, legal, and procedural issues in dispute, and any supporting information or documents.

    PART 393—PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION 53. The authority citation for part 393 continues to read as follows: Authority:

    49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5301 and 5524 of Pub. L. 114-94, 129 Stat. 1312, 1543, 1560; and 49 CFR 1.87.

    54. Amend § 393.60 by revising paragraph (e)(1)(ii) to read as follows:
    § 393.60 Glazing in specified openings.

    (e) * * *

    (1) * * *

    (ii) Paragraph (e)(1)(i) of this section does not apply to vehicle safety technologies, as defined in § 393.5, that are mounted on the interior of a windshield. Devices with vehicle safety technologies must be mounted outside the driver's sight lines to the road and to highway signs and signals, and:

    (A) Not more than 100 mm (4 inches) below the upper edge of the area swept by the windshield wipers; or

    (B) Not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers.

    PART 395—HOURS OF SERVICE OF DRIVERS 55. The authority citation for part 395 continues to read as follows: Authority:

    49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5206(b) of Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.

    56. Amend § 395.13 by revising paragraph (c)(2) to read as follows:
    § 395.13 Drivers declared out of service.

    (c) * * *

    (2) A motor carrier shall complete the “Motor Carrier Certification of Action Taken” portion of the form “Driver/Vehicle Examination Report” and deliver the copy of the form either personally or by mail to the Division Administrator or State Director Federal Motor Carrier Safety Administration, at the address specified upon the form within 15 days following the date of examination. If the motor carrier mails the form, delivery is made on the date it is postmarked.

    57. Amend Appendix A to Subpart B of Part 395 as follows: a. Revise section 4.2(b); b. Revise section 4.3.1.2(b); c. Revise section 4.3.1.3(b)(1); d. Revise section 4.3.1.4(b); e. Revise section 4.3.1.7; f. Revise section 4.4.5.1.1.(b)(9); g. In section 4.8.1.3.(b), remove the phrase “ELD ID: [ELD Registration ID]” and add in its place the phrase “ELD ID: [ELD Identifier]”; h. In section 4.8.2.1.6., remove the phrase “Driver's Certification/Recertification Actions: [CR]” and add in its place the phrase “Driver's Certification/Recertification Actions: [CR]”; i. Revise section 7.14; j. Amend section 7.19 by revising the entry for “Disposition”; k. In section 7.20, revise table 6; l. Revise section 7.31; m. Revise section 7.33; and n. Amend section 7.43 by revising the entry for “Disposition”.

    The revised text reads as follows:

    Appendix A to Subpart B of Part 395—Functional Specifications for All Electronic Logging Devices (ELDs) 4. Functional Requirements 4.2 * * *

    (b) An ELD used while operating a CMV that is a model year 2000 or later model year, as indicated by the vehicle identification number (VIN), that has an engine electronic control module (ECM) must establish a link to the engine ECM when the CMV's engine is powered and receive automatically the engine's power status, vehicle's motion status, miles driven value, and engine hours value through the serial or Control Area Network communication protocols supported by the engine ECM or the vehicle's databus. If the vehicle does not have an ECM, an ELD may use alternative sources to obtain or estimate these vehicle parameters with the listed accuracy requirements under section 4.3.1 of this appendix.

    4.3.1.2 * * *

    (b) If an ELD is required to have a link to the vehicle's engine ECM, vehicle speed information must be acquired from the engine ECM or the vehicle's databus. Otherwise, vehicle speed information must be acquired using an independent source apart from the positioning services described under section 4.3.1.6 of this appendix and must be accurate within ±3 miles per hour of the CMV's true ground speed for purposes of determining the in-motion state for the CMV.

    4.3.1.3 * * *

    (b) * * *

    (1) The ELD must monitor the odometer message broadcast on the engine ECM or the vehicle's databus and use it to log total vehicle miles information; and

    4.3.1.4 * * *

    (b) If an ELD is required to have a link to the vehicle's engine ECM, the ELD must monitor the total engine hours message broadcast on the engine ECM or the vehicle's databus and use it to log total engine hours information. Otherwise, engine hours must be obtained or estimated from a source that monitors the ignition power of the CMV and must be accurate within ±0.1 hour of the engine's total operation within a given ignition power on cycle.

    4.3.1.7. CMV VIN

    The vehicle identification number (VIN) for the power unit of a CMV must be automatically obtained and recorded if it is available on the vehicle databus.

    4.4.5.1.1 Event Checksum Calculation

    (b)

    (9) <CMV Power Unit Number>”, and

    7. * * * 7.14. ELD Authentication Value

    Description: An alphanumeric value that is unique to an ELD and verifies the authenticity of the given ELD.

    Purpose: Provides ability to cross-check the authenticity of an ELD used in the recording of a driver's records during inspections.

    Source: ELD provider-assigned value; includes a certificate component and a hashed component; necessary information related to authentication keys and hash procedures disclosed by the registered ELD provider during the online ELD certification process for independent verification by FMCSA systems. For example, an ELD Authentication Value could be generated by creating a string that concatenates a predetermined selection of values that will be included in the ELD Output File, signing that string (using the ELD private key and a predetermined hash algorithm), then using a binary-to-text encoding algorithm to encode the signature into alphanumeric characters.

    Used in: ELD outputs.

    Data Type: Calculated from the authentication ELD provider's private key not provided to FMCSA but corresponding to the ELD provider's public key certificate and calculation procedure privately distributed by the ELD provider to FMCSA during the ELD registration process.

    Data Range: Alphanumeric combination.

    Data Length: Greater than 16 characters.

    Data Format: <CCCC. . . . . . . . .CCCC>.

    Disposition: Mandatory.

    Example: [bGthamRrZmpha3NkamZsa2pzZGxma2phc2xka2Y7ajtza25rbCBucms7Y2 . . . RuZHNudm5hc21kbnZBU0RGS0xKQVNMS0RKTEs7QVNKRDtGTEtBSlNERktMSkFEU0w7S1NESkZMSw==].

    7.19. * * *

    Disposition: Mandatory for any event whose origin is the ELD or the unidentified driver profile. For events created by the driver or another authenticated user when engine hours are not available and cannot accurately be determined this field can be blank.

    7.20 * * * ER17MY18.000 7.31. Latitude

    Description: An angular distance in degrees north and south of the equator.

    Purpose: In combination with the variable “Longitude”, this parameter stamps records requiring a position attribute with a reference point on the face of the earth.

    Source: ELD's position measurement.

    Used in: ELD events; ELD outputs.

    Data Type: Latitude and Longitude must be automatically captured by the ELD.

    Data Range: X, M, E or −90.00 to 90.00 in decimal degrees (two decimal point resolution) in records using conventional positioning precision; −90.0 to 90.0 in decimal degrees (single decimal point resolution) in records using reduced positioning precision when allowed; latitudes north of the equator must be specified by the absence of a minus sign (−) preceding the digits designating degrees; latitudes south of the Equator must be designated by a minus sign (−) preceding the digits designating degrees.

    Data Length: 1, or 3 to 6 characters.

    Data Format: <C> or First character: [<‘-’> or <{blank}>]; then [<C> or <CC>]; then <‘.’>; then [<C> or <CC>].

    Disposition: Mandatory.

    Examples: [X], [M], [E], [−15.68], [38.89], [5.07], [−6.11], [−15.7], [38.9], [5.1], [−6.1].

    7.33. Longitude

    Description: An angular distance in degrees measured on a circle of reference with respect to the zero (or prime) meridian; The prime meridian runs through Greenwich, England.

    Purpose: In combination with the variable “Latitude”, this parameter stamps records requiring a position attribute with a reference point on the face of the earth.

    Source: ELD's position measurement.

    Used in: ELD events; ELD outputs.

    Data Type: Latitude and Longitude must be automatically captured by the ELD.

    Data Range: X, M, E or −179.99 to 180.00 in decimal degrees (two decimal point resolution) in records using conventional positioning precision; −179.9 to 180.0 in decimal degrees (single decimal point resolution) in records using reduced positioning precision when allowed; longitudes east of the prime meridian must be specified by the absence of a minus sign (−) preceding the digits designating degrees of longitude; longitudes west of the prime meridian must be designated by minus sign (−) preceding the digits designating degrees.

    Data Length: 1, or 3 to 7 characters.

    Data Format: <C> or First character: [<‘-’> or <{blank}>]; then [<C>, <CC> or <CCC>]; then <‘.’>; then [<C> or <CC>].

    Disposition: Mandatory.

    Examples: [X], [M], [E], [−157.81], [−77.03], [9.05], [−0.15], [−157.8], [−77.0], [9.1], [−0.2].

    7.43. * * *

    Disposition: Mandatory for any event whose origin is the ELD or the unidentified driver profile. For events created by the driver or another authenticated user when vehicle miles are not available and cannot accurately be determined this field can be blank.

    PART 396—INSPECTION, REPAIR, AND MAINTENANCE 58. The authority citation for part 396 continues to read as follows: Authority:

    49 U.S.C. 504, 31133, 31136, 31151, and 31502; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.

    § 396.17 [Amended]
    59. Amend § 396.17 as follows: a. In paragraph (d) remove the reference to “§ 396.23(b)(1)” wherever it appears and add in its place a reference to “§ 396.23(a)(1)”; and b. In paragraph (f), remove the phrase “State government or equivalent jurisdiction” and add in its place the phrase “State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, and Mexico”. 60. Revise § 396.23 to read as follows:
    § 396.23 Equivalent to periodic inspection.

    (a)(1) If a commercial motor vehicle is subject to a mandatory inspection program that is determined by the Administrator to be as effective as § 396.17, the motor carrier or intermodal equipment provider must meet the requirement of § 396.17 through that inspection program. Commercial motor vehicle inspections may be conducted by government personnel, at commercial facilities authorized by a State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico, or by the motor carrier or intermodal equipment provider itself under the auspices of a self-inspection program authorized by a State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico.

    (2) Should FMCSA determine that an inspection program, in whole or in part, is not as effective as § 396.17, the motor carrier or intermodal equipment provider must ensure that the periodic inspection required by § 396.17 is performed on all commercial motor vehicles under its control in a manner specified in § 396.17.

    (b) [Reserved]

    PART 397—TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND PARKING RULES 61. The authority citation for part 397 continues to read as follows: Authority:

    49 U.S.C. 322; 49 CFR 1.87. Subpart A also issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.97. Subparts C, D, and E also issued under 49 U.S.C. 5112, 5125.

    62. Amend § 397.73 by revising paragraph (b) to read as follows:
    § 397.73 Public information and reporting requirements.

    (b) Reporting and publishing requirements. (1) Each State or Indian tribe, through its routing agency, shall provide information identifying all NRHM routing designations that exist within its jurisdiction:

    (i) Electronically, by email to [email protected]; or

    (ii) By mail to the Federal Motor Carrier Safety Administration, Office of Enforcement and Compliance (MC-EC), 1200 New Jersey Ave. SE, Washington, DC 20590-0001.

    (2) States and Indian tribes shall also submit to FMCSA the current name of the State or Indian tribal agency responsible for NHRM highway routing designations. The State or Indian tribe shall include descriptions of these routing designations, along with the dates they were established. Information on any subsequent changes or new NRHM routing designations shall be furnished within 60 days after establishment to the FMCSA.

    (3)(i) FMCSA will consolidate information on the NRHM routing designations, make it available on its website, https://www.fmcsa.dot.gov/regulations/hazardous-materials/national-hazardous-materials-route-registry, and publish it annually in whole or as updates in the Federal Register.

    (ii) Each State or Indian tribe may also publish this information in its official register of State or tribal regulations.

    63. Amend § 397.103 by revising paragraphs (c)(3) and (d) to read as follows:
    § 397.103 Requirements for State routing designations.

    (c) * * *

    (3) The route is published in FMCSA's Hazardous Materials Route Registry, available on the FMCSA website, https://www.fmcsa.dot.gov/regulations/hazardous-materials/national-hazardous-materials-route-registry.

    (d) A list of State-designated preferred routes and a copy of the “Guidelines for Selecting Preferred Highway Routes for Highway Route Controlled Quantity Shipments of Radioactive Materials” are available upon request to Federal Motor Carrier Safety Administration, Office of Enforcement and Compliance (MC-EC), 1200 New Jersey Ave. SE, Washington, DC 20590-0001, or by email to [email protected]

    PART 398—TRANSPORTATION OF MIGRANT WORKERS 64. The authority citation for part 398 continues to read as follows: Authority:

    49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 212, Pub. L. 106-159, 113 Stat. 1748, 1766; and 49 CFR 1.87.

    65. Revise § 398.8 to read as follows:
    § 398.8 Administration inspection of motor vehicles in operation.

    (a) Administration personnel authorized to perform inspections. All persons designated as Special Agents of the Federal Motor Carrier Safety Administration, as detailed in Appendix B of chapter III of this title, are authorized to enter upon and perform inspections of motor carrier's vehicles in operation.

    (b) Prescribed inspection report. The “Driver/Vehicle Examination Report” shall be used to record findings from motor vehicles selected for final inspection by authorized Administration employees.

    (c) Motor vehicles declared “out of service.” (1) Authorized Administration employees shall declare and mark “out of service” any motor vehicle which by reason of its mechanical condition or loading is so imminently hazardous to operate as to be likely to cause an accident or a breakdown. The “Out of Service Vehicle” sticker shall be used to mark vehicles “out of service.”

    (2) No motor carrier shall require or permit any person to operate nor shall any person operate any motor vehicle declared and marked, “out of service” until all repairs required by the “out of service notice” on the “Driver/Vehicle Examination Report” have been satisfactorily completed. The term “operate” as used in this section shall include towing the vehicle; provided, however, that vehicles marked “out of service” may be towed away by means of a vehicle using a crane or hoist; and provided further, that the vehicle combination consisting of the emergency towing vehicle and the “out of service” vehicle meets the performance requirements of § 393.52 of this subchapter.

    (3) No person shall remove the “Out of Service Vehicle” sticker from any motor vehicle prior to completion of all repairs required by the “out of service notice” on the “Driver/Vehicle Examination Report.”

    (4) The person or persons completing the repairs required by the “out of service notice” shall sign the “Certification of Repairman” in accordance with the terms prescribed on the “Driver/Vehicle Examination Report,” entering the name of his/her shop or garage and the date and time the required repairs were completed. If the driver completes the required repairs, he/she shall sign and complete the “Certification of Repairman.”

    (d) Motor carrier's disposition of the “Driver/Vehicle Examination Report.” (1) Motor carriers shall carefully examine the “Driver/Vehicle Examination Reports.” Any and all violations or mechanical defects noted thereon shall be corrected. To the extent drivers are shown not to be in compliance with the Federal Motor Carrier Safety Regulations, appropriate corrective action shall be taken by the motor carrier.

    (2) Motor carriers shall complete the “Motor Carrier Certification of Action Taken” on the “Driver/Vehicle Examination Report” in accordance with the terms prescribed thereon. Motor carriers shall return the “Driver/Vehicle Examination Reports” to the address indicated on the report within fifteen (15) days following the date of the vehicle inspection.

    Issued under the authority delegated in 49 CFR 1.87 on: May 9, 2018. Raymond P. Martinez, Administrator.
    [FR Doc. 2018-10437 Filed 5-16-18; 8:45 am] BILLING CODE 4910-EX-P
    83 96 Thursday, May 17, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0439; Product Identifier 2016-SW-074-AD] RIN 2120-AA64 Airworthiness Directives; Sikorsky Aircraft Corporation AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede airworthiness directive (AD) 2017-14-03 for Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters. AD 2017-14-03 requires an inspection and reduces the retirement lives of certain landing gear components. This proposed AD would retain the requirements of AD 2017-14-03, reduce the retirement lives of additional landing gear components, and require repeating the inspection. The actions of this proposed AD are intended to prevent an unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by July 16, 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-2018-0439; 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 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 Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email: [email protected] You may review 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:

    Dorie Resnik, Aviation Safety Engineer, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7693; 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

    We issued AD 2017-14-03, Amendment 39-18947 (82 FR 34838, July 27, 2017), for Sikorsky Model S-92A helicopters. AD 2017-14-03 was prompted by Sikorsky's updated fatigue analysis of the nose and main landing gear, which revealed that certain components require a reduced service life. Therefore, AD 2017-14-03 requires reducing the retirement lives of main landing gear (MLG) wheel axle part number (P/N) 2392-2334-001, MLG and nose landing gear (NLG) threaded hinge pin P/N 2392-2311-003, NLG cylinder P/N 2392-4006-005, NLG hinge pin P/N 2392-4312-003, and landing gear actuator rod end P/N 2392-0876-901. AD 2017-14-03 also requires a one-time visual and ultrasonic inspection of NLG airframe fitting assembly P/N 92209-01101-041 once it has accumulated 31,600 landing cycles. Those actions are intended to detect and prevent cracks or failure of any landing gear component, which could result in damage and loss of control of the helicopter.

    When we issued AD 2017-14-03, we determined it would be an interim action. Because Sikorsky's updated airworthiness limitations schedule included a repetitive inspection of the NLG airframe fitting assemblies P/N 92209-01101-041 every 1,989 landing cycles, we determined that the planned compliance time for these inspections would allow enough time to provide notice and opportunity for prior public comment on the merits of the repetitive inspection. Also, the reduced retirement lives for MLG cylinder P/N 2392-2006-005, MLG pin outboard P/N 2392-2312-003, MLG bulkhead left-hand side (LHS) P/N 92201-08111-105, -107, and -109, and MLG bulkhead right-hand side (RHS) P/N 92201-08111-106, -108, and -110 were not included in AD 2017-14-03. We determined the age of the existing Model S-92A fleet would also allow enough time to provide notice and opportunity for public comment on the merits of the reduced life limits. This proposed AD would require these inspections and reduced life limits.

    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.

    Related Service Information Under 1 CFR Part 51

    We reviewed Ultrasonic Inspection Technique No. UT 5077, Revision 0, dated July 25, 2014 (UT 5077). UT 5077 contains the inspection method, equipment and materials, calibration, and inspection procedure for performing an ultrasonic inspection of nose gear actuator fitting P/N 92209-01101-101.

    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.

    Other Related Service Information

    We also reviewed Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015 (ASB). The ASB describes procedures for conducting a visual inspection of the NLG airframe fitting assembly and an ultrasonic inspection by following the procedures in UT 5077.

    Proposed AD Requirements

    This proposed AD would require removing the following components from service:

    • Any MLG wheel axle P/N 2392-2334-001 that has 22,300 or more landing cycles.

    • Any MLG or NLG threaded hinge pin P/N 2392-2311-003 that has 26,100 or more landing cycles.

    • Any NLG cylinder P/N 2392-4006-005 that has 26,300 or more landing cycles.

    • Any NLG hinge pin P/N 2392-4312-003 that has 26,700 or more landing cycles.

    • Any landing gear actuator rod end P/N 2392-0876-901 that has 41,700 or more landing cycles.

    • Any MLG cylinder P/N 2392-2006-005 that has 76,300 or more landing cycles.

    • Any MLG pin outboard P/N 2392-2312-003 that has 50,300 or more landing cycles.

    • Any MLG bulkhead LHS P/N 92201-08111-105, -107, and -109 that has 58,400 or more landing cycles.

    • Any MLG bulkhead RHS P/N 92201-08111-106, -108, and -110 that has 58,400 or more landing cycles.

    For helicopters that have 31,600 or more landing cycles and an NLG airframe fitting assembly P/N 92209-01101-041 installed, this proposed AD would also require, before further flight and thereafter at intervals not exceeding 1,989 landing cycles:

    • Using a 10X or higher power magnifying glass, inspecting each bushing and all visible surfaces of mating lug fittings adjacent to each bushing for fretting, corrosion, wear, and scratches.

    • Replacing the NLG airframe fitting assembly before further flight if there is fretting, corrosion, wear, or a scratch more than 0.0005 inch deep.

    • Ultrasonic inspecting the NLG actuator fitting and replacing the NLG actuator fitting before further flight if there are any anomalies.

    Costs of Compliance

    We estimate that this AD will affect 80 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 hour:

    • Replacing a wheel axle P/N 2392-2334-001 would require 2 work-hours and required parts cost $22,000, for a cost per helicopter of $22,170.

    • Replacing a MLG or NLG threaded hinge pin P/N 2392-2311-003 would require 1 work-hour and required parts cost $3,800, for a cost per helicopter of $3,885.

    • Replacing a NLG cylinder P/N 2392-4006-005 would require 1 work-hour and required parts cost $27,200, for a cost per helicopter of $27,285.

    • Replacing a NLG hinge pin P/N 2392-4312-003 would require 1 work-hour and required parts cost $4,400, for a cost per helicopter of $4,485.

    • Replacing a landing gear actuator rod end P/N 2392-0876-901 would require 1 work-hour and required parts cost $900, for a cost per helicopter of $985.

    • Replacing a MLG cylinder P/N 2392-2006-005 would require 2 work-hours and required parts cost $33,100, for a cost per helicopter of $33,270.

    • Replacing a MLG pin outboard P/N 2392-2312-003 would require 1 work-hour and required parts cost $4,300, for a cost per helicopter of $4,385.

    • Replacing a MLG bulkhead LHS P/N 92201-08111-105, -107, and -109 would require 70 work-hours and required parts would cost $12,550, for a cost per helicopter of $18,500.

    • Replacing a MLG bulkhead RHS P/N 92201-08111-106, -108, and -110 would require 70 work-hours and required parts would cost $12,550, for a cost per helicopter of $18,500.

    • Inspecting the NLG airframe fitting assembly P/N 92209-01101-041 would require 8 work-hours, and required parts cost is minimal, for a cost of $680 per helicopter and $54,400 for the U.S. fleet, per inspection cycle.

    • If required, replacing a NLG actuator fitting P/N 92209-01101-101 would require 70 work-hours, and required parts cost $10,000, for a cost per helicopter of $15,950.

    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 removing Airworthiness Directive (AD) 2017-14-03, Amendment 39-18947 (82 FR 34838, July 27, 2017) and adding the following new AD: Sikorsky Aircraft Corporation (Sikorsky): Docket No. FAA-2018-0439; Product Identifier 2017-SW-074-AD. (a) Applicability

    This AD applies to Sikorsky Model S-92A helicopters, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as fatigue failure of the landing gear. This condition could result in failure of the landing gear and subsequent damage to and loss of control of the helicopter.

    (c) Affected ADs

    This AD replaces AD 2017-14-03, Amendment 39-18947 (82 FR 34838, July 27, 2017).

    (d) Comments Due Date

    We must receive comments by July 16, 2018.

    (e) 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.

    (f) Required Actions

    (1) Before further flight, remove from service any part that has accumulated the number of landing cycles listed in Table 1 to paragraph (f)(1) of this AD. Thereafter, remove from service any part before accumulating the number of landing cycles listed in Table 1 to paragraph (f)(1) of this AD. For purposes of this AD, a landing cycle is counted anytime the helicopter lifts off into the air and then lands again regardless of the duration of the landing and regardless of whether the engine is shut down. If the number of landing cycles in unknown, multiply the number of hours time-in-service by 4.5 to determine the number of landing cycles.

    EP17MY18.007

    (2) For helicopters with 31,600 or more landing cycles and an NLG airframe fitting assembly P/N 92209-01101-041 installed, before further flight and thereafter at intervals not to exceed 1,989 landing cycles:

    (i) Using a 10X or higher power magnifying glass, inspect each bushing (P/N 92209-01101-102 and P/N 92209-01101-103) and all visible surfaces of mating lug fittings adjacent to each bushing for fretting, corrosion, wear, and scratches. If there is fretting, corrosion, wear, or a scratch more than 0.0005 inch deep, replace the NLG airframe fitting assembly before further flight.

    (ii) Ultrasonic inspect each NLG actuator fitting P/N 92209-01101-101 in accordance with Sikorsky Ultrasonic Inspection Technique No. UT 5077, Revision 0, dated July 25, 2014 (UT 5077), except you are not required to report to or contact Sikorsky. If there are any anomalies or suspect indications, replace the NLG actuator fitting before further flight.

    Note 1 to paragraph (f)(2)(ii) of this AD:

    A copy of UT 5077 is attached to Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015.

    (g) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Boston ACO Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Dorie Resnik, Aviation Safety Engineer, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7693; 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.

    (h) Additional Information

    Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email: [email protected] You may review this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    (i) Subject

    Joint Aircraft Service Component (JASC) Code: 3200 Main Landing Gear and 3220 Nose Landing Gear.

    Issued in Fort Worth, Texas, on May 9, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service.
    [FR Doc. 2018-10495 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0438; Product Identifier 2017-SW-062-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 AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. This proposed AD would require measuring a vibration level in the tail rotor (T/R) drive. This proposed AD is prompted by reports of bearing degradation. 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 16, 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-2018-0438; 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:

    Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy 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. 2017-0159, dated August 25, 2017, to correct an unsafe condition for Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. EASA advises of two occurrences on AS355 military helicopters in which the main gearbox (MGB) oil cooler fan bearing (bearing) installed on the TR drive shaft experienced significant degradation. EASA states that while investigation has not determined the cause of the failures, this condition may also occur on other AS355 helicopters due to design commonality. According to EASA, this condition, if not detected and corrected, could result in loss of MGB and engine oil cooling function, loss of the rear transmission, and subsequent loss of control of the helicopter. To address this unsafe condition and as an interim measure, the EASA AD requires two vibration level measurements of the forward portion of the tail rotor drive line, one before and one after cleaning the MGB oil cooler fan, and replacing the bearings if excessive level or level trends are detected. The EASA AD also specifies that after the effective date of the AD, only those MGB oil cooler fan assembly bearings that are new or that have passed the vibration level measurements may be installed.

    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

    We reviewed Airbus Helicopters Alert Service Bulletin No. AS355-05.00.77, Revision 0, dated July 3, 2017, which contains procedures for checking the condition of the fan assembly bearings by measuring the vibration levels of the first section of the T/R drive.

    Proposed AD Requirements

    This proposed AD would require, within 165 hours time-in-service, measuring the T/R drive vibration level without balancing, cleaning the fan, and repeating the vibration level measurement. If the difference between the two amplitude values is greater than 0.75 inch per second (ips), the proposed AD would require, before further flight, replacing each T/R fan bearing.

    Interim Action

    We consider this proposed AD to be an interim action. The manufacturer is currently developing a terminating action for the unsafe condition described in this proposed AD. If a terminating action is identified, we may consider further rulemaking then.

    Costs of Compliance

    We estimate that this proposed AD would affect 104 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, measuring the vibration levels would require about 5 work-hours, for a cost of $425 per helicopter and $44,200 for the U.S. operator fleet. If required, replacing both fan assembly bearings would require about 8 work-hours, and required parts would cost $1,064, for a cost per helicopter of $1,744.

    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-2018-0438; Product Identifier 2017-SW-062-AD. (a) Applicability

    This AD applies to Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as degradation of a main gearbox (MGB) oil cooler fan assembly bearing. This condition could result in loss of MGB and engine oil cooling function, loss of the rear transmission, and subsequent loss of control of the helicopter.

    (c) Comments Due Date

    We must receive comments by July 16, 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

    (1) Within 165 hours time-in-service (TIS):

    (i) Measure the tail rotor (T/R) drive vibration level without balancing the T/R drive, and record the amplitude value.

    (ii) Clean the oil cooler fan.

    (iii) Measure the T/R drive vibration level without balancing the T/R drive, and record the amplitude value.

    (iv) Calculate the difference between the two amplitude values. If the difference is greater than 0.75 inch per second (ips), before further flight, replace each oil cooler fan assembly bearing.

    (2) After the effective date of this AD, do not install an oil cooler fan assembly bearing with more than 0 hours TIS unless the requirements of this AD have been accomplished.

    (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: Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy 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

    (1) Airbus Helicopters Alert Service Bulletin No. AS355-05.00.77, Revision 0, dated July 3, 2017, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, 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.

    (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0159, dated August 25, 2017. 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: 6510 Tail Rotor Driveshaft.

    Issued in Fort Worth, Texas, on May 7, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service.
    [FR Doc. 2018-10494 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0426; Airspace Docket No. 17-AEA-8] RIN 2120-AA66 Proposed Establishment of Class E Airspace; Freeport, PA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Freeport, PA, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures serving McVille Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.

    DATES:

    Comments must be received on or before July 2, 2018.

    ADDRESSES:

    Send comments on this rule to: U. S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Bldg Ground Floor Rm W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or (202) 366-9826.You must identify the Docket No. FAA-2017-0426; Airspace Docket No. 17-AEA-8, at the beginning of your comments. You may also submit and review received comments through the internet at http://www.regulations.gov.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed 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 establish Class E airspace at McVille Airport, Freeport, PA, to support IFR operations in standard instrument approach procedures at this airport.

    Comments Invited

    Interested persons are invited to comment on 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 (FAA-2017-0426 and Airspace Docket No. 17-AEA-8) and be submitted in triplicate to the address listed above. You may also submit comments through the internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2017-0426; Airspace Docket No. 17-AEA-8.” 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 from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

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

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Freeport, PA, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for McVille Airport. Controlled airspace extending upward from 700 feet above the surface within a 7.6-mile radius of the airport would be established for IFR operations.

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

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, 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. AEA PA E5 Freeport, PA [New] McVille Airport, PA (Lat. 40°44′04″ N, long. 79°35′44″ W)

    That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of McVille Airport.

    Issued in College Park, Georgia, on May 8, 2018. Debra L. Hogan, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-10390 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0246; Airspace Docket No. 18-ASW-6] RIN 2120-AA66 Proposed Revocation of Class D and E Airspace; Fort Sill; and Amendment of Class D and E Airspace; Lawton, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to remove Class D airspace, Class E airspace designated as a surface area, and Class E airspace designated as an extension to a Class D and Class E airspace at Henry Post Army Air Field (AAF), Fort Sill, OK; amend Class D airspace and Class E airspace designated as a surface area at Lawton-Fort Sill Regional Airport, Lawton, OK; and amend Class E airspace extending upward from 700 feet above the surface at Lawton-Fort Sill Regional Airport and Henry Post AAF. The FAA is proposing this action due to the closure of the air traffic control tower (ATCT) at Henry Post AAF. The name of Lawton-Fort Sill Regional Airport and the geographic coordinates of Henry Post AAF would also be updated to coincide with the FAA's aeronautical database, and the outdated term “Airport/Facility Directory” would be replaced with the term “Chart Supplement.”

    DATES:

    Comments must be received on or before July 2, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0246; Airspace Docket No. 18-ASW-6, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class D airspace, Class E airspace designated as a surface area, and Class E airspace designated as an extension to a Class D and Class E airspace at Henry Post AAF, Fort Sill, OK; amend Class D airspace and Class E airspace designated as a surface area at Lawton-Fort Sill Regional Airport, Lawton, OK; and amend Class E airspace extending upward from 700 feet above the surface at Lawton-Fort Sill Regional Airport and Henry Post AAF to support instrument flight rule operations at these airports.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0246/Airspace Docket No. 18-ASW-6.” 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 athttp://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by:

    Removing Class D airspace at Henry Post AAF, Fort Sill, OK;

    Amending Class D airspace at Lawton-Fort Sill Regional Airport (formerly Lawton Municipal Airport), Lawton, OK, by adding an extension 1.1 miles each side of the 167° radial of the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport; amending the exclusionary language from “that airspace north of a line between lat. 34°36′18″ N, long. 98°20′33″ W and lat. 34°37′16″ N, long. 98°28′29″ W; to “that airspace within a 2.0-mile radius of Henry Post AAF”; updating the name of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;

    Removing Class E airspace designated as a surface area at Henry Post AAF;

    Amending Class E airspace designated as a surface area at Lawton-Fort Sill Regional Airport by adding an extension 1.1 miles each side of the 167° radial of the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport; removing that area within a 4-mile radius of Henry Post AAF from the airspace legal description; amending the exclusionary language from “within Restricted Areas R5601A and R-5601B when these restricted areas are activated” to “that airspace within a 2.0-mile radius of Henry Post AAF”; updating the name of the Lawton-Fort Sill Airport (formerly Lawton Municipal Airport), and the geographic coordinates of Henry Post AAF to coincide with the FAA's aeronautical database; removing the city name associated with Henry Post AAF to comply with FAA Order 7400.2L, Procedures for Handling Airspace Matters; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;

    Removing Class E airspace designated as an extension of Class D and Class E airspace at Henry Post AAF; and

    Amending Class E airspace extending upward from 700 feet above the surface at Lawton-Fort Sill Regional Airport and Henry Post AAF by amending the extension to the south of Lawton-Fort Sill Regional Airport from the 167° (previously 178°) radial from the Lawton VOR/DME extending from the 6.8-mile radius to 13.1 (decreased from 20.6) miles south of the Lawton-Fort Sill Regional Airport; removing the extension from the 358° radial from Lawton VOR/DME; removing the extension to the north of Henry Post AAF referencing the 003° radial from the Lawton VOR/DME; adding an extension 4.0 miles each side of the 360° bearing from the Henry Post AAF from the 6.5-mile radius of Henry Post AAF to 10.9 miles north of Henry Post AAF; amending the exclusionary language pertaining to restricted areas from “R-5601A and R-5601B when these restricted areas are activated” to “R-5601A, R-5601B and R-5601H when active”; removing the exclusionary language “and excluding that airspace within the Wichita Falls, TX, Class E airspace area” from the airspace legal description; and updating the name of Lawton-Fort Sill Regional (formerly Lawton Municipal Airport) and the geographic coordinates of Henry Post AAF to coincide with the FAA's aeronautical database.

    This action is being proposed due to the closure of the ATCT at Henry Post AAF and to remove the associated airspace.

    Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this 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. ASW OK D Fort Sill, OK [Removed] ASW OK D Lawton, OK [Amended] Lawton-Fort Sill Regional Airport, OK (Lat. 34°34′04″ N, long. 98°25′00″ W) Lawton VOR/DME (Lat. 34°29′46″ N, long. 98°24′47″ W) Henry Post AAF (Lat. 34°38′59″ N, long. 98°24′08″ W)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Lawton-Fort Sill Regional Airport, and within 1.1 miles each side of the 167° radial from the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport, excluding that airspace within a 2.0-mile radius of Henry Post AAF. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002. Class E Airspace Areas Designated as Surface Areas. ASW OK E2 Fort Sill, OK [Removed] ASW OK E2 Lawton, OK [Amended] Lawton-Fort Sill Regional Airport, OK (Lat. 34°34′04″ N, long. 98°25′00″ W) Lawton VOR/DME (Lat. 34°29′46″N, long. 98°24′47″ W) Henry Post AAF (Lat. 34°38′59″ N, long. 98°24′08″ W)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Lawton-Fort Sill Regional Airport, and within 1.1 miles each side of the 167° radial from the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport, excluding that airspace within a 2.0-mile radius of Henry Post AAF. 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 of Class D and Class E Surface Areas. ASW OK E4 Fort Sill, OK [Removed] Paragraph 6005. Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW OK E5 Lawton, OK [Amended] Lawton-Fort Sill Regional Airport, OK (Lat. 34°34′04″ N, long. 98°25′00″ W) Lawton VOR/DME (Lat. 34°29′46″ N, long. 98°24′47″ W) Henry Post AAF (Lat. 34°38′59″ N, long. 98°24′08″ W)

    That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Lawton-Fort Sill Regional Airport, and within 4.0 miles each side of the 167° radial from the Lawton VOR/DME extending from the 6.9-mile radius to 13.1 miles south of Lawton-Fort Sill Regional Airport, and within a 6.5-mile radius of Henry Post AAF, and within 4.0 miles each side of the 360° bearing from Henry Post AAF extending from the 6.5-mile radius to 10.9 miles north of Henry AAF, excluding that airspace within Restricted Areas R-5601A, R-5601B, and R-5601H when active.

    Issued in Fort Worth, Texas, on April 7, 2018. Wayne Eckenrode, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-10391 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33] RIN 2120-AA66 Proposed Amendment and Establishment of Multiple Air Traffic Service (ATS) Routes; Western United States AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend six United States Area Navigation (RNAV) routes (Q-88, Q-90, Q-114, Q-126, Q-136, and Q-150) and establish one RNAV route (Q-92) in the western United States. The routes would support standard instrument departures (SIDs) and standard terminal arrival routes (STARs) for Denver International Airport. Additionally, the routes will promote operational efficiencies for users and provide connectivity to current and proposed RNAV enroute procedures while enhancing capacity for adjacent airports.

    DATES:

    Comments must be received on or before July 2, 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-2018-0232; Airspace Docket No. 17-ANM-33 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:

    Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    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 the 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 modifies the route structure as necessary to support the flow of air traffic within the National Airspace System.

    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 (FAA Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 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.

    Background

    The Denver, Salt Lake City, and Minneapolis Air Route Traffic Control Centers (ARTCCs) requested the FAA to amend six existing and establish one new RNAV Q-Routes. These routes would support new SIDs and STARs that are being developed for Denver International Airport and surrounding airports. Moreover, the current routes are being amended to connect the midwest and east coast airports with west coast airports. Additional waypoints are being strategically added to existing routes over the Rocky Mountains to provide more flexibility in route planning to avoid mountain wave effect (severe turbulence, strong vertical currents, and icing) and to provide flexibility in flight planning for oxygen escape routes (oxygen escape routes are used in the event of cabin depressurization during a flight).

    Furthermore, amending the six existing routes and adding the one new route will facilitate the implementation of traffic management initiatives such as adjacent ARTCC metering (ACM) and time based flow management.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify United States RNAV routes Q-88, Q-90, Q-114, Q-126, Q-136, Q-150; and establish United States RNAV route Q-92. The proposed route changes are outlined below.

    Q-88: Q-88 currently extends from waypoint HAKMN, NV to waypoint CHESZ, UT. The amended route would connect airports in the northeastern United States (U.S.) and Canada with Los Angeles and Las Vegas. As well as, provide Denver International Airport departures to the north a routing to Minneapolis.

    Q-90: Q-90 currently extends from waypoint DNERO, CA to waypoint JASSE, AZ. The amended route would add connection to Chicago O'Hare Airport. Additionally, the route would provide an alternate south departure route from Denver International airport to the Los Angeles, CA, basin satellite airports.

    Q-92: Would be established to support departures from Denver International Airport bound for airports in the midwest and east coast.

    Q-114: Q-114 currently extends from waypoint NATEE, NV to waypoint BUGGG, UT. The amended route would connect Chicago area airports to the Los Angeles basin airports. Additionally, the amended route would support Denver International Airport west departures to the Los Angeles, CA, basin satellite airports.

    Q-126: Q-126 currently extends from waypoint TIPRE, CA to VOR/DME Meeker, CO, (EKR). The amended route would link airports on the U.S. west coast to airports in the midwest. Q-126 would add utility by supporting Denver International Airport arrival traffic from the west. Additional waypoints were added to the airway to provide for oxygen escape routes.

    Q-136: Q-136 currently extends from VORTAC Coaldale, NV (OAL) to FIX VOAXA, CO. The amended route would link airports on the U.S. west coast to airports in the midwest. Q-136 would support Denver International Airport west departures to the San Francisco Bay area and departures to the midwest and east coast airports. Additional waypoints were added to the airway to provide for oxygen escape routes.

    Q-150: Q-150 currently extends from waypoint STEVS, WA to waypoint OPPEE, WY. The amended route would support overflight traffic between Seattle area airports and Dallas/Ft. Worth, Houston, as well as Calgary and Edmonton airports in Canada. Q-150 would support Denver departures enroute to Boise, ID; Portland, OR; and Seattle, WA.

    United States Area Navigation Routes are published in paragraph 2006 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 United States Area Navigation Routes listed in this document will be subsequently published in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017 and effective September 15, 2017, is amended as follows: Paragraph 2006—United States Area Navigation Routes Q-88 HAKMN, NV to DKOTA, SD [Amended] HAKMN, NV WP (Lat. 35°30′28.31′ N, long. 115°04′47.04″ W) LAKRR, NV WP (Lat. 36°05′07.72′ N, long. 114°17′09.16″ W) PROMT, UT WP (Lat. 37°30′06.70′ N, long. 111°52′12.94″ W) ZAKRY, CO WP (Lat. 39°22′47.16′ N, long. 107°12′15.76″ W) CHUWY, NE WP (Lat. 41°30′42.77′ N, long. 102°52′39.47″ W) VIVID, SD FIX (Lat. 43°51′37.63′ N, long. 099°59′15.44″ W) DKOTA, SD WP (Lat. 45°22′17.00′ N, long. 097°37′27.00″ W) Q-90 DNERO, CA to WELKY, IA [Amended] DNERO, CA WP (Lat. 35°02′07.14′ N, long. 114°54′16.39″ W) YAMHA, CO WP (Lat. 37°04′15.31′ N, long. 108°51′39.33″ W) DAAYE, CO WP (Lat. 38°00′40.43′ N, long. 105°46′44.19″ W) WELKY, IA WP (Lat. 40°38′57.01′ N, long. 093°33′40.60″ W) Q-92 CHUWY, NE to JORDY, IA [New] CHUWY, NE WP (Lat. 41°30′42.77′ N, long. 102°52′39.47″ W) KUTCH, NE WP (Lat. 41°48′23.73′ N, long. 101°01′44.06″ W) MAASI, NE WP (Lat. 41°59′36.09′ N, long. 097°34′21.90″ W) JORDY, IA FIX (Lat. 42°05′11.53′ N, long. 093°31′32.82″ W) Q-114 NATEE, NV to LEONG, IA [Amended] NATEE, NV WP (Lat. 35°37′14.00′ N, long. 115°22′26.00″ W) BAWER, UT WP (Lat. 37°38′06.68′ N, long. 112°16′45.89″ W) AVVVS, CO FIX (Lat. 40°02′07.82′ N, long. 104°46′03.16″ W) AYOLE, NE WP (Lat. 41°08′59.40′ N, long. 100°43′20.63″ W) LEONG, IA WP (Lat. 41°24′02.01′ N, long. 093°44′57.66″ W) Q-126 TIPRE, CA to BRAFF, CO [Amended] TIPRE, CA WP (Lat. 38°12′21.00′ N, long. 121°02′09.00″ W) INSLO, NV WP (Lat. 38°40′44.90′ N, long. 117°17′53.20″ W) LBATO, UT WP (Lat. 39°47′17.82′ N, long. 110°04′48.60″ W) BASNN, CO WP (Lat. 39°55′53.98′ N, long. 109°00′50.73″ W) BRAFF, CO WP (Lat. 40°08′35.62′ N, long. 104°23′26.75″ W) Q-136 COALDALE, NV (OAL) to BAACN, IA [Amended] COALDALE, NV (OAL) VORTAC (Lat. 38°00′11.74′ N, long. 117°46′13.60″ W) RUMPS, NV WP (Lat. 38°07′10.00′ N, long. 117°16′15.00″ W) KATTS, NV WP (Lat. 38°20′00.00′ N, long. 116°20′00.00″ W) WEEMN, UT WP (Lat. 39°21′57.00′ N, long. 109°58′02.80″ W) COUGH, CO WP (Lat. 39°53′45.04′ N, long. 105°14′56.79″ W) ZIRKL, NE WP (Lat. 40°07′56.94′ N, long. 101°22′17.29″ W) BAACN, IA WP (Lat. 40°58′29.04′ N, long. 093°47′25.79″ W) Q-150 STEVS, WA to EXHAS, KS [Amended] STEVS, WA WP (Lat. 47°14′54.49′ N, long. 120°32′09.93″ W) GANNE, WY WP (Lat. 43°18′37.17′ N, long. 109°30′23.85″ W) DUUZE, KS WP (Lat. 38°51′00.00′ N, long. 101°42′00.00″ W) EXHAS, KS WP (Lat. 38°20′04.70′ N, long. 101°09′35.23″ W) Issued in Washington, DC, on May 10, 2018. Scott M. Rosenbloom, Acting Manager, Airspace Policy Group.
    [FR Doc. 2018-10446 Filed 5-16-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0367] RIN 1625-AA00 Safety Zone for Marine Events, Delaware River; Philadelphia, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard is proposing to establish a temporary safety zone on the waters of the Delaware River in Philadelphia, Pennsylvania. The regulation will restrict vessel traffic on a portion of the Delaware River from operating during a fireworks display on June 30, 2018 from 9:30 p.m. to 11:30 p.m. This regulation is necessary to protect the surrounding public and vessels from the hazards associated with a fireworks display. During the enforcement periods, no vessel may enter in or transit this regulated area without approval from the Captain of the Port or a designated representative.

    DATES:

    Comments and related material must be received by the Coast Guard on or before June 18, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0367 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email MST1 Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, telephone (215) 271-4889.

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking §  Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On 1 March 2018, the Delaware River Waterfront Corporation notified the Coast Guard that it will be conducting a fireworks display from 9:30 to 11:30 p.m. on June 30, 2018. The fireworks will be launched from a barge in the Delaware River off Penn's Landing in Philadelphia. Hazards from fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern.

    The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP Delaware Bay proposes to establish a safety zone on a portion of the Delaware River, Philadelphia, PA to ensure the safety of persons, vessels and the public during the event. The proposed safety zone includes navigable all waters of the Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline commencing at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29.1″ N, longitude 075°07′56.5′ W, and bounded on the north by the Benjamin Franklin Bridge where it crosses the Delaware River. The safety zone would be effective and enforced from 9:30 p.m. to 11:30 p.m. on June 30, 2018. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

    This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be unable to transit the safety zone for the duration of the fireworks event however; this safety zone will impact a small designated area of the Delaware River, in Philadelphia, PA, for a two hour period during the fireworks event. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone; under the regulation vessel operators may request 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 proposed rule would 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.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves a safety zone lasting for two hours that would prohibit entry on portions of the Delaware River to promote public and maritime safety during a fireworks display. 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. We seek any comments or information that may lead to the

    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.

    V. Public Participation and Request for Comments

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

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

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

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

    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 proposes to amend 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.T05-0367 to read as follows:
    § 165.T05-0367 Safety Zone; Delaware River; Philadelphia, PA.

    (a) Location. The following area is a safety zone: All navigable waters of the Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline commencing at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29.1″ N, longitude 075°07′56.5″ W, and bounded on the north by the Benjamin Franklin Bridge where it crosses the Delaware River.

    (b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard petty officer, warrant or commissioned officer on board a Coast Guard vessel or on board a federal, state, or local law enforcement vessel assisting the Captain of the Port, Delaware Bay in the enforcement of the safety zone.

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

    (2) To request permission to enter the safety zone, contact the COTP or the COTP's representative on marine band radio VHF-FM channel 16 (156.8 MHz) or 215-271-4807. All persons and vessels in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (d) Enforcement period. This section will be enforced from 9:30 p.m. to 11:30 p.m. on June 30, 2018.

    Dated: May 11, 2018. Scott E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware.
    [FR Doc. 2018-10486 Filed 5-16-18; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2018-2] Group Registration of Serials AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Copyright Office is proposing to update its regulation governing the group registration option for serials—works such as magazines and journals. The proposed rule will make a number of changes to reflect current Office practices, promote efficiency of the registration process, and encourage broader participation in the registration system by reducing the burden on applicants. Specifically, the proposed rule will require applicants to file an online application rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. It will update the eligibility requirements for this group option in several respects, such as clarifying that each issue must be published under the same continuing title. In addition, the proposed rule will remove the requirement that the claimant provide the Library of Congress with two complimentary subscriptions to that serial as a condition for using the group registration option. Under the proposed rule, however, serial publishers will remain subject to the mandatory deposit requirement. Specifically, if a serial is published in the United States in a physical format, the publisher must send complimentary subscriptions to the Library, unless it is informed that the serial title is not needed for the Library's collection. Serials published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime. The Office invites public comment on these proposed changes.

    DATES:

    Comments must be made in writing and must be received in the U.S. Copyright Office no later than June 18, 2018.

    ADDRESSES:

    For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at https://www.copyright.gov/rulemaking/group-serials/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at [email protected] and [email protected]; or Cindy Paige Abramson, Assistant General Counsel, by telephone at 202-707-0676, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    When Congress enacted the Copyright Act of 1976 (the “Act”), it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration, and the nature of the deposits required for each such class. See 17 U.S.C.408(c). In addition, Congress granted the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” See 17 U.S.C. 408(c)(1). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection. H.R. Rep. No. 94-1476, at 154 (1976); reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975). Pursuant to the authority granted from Congress, the Register has issued regulations permitting the U.S. Copyright Office (the “Office”) to issue a group registration for limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5),(6), (9), 202.4(e), (g)-(i), (k).

    II. The Existing Group Registration Option for Serials

    In 1991, the Office began offering a group registration option for serials.1 55 FR 50556 (Dec. 7, 1990). A “serial” is defined as a “work issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely,” such as periodicals, magazines, and journals. 37 CFR 202.3(b)(1)(v).

    1 Subsequently, the Office created separate group registration options for daily newspapers and daily newsletters. 57 FR 39615 (Sept. 1, 1992); 60 FR 15874 (Mar. 28, 1995). While such works meet the regulatory definition of “serials,” see 37 CFR 202.3(b)(1)(v), they could not be registered under the existing serial group registration option because that option was limited to serials published at intervals of a week or longer. See 55 FR at 50556. The Office has recently updated its regulations regarding the group registration of newspapers, 83 FR 4144 (Jan. 30, 2018), and plans to issue a proposed rule relating to the group registration of newsletters.

    The current group registration option for serials has a number of requirements, which are listed in different areas of the Code of Federal Regulations and in various Office publications. Specifically, applicants may use the group option (i) if the serial is “published at intervals of a week or longer”; (ii) if the issues are “published in the same calendar year”; (iii) if the “application covers no more than the issues published in a given three month period”; and (iv) if the issues are “created no more than one year prior to publication.” 37 CFR 202.3(b)(6)(i), (i)(B), (i)(G). The applicant must include a “minimum [of] 2 issues” in each submission, id. § 201.3(c)(6), and may register the works using the online application designated for groups of serial issues, or submit a paper application on Form SE/Group, id. § 202.3(b)(6)(v). In addition, “[t]he claim to copyright for which registration is sought” must be “in the collective work”; the collective work must be a work made for hire; “[t]he collective work authorship” must be “essentially new material that is being published for the first time”; and “[t]he author(s) and claimant(s) of the collective work” must be “the same person(s) or organization(s).” Id. § 202.3(b)(6)(i)(C)-(F). The applicant must also submit a deposit consisting of one complete copy of the best edition of each issue included in the group registration.2 Id. § 202.3(b)(6)(v)(A)(3), B(3).

    2 The “best edition” of a work is “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be the most suitable for its purposes.” 37 CFR 202.19(b)(1)(i).

    The regulation also contains several provisions that are intended to help bolster the Library's collections. To use the group registration option, “two complimentary subscriptions . . . must be entered and maintained in the name of the Library of Congress,” and applicants “must submit a letter affirming that two complimentary subscriptions to the particular serial have been entered for the Library of Congress.” Id. §§ 202.3(b)(6)(ii), 202.20(c)(2)(xvii). Moreover, the complimentary copies “must be submitted regularly and promptly after publication,” mailed to the Office, and received “promptly after publication of each issue of the serial.” Id. §§ 202.3(b)(6)(i)(A), (iii), 202.20(c)(2)(xvii). If the publisher does not comply with these requirements, the Register “may revoke the privilege” of using the group registration option.3 Id. § 202.3(b)(6)(iv).

    3 When the Office published the regulation in the Federal Register it stated that providing “two complimentary subscription copies will satisfy the mandatory deposit requirement of section 407,” although this was not mentioned in the regulation itself. See 55 FR 50556.

    The Office adopted an interim practice for mandatory deposit of serials because the Library does not desire all registered serials for its collections. The interim practice is reflected in the “help text” for the online application, the Compendium of U.S. Copyright Office Practices, Third Edition, and Circular 62B: Copyright Registration for a Group of Serial Issues, though not in the Office's regulations. Under the interim practice, the Office encourages applicants to contact the Copyright Acquisitions Division (“CAD”) prior to submitting an application to determine if the Library has selected that serial for its collections. If the Library has selected the serial, CAD will notify the applicant in writing and provide instructions for seeking a group registration and for mailing complimentary subscription copies to the Library. If the serial has not been selected, CAD will notify the applicant that it may use the group registration option without providing subscription copies. See Copyright Office, Compendium of U.S. Copyright Office Practices sec. 1109.5(A) (3d ed. 2017) (hereinafter the “Compendium”); Circular 62b: Copyright Registration for a Group of Serial Issues at 2-3 (hereinafter “Circular 62b”); Help: Serial Issues (http://www.copyright.gov/eco/help-serial.html).

    In addition to the above practices, Form SE/Group and Office publications list additional requirements for the group registration option for serials. Specifically, the instructions for Form SE/Group state that each issue must be published under the same continuing title, and the applicant must provide a publication date for each issue. These requirements have appeared in Form SE/Group since at least February 2000. In addition, the Compendium, and Circular 62b state that the letter to the Office affirming the complimentary subscription should include the name of the publisher, the title of the serial, and the volume, number, issue date, or other identifying information that appear on the first issue that will be delivered to the Library. See Compendium sec. 1109.5(A), Circular 62b.

    III. The Current Rule Governing Mandatory Deposit of Serials

    Section 407 of the Copyright Act states that if a work is published in the United States, the copyright owner or the owner of the exclusive right of publication must affirmatively deposit two copies of the “best edition” of that work with the Library within three months after publication. 17 U.S.C. 407(a)-(b). This is known as the “mandatory deposit” requirement. As a general rule, publishers may satisfy this requirement by registering their works with the Office, or by sending copies to the Copyright Office's Copyright Acquisitions Division (“CAD”) without seeking a registration. If a publisher fails to comply with the mandatory deposit requirement, the Office may issue a written demand for those works, and if the required copies are not received within three months thereafter, the copyright owner or owner of the exclusive right of publication in that work may be subject to fines or other monetary liability. See id. 407(d). The Office has the authority to establish regulations governing mandatory deposit, including regulations to exempt any categories of material from the deposit requirements. See id. 407(c), 702.

    Serials published in a physical format (including works published both in physical and electronic formats) are subject to these affirmative mandatory deposit requirements. By contrast, in 2010, the Office adopted an interim rule that established a different process for serials published solely in electronic form. The interim rule established a general exemption for most “[e]lectronic works published in the United States and available only online,” except for serials published solely in electronic formats (i.e., “electronic-only” serials). 37 CFR 202.19(c)(5). For electronic-only serials, there is no affirmative obligation to deposit works with the Copyright Office. Instead, if the Library desires a particular serial title for its collections, the Office will issue a written demand requiring the publisher to deposit copies of those serials. 37 CFR 202.24.

    Under the current regulations, the mandatory deposit requirements for electronic-only serials are significantly different than the registration deposit and submission requirements governing the group registration option for serials. For purposes of mandatory deposit, publishers are required to submit an electronic copy in a specific format, together with certain types of metadata that may be embodied in the copy. 37 CFR pt. 202, app. B, sec. IX. In addition, publishers must comply with certain “[t]echnical standards” when they submit their electronic works to the Office. 37 CFR pt. 202, app. B, sec. IX.

    IV. The Proposed Rule

    The existing regulations governing group registration of serials require updating. As noted above, the various rules that govern that group registration option are scattered across the Code of Federal Regulations, the Compendium, the relevant Circular, and the online help text for the eCO system. Accordingly, the Office is proposing to amend the regulation governing the group registration option for serials to centralize and streamline the eligibility requirements.4

    4 The proposed rule also corrects an unrelated error in the preamble to the Best Edition Statement. The preamble states that “[f]or works first published only in a country other than the United States, the law requires the deposit of the best edition as first published.” 37 CFR, pt. 202, app. B. That is inconsistent with section 101 of the Copyright Act, which defines “best edition” as “the edition, published in the United States at any time before the date of deposit,” and section 408(b)(3), which states that “in the case of a work first published outside the United States,” the applicant should submit “one complete copy or phonorecord as so published.” 17 U.S.C. 101, 408(b)(3) (emphasis added).

    In addition, the existing group registration regulations do not accurately reflect the Office's current practices relating to mandatory deposit. The existing rule contemplates that registration examiners will confirm with the Library on an ongoing basis either that group registration applicants are continuing to provide serial subscriptions to the Library, or that they are exempt from that requirement. In practice, this does not happen; instead the registration examiners do not confirm whether or not subscriptions have been provided. In addition, the group registration regulations by their terms contemplate the provision of physical subscription copies to the Library for all serial titles that the Library wants to include in its collections. But for one category of serial titles—electronic-only serials—this rule does not apply in practice. Electronic-only serials are not obtained by the Library through subscriptions, but through a separate demand-based scheme.5 The proposed rule separates and clarifies the registration and mandatory deposit requirements for serials, including by making the subscription requirement part of the mandatory deposit regulations.6

    5 37 CFR 202.24.

    6 The Copyright Office plans to take the same approach to registrations of single serial issues, and plans to issue an NPRM that, among other things, proposes that deposits provided with single serial issue applications will only satisfy the deposit requirements of section 408, and will not satisfy the mandatory deposit requirements in section 407.

    To summarize, the proposed rule would do the following things:

    (1) The rule would codify the requirement (currently found only in the Compendium) that, to be eligible for the serial group registration option, each serial issue in the group must be an “all-new” collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained collective work.

    (2) The rule would memorialize the Office's longstanding position regarding the scope of a registration for a group of serial issues—i.e., a registration for a group of serial issues covers each issue in the group, as well as the articles, photographs, illustrations, or other contributions appearing within each issue—if they are fully owned by the copyright claimant and if they were first published in those issues).

    (3) The rule would require applicants to register their serials through the Office's electronic registration system, and discontinue the existing paper application.

    (4) The rule would amend the deposit requirements by requiring applicants to upload their serials in digital form through the electronic registration system. The Office will no longer accept physical copies, such as a print copy or photocopy of each issue in the group, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium that is delivered to the Office.

    (5) Serial publishers would no longer be required to provide complimentary subscriptions to the Library as a condition for using the group registration option, and the Register would no longer revoke the privilege of using the group registration option if the applicant fails to provide complimentary subscriptions. But the rule would also make clear that electronic deposits submitted to the Office through the registration system will not satisfy the mandatory deposit requirements in section 407. Specifically, if a serial is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the serial, unless they are informed that the serial title is not needed for the Library's collections. Serials published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime.

    (6) The rule would clarify that applicants must include at least two issues in each group registration, and maintains the requirements that each issue in the group must be a work made for hire, and the author and copyright claimant for each issue must be the same person or organization. 37 CFR 202.3(b)(6)(i)(E), (F).

    (7) The rule would retain the requirement that applicants may only register serials that are “published at intervals of a week or longer” (e.g., weekly, every two weeks, monthly). The rule would also retain the requirement that all of the issues included in one application be “published in a given three month period” 7 and “in the same calendar year.” 8 To help reinforce these longstanding requirements, the rule would expressly mandate that the issues be published under the same continuing title and bear issue dates within the three-month period specified in the application.9 For similar reasons, the rule would specifically require the applicant to provide a publication date for each issue in the group.

    7 Quarterly and semi-annual publications are not eligible for this group option, because the regulations expressly state that the applicant must submit at least two issues, and all the issues must be published within a three-month period. The Office's rationale for creating the group registration option (i.e., to encourage registration of frequently published serials by reducing the burden on applicants) does not apply in the case of such infrequently published serials.

    8See 37 CFR 202.3(b)(6)(i), (i)(B), (i)(G).

    9 In this respect, the proposed rule is similar to the regulations governing the group registration options for newspapers and newsletters, which state that the issues must be published within a single calendar month and bear issue dates within that month. See 37 CFR 202.3 (b)(9)(v), 202.4(e)(4).

    (8) The proposed rule will eliminate the requirement that “[e]ach issue must have been created no more than one year prior to publication,” id. § 202.3(b)(6)(i)(G), as the Office has not monitored or enforced this requirement in practice.

    The next sections discuss those changes warranting more discussion.

    A. Only “All-New,” Discrete and Self-Contained Collective Works Eligible for Registration

    The proposed rule clarifies that each serial issue in the group must be an all-new collective work.10 A serial will be considered a collective work if it contains “a number of contributions” that constitute “separate and independent works in themselves,” and if the contributions are “assembled into a collective whole” “in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. 101 (definitions of “collective work” and “compilation”). A serial issue may qualify as an “all-new” collective work if it contains a sufficient amount of new compilation authorship. In other words, the issues included in the group cannot be derivative versions of a previously published issue or a serial that is frequently modified, updated, or adapted.

    10 Currently, this requirement appears only in the Compendium. See Compendium sec. 1109.2.

    To be eligible for this group registration option, the serial must also be fixed and distributed as a discrete, self-contained collective work.11 An applicant may satisfy this requirement if the serial as a whole is fixed in a tangible medium of expression, and the content of each issue does not change once it has been distributed. For example, a publisher that emails an electronically printed (“ePrint”) serial to its subscribers may satisfy this requirement if each issue contains a fixed selection of content, such as a PDF version of a physical publication.

    11 Similar language appears in the Compendium. See Compendium sec. 1113.

    By contrast, a website would not satisfy this requirement. Websites typically add, archive, and/or replace content on a continuing basis. As such, they are not fixed and distributed as discrete, self-contained collective works. Moreover, these updates are rarely distributed on an established schedule, and rarely contain numerical or chronological designations distinguishing one update from the next. For this reason, websites are not considered “serials” for purposes of registration.12

    12See 37 CFR 202.3(b)(1)(v) (defining a “serial” as “a work issued or intended to be issued in successive parts bearing numerical or chronological designations”); see also 75 FR 3863, 3865 (Jan. 25, 2010) (noting that works “that are constantly updated with no demarcations between particular, discrete issues of the publication” are not considered serials).

    Although the proposed rule does not extend to websites, the Office is aware of the need for establishing new and updated practices for examining and registering online works. See, e.g., Comments of Newspaper Association of America (urging the Office to create a group registration option for newspaper websites), available at http://www.copyright.gov/rulemaking/online-only/comments/naa.pdf; Comments of the National Writers Union, Western Writers of America, and American Society of Journalists and Authors (urging the Office to create a group registration option for multiple works published online on different dates), available at https://www.regulations.gov/contentStreamer?documentId=COLC-2016-0005-0009&attachmentNumber=1&disposition=attachment&contentType=pdf; see also 81 FR 86634, 86636-37 (Dec. 1, 2016); 81 FR 86643, 86646 (Dec. 1, 2016). The Office is considering these issues and will take them into account when developing its priorities for future upgrades to the electronic registration system.

    B. Scope of Protection

    The proposed rule clarifies that a registration for a group of serials covers each issue in the group, and each issue will be registered as a separate collective work. In other words, the group registration is treated as the legal equivalent of a separate collective work registration for each serial issue.

    As a general rule, a registration for a collective work covers the individual contributions contained within that work if they are fully owned by the copyright claimant and if they were first published in that work.13 Because a registration for a group of serial issues effectively is treated as a separate collective work registration for each issue in the group, a group registration also covers the articles, photographs, illustrations, or other contributions appearing within each issue—if they are fully owned by the copyright claimant at the time the application was filed and if they were first published in those issues. See 55 FR at 50557 (stating that publishers may “register claims in individual contributions published for the first time in the serial, if the publisher has obtained ownership of the copyright”). By contrast, if an issue contains contributions that are not fully owned by the copyright claimant, and/or contributions that were previously published, the registration will not extend to those works. See Morris v. Business Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (“Unless the copyright owner of a collective work also owns all the rights in a constituent part, a collective work registration will not extend to the constituent part.”), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010).

    13See, e.g., Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014); Morris v. Bus. Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001); Compendium secs. 509.1, 509.2; see also 17 U.S.C. 201(c) (“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work . . . .”).

    With respect to the information collected as part of a group registration and examination practices, the Office must balance the public interest in creating a meaningful record (i.e., collecting information regarding each individual contribution within a serial issue) with the relative burden on applicants wishing to participate in the registration system. When an applicant submits up to three months of serial issues for registration, it is difficult to collect granular information concerning the individual articles, photographs, and other component works within each issue. Requiring applicants to identify the author and title of each individual contribution would impose a significant burden both on applicants and the Office alike. This would discourage registration, which in turn, would diminish the value of the Office's public record. Imposing these burdens would also be contrary to the Congressional purpose of providing the Office with the authority to create group registration options: To ease the registration of certain works.

    Accordingly, the Office's current application form for a group of serial issues does not allow for the applicant to expressly assert a claim in the individual contributions appearing within each issue, provide titles, authors, or other identifying information for each contribution, or identify component works created by a third party and transferred to the claimant by written agreement. But the Office foresees the future possibility of applicants submitting metadata for the component works appearing within each issue, and the possibility of the Office incorporating this information into the registration record. If this becomes feasible once the Office implements its next-generation registration system, it may require this type of information as a condition for using this group registration option.

    When the examiner reviews each serial issue, he or she will examine the issue as a whole to determine if it contains sufficient compilation authorship to warrant registration. And the examiner will review the serial issue to determine whether it contains “a number of contributions” constituting “separate and independent works in themselves.” 17 U.S.C. 101 (definition of “collective work”). When the Office issues a group registration, the certificate will identify the title, author, and claimant for each serial issue in the group, but it will not identify the titles, authors, or claimants for the individual contributions appearing within those issues.

    The scope of protection for a group registration issued under the proposed rule will have two consequences in infringement actions. First, a group registration may be used to satisfy the statutory requirements for instituting an infringement action involving any of the serial issues that were included within the group, or any of the individual contributions appearing within those issues—provided that the claimant fully owned those contributions at the time the application for registration is submitted, and provided that the contributions were first published in one of those issues.14 17 U.S.C. 411(a).

    14 Alternatively, a plaintiff may satisfy this statutory requirement if the Office refused registration, provided that the plaintiff serves a copy of the complaint on the Register of Copyrights. 17 U.S.C. 411(a).

    Second, the proposed rule also clarifies that the group as a whole is not considered a compilation, a collective work, or a derivative work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple collective works with one application and one filing fee. The chronological selection, coordination, and arrangement of the issues within the group is entirely dictated by the regulatory requirements for this option. Likewise, when a group of serial issues are combined for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply collecting a month of issues and arranging them in chronological order. 17 U.S.C. 101 (definition of “derivative work”).

    C. Online Registration Requirement

    The current regulation states that applicants may register their works with the online application designated for groups of serial issues, or in the alternative, they may submit a paper application using Form SE/Group. 37 CFR 202.3(b)(6)(v). Under the proposed rule, applicants will be required to use the electronic application designated for a group of serial issues as a condition for seeking a group registration. The Office will no longer accept groups of serial issues submitted for registration on paper using Form SE/Group.15 If, after the effective date of this rule, such paper applications are received, the Office will refuse registration and instruct the applicant to resubmit the claim through the electronic system. The Office invites comment on this proposal, including whether the Office should eliminate the paper application for serial issues, phase it out after a specified period of time, or continue to offer Form SE/Group for applicants who prefer to use the paper-based system.

    15 Because the Office is proposing to eliminate Form SE/Group and require applicants to submit their claims through the electronic registration system, the term “SE/Group” will soon be obsolete. Going forward, the Office will refer to this registration option as “GR/SE,” which stands for “group registration of serials.” In addition, the Office recently issued a final rule that requires applicants to file an online application in order to correct or amplify the information set forth in a basic registration for any work capable of being registered through the electronic system, rather than filing a paper application. 82 FR 27424 (June 15, 2017). This online filing requirement will apply to supplementary registrations for groups of serial issues—even if the issues were originally registered using Form SE/Group. See 81 FR 86656, 86657 n.3 (Dec. 1, 2016).

    The Office's decision to offer a group option is entirely discretionary, and Congress gave the Office broad authority to establish the requirements for these types of claims. 17 U.S.C. 408(c)(1). Currently, the vast majority of the claims submitted on Form SE/Group require correspondence or other action from the Office, which increases overall pendency and contributes to the Office's backlog of pending claims. For example, applicants routinely file claims that are not eligible for this group option, fail to provide information expressly requested on the form, or add extraneous information that is not requested. In each case, however, the Office must first scan these paper applications into the registration system and input the relevant information by hand before an examiner can reject the application as having been improperly filed. This is a cumbersome, labor-intensive process. In many cases, the Office must contact the applicant to request additional information or permission to correct the application.

    Addressing these issues imposes significant burdens on the Office's limited resources, and has had an adverse effect on the examination of other types of works within the Literary Division of the Registration Program. Eliminating the paper application should mitigate many of these problems. Among other improvements, the online application contains automated validations that prevent applicants from submitting applications that fail to comply with the eligibility requirements for this group option, such as submitting a single issue rather than a group of two or more issues.

    For these reasons, the Office believes that requiring applicants to submit online applications is necessary to improve the overall efficiency of the group registration process.

    D. Digital Registration Deposits

    As noted above, the proposed rule will require applicants to submit a complete copy of each serial issue in the group in digital form and upload each issue through the electronic system. Requiring applicants to upload digital copies to the electronic system will increase the efficiency of the group registration process. The Office does not need physical copies to examine a serial for copyrightable authorship, or to determine whether the applicant satisfied the formal and legal requirements for this group option. See 17 U.S.C. 410(a) (providing that the Register of Copyrights must determine whether “material deposited [for registration] constitutes copyrightable subject matter”). Electronic submissions also take less time to process, and are easier to track and handle than physical copies. A registration specialist can examine a digital copy as soon as it has been uploaded to the electronic registration system. By contrast, when an applicant submits an online application and mails a physical deposit to the Office, it may take weeks to connect the application with the correct deposit. In addition, each copy must be moved multiple times during the examination process.

    Requiring digital uploads may also provide serial publishers with certain legal benefits. When the Office registers a group of serials and issues a certificate of registration, the effective date of registration is the date on which the Office received the application, filing fee, and deposit in proper form. When an applicant uploads a digital copy of the deposit to the electronic system, the Office typically receives the application, filing fee, and deposit on the same date. By contrast, when an applicant sends physical copies to the Office the deposit may arrive long after the date that the application and filing fee were received—thereby establishing a later effective date of registration.

    Moreover, if an applicant uploads a complete copy of the serial through the electronic registration system, the Office will retain a digital copy of those issues in its repository of electronic deposits. Digital copies are much easier to store and retrieve. This is critical if the copyright owner or other interested parties need to obtain a copy of a particular issue for use in litigation or another legitimate purpose.16

    16 The Office recognizes that some publishers may not have a digital copy of their issues or may find it difficult to create a digital copy for the purpose of seeking a group registration. The Office will address these concerns on a case-by-case basis. If an applicant is unable to upload a particular newsletter to the electronic system, the applicant may request special relief from the deposit requirements under 37 CFR 202.20(d).

    E. Mandatory Deposit

    Although the proposed rule eliminates the requirement to provide subscriptions or microfilm as a condition of using the group registration option, serials will still be subject to the mandatory deposit requirement under section 407.

    To assist publishers with complying with these mandatory deposit requirements, the proposed rule amends the Office's mandatory deposit regulations, 37 CFR 202.19, to provide specific rules for serials that are published in the United States in a physical format, or in both a physical and electronic format.17 Publishers will be expected to provide the Library with two complimentary subscriptions to such serials, unless they have been informed by CAD that the serial title is not needed for the Library's collections. If subscription copies are not received within three months after publication of each issue, CAD may issue a written demand for ongoing subscriptions to that publication. The failure to provide subscription copies when demanded by the Office would subject the owner to penalties under section 407.

    17 The same proposal is being made as part of the notice of proposed rulemaking relating to group registration of newsletters.

    No change is being made to the mandatory deposit scheme for electronic-only serials; such serials will continue to be subject to the existing, demand-based mandatory deposit scheme.18

    18See 37 CFR 202.19(c)(5), 202.24(a).

    IV. Conclusion

    The proposed rule will encourage broader participation in the registration system, and increase the efficiency of the process for both the Office and copyright owners alike, while providing the Library with a means for adding serials to its collections through mandatory deposit. The Office invites public comment on all of these proposed changes.

    List of Subjects 37 CFR Part 201

    Copyright, General Provisions.

    37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

    Proposed Regulation

    For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702.

    2. Amend § 201.1 by revising paragraph (c)(6) to read as follows:
    § 201.1 Communication with the Copyright Office.

    (c) * * *

    (6) Mandatory Deposit Copies. Mandatory deposit copies of published works submitted for the Library of Congress under 17 U.S.C. 407 and § 202.19 of this chapter (including complimentary subscriptions to serial publications), and newspaper microfilm copies submitted under § 202.4(e) of this chapter, should be addressed to: Library of Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 Independence Avenue SE, Washington, DC 20559-6600.

    3. Amend § 201.3 by revising paragraph (c)(6) to read as follows:
    § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division.

    (c) * * *

    (6) Registration of a claim in a group of serials (per issue, minimum two issues)

    PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 4. The authority citation for part 202 continues to read as follows: Authority:

    17 U.S.C. 408(f), 702.

    § 202.3 [Amended]
    5. Amend § 202.3 by removing and reserving paragraph (b)(6). 6. Amend § 202.4 as follows by adding paragraph (d) and revising the first sentence of paragraph (n) to read as follows.
    § 202.4 Group Registration.

    (d) Group registration of serials. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of serial issues may be registered with one application, the required deposit, and the filing fee required by § 201.3(c) of this chapter, if the following conditions are met:

    (1) Eligible works. (i) All the issues in the group must be serials.

    (ii) The group must include at least two issues.

    (iii) Each issue in the group must be an all-new collective work that has not been previously published, each issue must be fixed and distributed as a discrete, self-contained collective work, and the claim in each issue must be limited to the collective work.

    (iv) Each issue in the group must be a work made for hire, and the author and claimant for each issue must be the same person or organization.

    (v) All of the issues in the group must be published at intervals of a week or longer.

    (vi) All of the issues must be published within three months, under the same continuing title, within the same calendar year, bearing issue dates within those months, and the applicant must specify the date of publication for each issue in the group.

    (2) Application. The applicant must complete and submit the online application designated for a group of serial issues. The application may be submitted by any of the parties listed in § 202.3(c)(1).

    (3) Deposit. The applicant must submit one complete copy of each issue that is included in the group. The issues must be submitted in digital form, and each issue must be contained in a separate electronic file. The applicant must use the file-naming convention and submit digital files in accordance with instructions specified on the Copyright Office's website. The files must be submitted in Portable Document Format (PDF), they must be assembled in an orderly form, and they must be uploaded to the electronic registration system as individual electronic files (i.e., not .zip files). The files must be viewable and searchable, contain embedded fonts, and be free from any access restrictions (such as those implemented through digital rights management) that prevent the viewing and examination of the work. The file size for each uploaded file must not exceed 500 megabytes, but files may be compressed to comply with this requirement. Copies submitted under this paragraph will be considered solely for the purpose of registration under section 408 of title 17 of the United States Code, and will not satisfy the mandatory deposit requirement under section 407 of title 17 of the United States Code.

    (n) * * * When the Office issues a group registration under paragraph (d) or (e) of this section, the registration covers each issue in the group and each issue is registered as a separate collective work. * * *

    7. Amend § 202.19 by adding paragraph (d)(2)(x) to read as follows:
    § 202.19 Deposit of published copies or phonorecords for the Library of Congress.

    (d) * * *

    (2) * * *

    (x) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library's collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library's collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the newsletter, the International Standard Serial Number (“ISSN”) that has been assigned to the newsletter (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions.

    § 202.20 [Amended]
    8. Amend § 202.20 by removing and reserving paragraph (c)(2)(xvii). Appendix B to Part 202 [Amended] 9. In Appendix B to Part 202, remove the sentence “(For works first published only in a country other than the United States, the law requires the deposit of the best edition as first published.)” and replace with “(For works first published only in a country other than the United States, the law requires the deposit of the work as first published.)” Dated: May 10, 2018. Sarang Vijay Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2018-10422 Filed 5-16-18; 8:45 am] BILLING CODE 1410-30-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2018-3] Group Registration of Newsletters AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Copyright Office is proposing to update its regulation governing the group registration option for newsletters, which are defined in part as a class of serials that are published at least two days each week. The proposed rule would make a number of changes to reflect current Office practices, promote efficiency of the registration process, and encourage broader participation in the registration system by reducing the burden on applicants. Specifically, the proposed rule would require applicants to file an online application, rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. The proposed rule would amend the definition of “newsletter,” and eliminate the requirement that each issue must be a work made for hire and the requirement that the applicants submit their claims within a certain period of time. In addition, the proposed rule would remove the requirement that the claimant provide the Library with complimentary subscriptions to or microfilm of the newsletter as a condition for using the group registration option. Under the proposed rule, however, newsletter publishers would remain subject to the mandatory deposit requirement. Specifically, if the newsletter is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the newsletter, unless it is informed that the newsletter is not needed for the Library's collections. Newsletters published only in electronic form would continue to be subject to the general, existing on-demand mandatory deposit regime for electronic serials. The Office invites public comment on these proposed changes.

    DATES:

    Comments must be made in writing and must be received in the U.S. Copyright Office no later than June 18, 2018.

    ADDRESSES:

    For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at https://www.copyright.gov/rulemaking/group-newsletters/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at [email protected] or [email protected]; or Cindy Paige Abramson, Assistant General Counsel, by telephone at 202-707-0676, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    When Congress enacted the Copyright Act of 1976 (the “Act”), it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposits required for each such class. See 17 U.S.C. 408(c). In addition, Congress granted the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” See 17 U.S.C. 408(c)(1). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection. H.R. Rep. No. 94-1476, at 154 (1976); reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975). Pursuant to the authority granted by Congress, the Register has issued regulations permitting the U.S. Copyright Office (the “Office”) to issue a group registration for limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5), (6), (9), 202.4.

    II. The Existing Group Registration Option for Newsletters

    In 1995, the Office promulgated a rule offering a group registration option for newsletter publishers, concluding that it would further Congress's desire to promote registration of works that may be too burdensome and expensive to be registered separately.1 Under that rule, a “newsletter” is defined as a “a serial published and distributed by mail or electronic media (online or telefacsimile), or in any medium,” with publication occurring “at least two days each week” and “contain[ing] news or information of interest chiefly to a special group (for example, trade and professional associations, corporate in-house groups, schools, colleges, or churches).” 37 CFR 202.3(b)(9)(i). In contrast, the option for group registration of serials is limited to less-frequently published serials—i.e., those published at intervals of one week or longer. Id. § 202.3(b)(6)(i).

    1See 60 FR 15874 (Mar. 28, 1995). Before that rule, the Office had offered group registration options for serials and newspapers, but newsletters could not be registered under those options because they did not meet the relevant requirements, most notably the requirements related to frequency of publication. 57 FR 39615 (Sept. 1, 1992); 55 FR 50556 (Dec. 7, 1990). The Office recently issued a final rule updating the procedures for group registration for newspapers, to similarly streamline the registration process, and intends to do the same for serials. See 83 FR 4144 (Jan. 30, 2018).

    The current group registration option for newsletters has a number of requirements. Specifically, the applicant must complete and submit a paper application using Form G/DN, include at least two newsletter issues in each group, and “designate the first and last day that [the] issues in the group were published.” 37 CFR 202.3(b)(9), (b)(9)(viii). In addition, the newsletter issues must be “essentially all-new collective works or all-new issues that have not been published before,” “bear issue dates within a single calendar month under the same continuing title,” be works made for hire, and have the same person or organization as the author and claimant for all issues in the group. Id. § 202.3(b)(9)(ii)-(v). Form G/DN also indicates that newsletters are customarily sold by subscription as opposed to on newsstands, although this requirement is not mentioned in the regulation itself. See 60 FR at 15875.

    To satisfy the registration deposit requirements for this group option, the applicant must submit one complete copy of each issue that is included in the group. 37 CFR 202.3(b)(9)(vi)(A). The current regulation also states that if the newsletter is one that has been selected for the Library's collections, the claimant is required to provide either “as many as two complimentary subscriptions of the newsletter in the edition most suitable to the Library's needs,” or “a single positive, 35 mm silver halide microfilm meeting the Library's best edition criteria that includes all issues published as final editions in the designated calendar month,” whichever the Library prefers. Id. § 202.3(b)(9)(vi)(B). This provision has been in effect for more than fifteen years, but relatively few newsletters have been selected for the Library's collection.

    Finally, the current regulation states that registration must be “sought within three months after the publication date of the last issue included in the group.” Id. § 202.3(b)(9)(vii). The deadline is intended to ensure that the Library receives these types of works in a timely manner. 64 FR 19522, 29523 (Jun. 1, 1999). If the claimant is unable to provide subscription copies or microfilm, or is unable to do so within three months after publication, the regulation states that each issue may be registered on an individual basis by submitting a paper application on Form SE or Short Form SE. 37 CFR 202.3(b)(9)(vi)(C).

    III. The Current Rule Governing Mandatory Deposit of Newsletters

    Section 407 of the Copyright Act states that if a work is published in the United States, the owner of copyright or the owner of the exclusive right of publication must affirmatively deposit two copies of the “best edition” of that work with the Library within three months after publication. 17 U.S.C. 407(a)-(b). This is known as the “mandatory deposit” requirement. As a general rule, publishers may satisfy this requirement by registering their works with the Office, or by sending copies to the Copyright Office's Copyright Acquisitions Division without seeking a registration. If a publisher fails to comply with the mandatory deposit requirement, the Office may issue a written demand for those works, and if the required copies are not received within three months thereafter, the copyright owner or owner of the exclusive right of publication in that work may be subject to fines or other monetary liability. Id. 407(d). The Office has the authority to establish regulations governing mandatory deposit, including regulations to exempt any categories of material from these requirements. See id. 407(c), 702.

    Newsletters published in a physical format (including works published both in physical and electronic formats) are subject to these affirmative mandatory deposit requirements. 37 CFR 202.19(c)(5). Electronic-only newsletters are subject to a separate mandatory deposit regime. Specifically, in 2010, the Office adopted an interim rule that established a different process for serials published solely in electronic form. (Newsletters, as a type of serial, are subject to these rules.) That interim rule established a general exemption for most “[e]lectronic works published in the United States and available only online,” except for serials published solely in electronic formats (i.e., “online-only” serials). Id. For online-only serials, there is no affirmative obligation to deposit works with the Copyright Office. Instead, if the Library desires a particular serial title for its collections, the Office will issue a written demand requiring the publisher to deposit copies of that serial. Id. 202.24.

    IV. The Proposed Rule

    The existing regulations governing group registration of newsletters require updating, both to better account for current practice, and to allow the Office to streamline and modernize its registration procedures. Accordingly, the Office is proposing to amend the regulation governing the group option for newsletters to modify the eligibility requirements for this group option in several respects.

    To summarize, the proposed rule would do the following things:

    (1) The rule would clarify and expand the category of works eligible for the group registration option, including by eliminating the work-for-hire requirement, by making clear that newsletters need not be collective works, and by eliminating the three-month deadline for filing the registration application.

    (2) The rule would memorialize the Office's longstanding position regarding the scope of a registration for a group of newsletter issues—i.e., a registration for a group of newsletter issues covers each issue in the group, and if each issue constitutes a collective work, the articles, photographs, illustrations, or other contributions appearing within those issues—if they are fully owned by the copyright claimant and if they were first published in those issues.

    (3) The rule would require applicants to register their newsletters through the Office's electronic registration system, and would discontinue the existing paper application.

    (4) The rule would require applicants to upload their newsletters in digital form through the electronic registration system; the Office would no longer accept physical copies, such as a photocopy of each issue in the group, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium that is delivered to the Office.

    (5) Newsletter publishers would no longer be required to provide either subscriptions or microfilm copies for the Library's collections as a condition for using the group registration option. But the rule would also make clear that electronic deposits submitted to the Office through the registration system would not satisfy the mandatory deposit requirements in section 407, and would amend the mandatory deposit regulations to provide guidance on fulfilling those requirements. Specifically, if a newsletter is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the newsletter, unless it is informed that the newsletter is not needed for the Library's collections. Newsletters published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime.

    The next sections discuss changes warranting more discussion.

    A. Works Eligible

    The proposed rule clarifies that newsletter issues can be, but do not have to be, collective works to qualify for the group registration option. Thus, for example, a newsletter that contains a single article and a single photograph would not be considered a collective work, because it does not contain a sufficient number of contributions—but nevertheless it would still be eligible for registration as part of the group, if the rest of the eligibility requirements have been met.2 In this respect, the proposed rule differs from the corresponding group registration options for serials and newspapers. To register a group of serials or newspapers, each issue in the group must be a collective work. See 37 CFR 202.3(b)(6)(i)(C)-(E), 202.4(e)(2). By contrast, under the proposed rule, publishers may register a group of newsletters whether or not each issue satisfies the statutory definition for a collective work.

    2See H.R. Rep. No. 94-1476, at 122 (1976) (stating that a work does not qualify as a collective work “where relatively few separate elements have been brought together,” as in the case of “a composition consisting of words and music, a work published with illustrations or front matter, or three one-act plays”).

    The rule also clarifies that each newsletter issue in the group must be fixed and distributed as a discrete, self-contained work.3 An applicant may satisfy this requirement if the newsletter as a whole is fixed in a tangible medium of expression, and the content of each issue does not change once it has been distributed. For example, a publisher that mails a newsletter to its subscribers would satisfy this requirement, because the newsletter is clearly fixed and distributed in a physical format. A publisher that emails an electronic newsletter to its subscribers may satisfy this requirement if each issue contains a fixed selection of content, such as a PDF version of a physical publication. Similarly, a publisher that allows its subscribers to download a newsletter from its website may satisfy this requirement if each issue is distributed as a self-contained work and the content of each issue does not change once it has been downloaded.

    3 Similar language has appeared in the Compendium of U.S. Copyright Office Practices, Third Edition since December 2014. See Copyright Office, Compendium of U.S. Copyright Office Practices sec. 1113 (3d ed. 2017) (hereinafter the “Compendium”).

    The current regulation states that newsletter publishers must submit their claims within three months after the publication of the most recent issue in the group. 37 CFR 202.3(b)(9)(vii). The proposed rule eliminates this requirement, as it existed as a means of encouraging publishers to provide subscriptions or copies to the Library as early as possible. Since the proposed rule eliminates that requirement, the timeliness requirement can be eliminated as well, especially because the Copyright Act itself already contains a number of incentives for early registration.

    The proposed rule continues the existing requirement that the works be “all new” collective works or “all new” issues that have not been published before.4 In other words, the issues included in the group cannot be derivative versions of a previously published issue or a newsletter that is frequently modified, updated, or adapted.

    4 The current rule states that the works must be “essentially all new collective works or all new issues.” 37 CFR 202.3(b)(9)(ii) (emphasis added). The proposed rule eliminates the word “essentially,” as it is likely to cause confusion.

    The proposed rule clarifies the scope of the group registration option in various respects, including by eliminating the existing reference to “daily newsletters,” 37 CFR 202.3(b)(9), which is inaccurate, and by clarifying that a group of newsletters must “usually” be published at least two days a week, to account for occasional situations where the newsletter suspends publication (e.g., for a holiday).

    B. Scope of Protection

    The proposed rule clarifies that a registration for a group of newsletters covers each issue in the group, and each issue would be registered as a separate work. In other words, the group registration is treated as the legal equivalent of a separate registration for each newsletter issue.

    If the newsletters qualify and are claimed as collective works, then those issues would be registered as separate collective works. As a general rule, a registration for a collective work covers the individual contributions contained within that work if they are fully owned by the copyright claimant and if they were first published in that work.5 A registration for a group of newsletter issues constituting collective works is effectively treated as a separate collective work registration for each issue in the group. Thus, in such cases, the group registration also covers the articles, photographs, illustrations, or other contributions appearing within those issues—if they are fully owned by the copyright claimant at the time the application was filed, and if they were first published in those issues. By contrast, if an issue constituting a collective work contains contributions that are not fully owned by the copyright claimant, and/or contributions that were previously published, the registration will not extend to those works. See Morris v. Business Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (“Unless the copyright owner of a collective work also owns all the rights in a constituent part, a collective work registration will not extend to the constituent part.”), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010).

    5See, e.g., Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014); Morris v. Bus. Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001); Compendium secs. 509.1, 509.2; see also 17 U.S.C. 201(c) (“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work . . . .”).

    With respect to the information collected as part of a group registration and examination practices, the Office must balance the public interest in creating a meaningful record (i.e., collecting information regarding each individual contribution within a newsletter issue) with the relative burden on applicants wishing to participate in the registration system. When an applicant submits multiple issues, it is difficult to collect granular information concerning the individual articles, photographs, and other component works within each issue. Requiring applicants to identify the author and title of each individual contribution would impose a significant burden both on applicants and the Office alike. This would discourage registration, which in turn, would diminish the value of the Office's public record. Imposing these burdens would also be contrary to the Congressional purpose of providing the Office with the authority to create group registration options: To ease the registration of certain works.

    Accordingly, the Office's application to register a group of newsletter issues does not contain spaces where the applicant can provide titles, authors, or other identifying information for each contribution, or identify component works created by a third party and transferred to the claimant by written agreement. But the Office foresees the future possibility of applicants submitting metadata for the component works appearing within each issue, and the possibility of the Office incorporating this information into the registration record. If this becomes feasible once the Office implements its next-generation registration system, it may require this type of information as a condition for using this group registration option.

    If each issue appears to be a collective work, the examiner will examine the issue as a whole to determine if it contains sufficient compilation authorship to warrant registration as a collective work. And the examiner will review the issue to determine whether it contains “a number of contributions” constituting “separate and independent works in themselves” 17 U.S.C. 101 (definition of “collective work”). When the Office issues a group registration, the certificate will identify the title, author, and claimant for each newsletter issue in the group, but it will not identify the titles, authors, or claimants for the individual contributions appearing within those issues.

    The scope of protection for a group registration issued under the proposed rule will have several consequences in infringement actions. First, a group registration may be used to satisfy the statutory requirements for instituting an infringement action involving any of the newsletter issues that were included within the group.6 17 U.S.C. 411(a). Likewise, a group registration may be used to enforce the copyright in any of the individual contributions appearing within issues constituting collective works—provided that the claimant fully owned those contributions at the time the application for registration is submitted, and provided that the contributions were first published in one of those issues.

    6 Alternatively, a plaintiff may satisfy this statutory requirement if the Office refused registration, provided that the plaintiff serves a copy of the complaint on the Register of Copyrights. 17 U.S.C. 411(a).

    Second, the proposed rule clarifies that the group as a whole is not considered a compilation, a collective work, or a derivative work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple works with one application and one filing fee. The chronological selection, coordination, and arrangement of the issues within the group is entirely dictated by the regulatory requirements for this option. Likewise, when a group of newsletter issues are combined for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply collecting a month of issues and arranging them in chronological order. 17 U.S.C. 101 (definition of “derivative work”).

    C. Online Registration Requirement

    On December 14, 2012, the Office made some modifications to its electronic registration system to allow newsletter publishers to submit their claims with the online application. Under the proposed rule, applicants would be required to use the electronic application designated for a group of newsletter issues as a condition for seeking a group registration. The Office would no longer accept groups of newsletter issues submitted for registration on paper using Form G/DN.7 If, after the effective date of this rule, such paper applications are received, the Office will refuse registration. The Office invites comment on this proposal, including whether the Office should eliminate the paper application for newsletter issues, phase it out after a specified period of time, or continue to offer Form G/DN for applicants who prefer to use the paper-based system.

    7 Because the Office is proposing to eliminate Form G/DN, and require applicants to submit their claims through the electronic registration system, the term G/DN will soon be obsolete. Going forward, the Office will refer to this option as “GRNL,” which stands for “group newsletters.” In addition, the Office recently issued a final rule that requires applicants to file an online application in order to correct or amplify the information set forth in a basic registration for any work capable of being registered through the electronic system, rather than filing a paper application. 82 FR 27424 (June 15, 2017). This online filing requirement will apply to supplementary registrations for groups of newsletter issues—even if the issues were originally registered using Form G/DN. See 37 CFR 202.6(e)(1); 81 FR 86656, 86657, n.3 (Dec. 1, 2016).

    The Office's decision to offer a group option is entirely discretionary, and Congress gave the Office broad authority to establish the requirements for these types of claims. 17 U.S.C. 408(c)(1). Currently, the vast majority of the claims submitted on Form G/DN require correspondence or other action from the Office, which increases overall pendency and contributes to the Office's backlog of pending claims. Applicants routinely file claims that are not eligible for this group option, fail to provide information expressly requested on the form, or add extraneous information that is not requested. In each case, however, the Office must first scan these paper applications into the registration system and input the relevant information by hand before an examiner can reject the application as having been improperly filed. This is a cumbersome, labor-intensive process, and if it is done incorrectly, the information must be re-entered into the system. In many cases, the Office must contact the applicant to request additional information or permission to correct the application.

    Addressing these issues imposes significant burdens on the Office's limited resources, and has had an adverse effect on the examination of other types of works within the Literary Division of the Registration Program. Eliminating the paper application should mitigate many of these problems. Among other improvements, the online application contains automated validations that prevent applicants from submitting applications that fail to comply with the eligibility requirements for this group option, such as including too many issues in the group (i.e., more than one calendar month of issues).

    For these reasons, the Office believes that requiring applicants to submit online applications is necessary to improve the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the proposed rule.

    D. Digital Registration Deposits

    As noted above, to register a group of newsletters under the proposed rule, applicants will be required to submit a complete digital copy of each issue in the group, regardless of whether the newsletter is published in a physical or electronic form and regardless of whether the newsletter is published in the United States or abroad. Requiring applicants to upload digital copies to the electronic system will increase the efficiency of the group registration process. The Office does not need physical copies to examine a newsletter for copyrightable authorship, or to determine whether the applicant satisfied the formal and legal requirements for this group option. See 17 U.S.C. 410(a) (providing that the Register of Copyrights must determine whether “material deposited [for registration] constitutes copyrightable subject matter”). Electronic submissions also take less time to process, and are easier to track and handle than physical copies. A registration specialist can examine a digital copy as soon as it has been uploaded to the electronic registration system. By contrast, when an applicant submits an online application and mails a physical deposit to the Office, it may take weeks to connect the application with the correct deposit. In addition, each copy must be moved multiple times during the examination process.

    Requiring digital uploads may also provide newsletter publishers with certain legal benefits. When the Office registers a group of newsletters and issues a certificate of registration, the effective date of registration is the date on which the Office received the application, filing fee, and deposit in proper form. When an applicant uploads a digital copy of the deposit to the electronic system, the Office typically receives the application, filing fee, and deposit on the same date. By contrast, when an applicant sends physical copies to the Office, the deposit may arrive long after the date that the application and filing fee were received—thereby establishing a later effective date of registration.8

    8 The Office recognizes that some publishers may not have a digital copy of their issues or may find it difficult to create a digital copy for the purpose of seeking a group registration. The Office proposes to address these concerns on a case-by-case basis. If an applicant is unable to upload a particular newsletter to the electronic system, the applicant may request special relief from the deposit requirements under 37 CFR 202.20(d).

    E. Mandatory Deposit

    Although the proposed rule eliminates the requirement to provide subscriptions or microfilm as a condition of using the group registration option, newsletter publishers would still generally be subject to the mandatory deposit requirement under section 407.

    To assist publishers with complying with these mandatory deposit requirements, the proposed rule amends the Office's mandatory deposit regulations, 37 CFR 202.19, to provide specific rules for all serials (a definition that includes newsletters) that are published in the United States in a physical format or in both a physical and electronic format.9 Newsletter publishers will be expected to provide two complimentary subscriptions to such newsletters, unless they have been informed by CAD that the serial title is not needed for the Library's collections. If subscription copies are not received within three months after publication of each issue, the Copyright Acquisitions Division (“CAD”) may issue a written demand for ongoing subscriptions to that publication. The failure to provide subscription copies when demanded by the Office would subject the owner to penalties under section 407.

    9 The same proposal is being made as part of the notice of proposed rulemaking relating to group registration of serials.

    No change is being made to the mandatory deposit scheme for electronic-only serials; such serials will continue to be subject to the existing, demand-based mandatory deposit scheme.10

    10See 37 CFR 202.19(c)(5), 202.24(a).

    V. Conclusion

    The proposed rule, if adopted, will encourage broader participation in the registration system, and increase the efficiency of the process for both the Office and copyright owners alike, while providing the Library with a means for adding newsletters to its collections. The Office invites public comment on all these proposed changes.

    List of Subjects 37 CFR Part 201

    Copyright, General Provisions.

    37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

    Proposed Regulation

    For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702.

    2. Amend § 201.1 by revising paragraph (c)(6) to read as follows:
    § 201.1 Communication with the U.S. Copyright Office.

    (c) * * *

    (6) Mandatory Deposit Copies. Mandatory deposit copies of published works submitted for the Library of Congress under 17 U.S.C. 407 and § 202.19 of this chapter (including complimentary subscriptions to serial publications), and newspaper microfilm copies submitted under § 202.4(e) of this chapter, should be addressed to: Library of Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 Independence Avenue SE, Washington, DC 20559-6600.

    PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 3. The authority citation for part 202 continues to read as follows: Authority:

    17 U.S.C. 408(f), 702.

    § 202.3 [Amended]
    4. Amend § 202.3 by removing and reserving paragraph (b)(9). 5. Amend § 202.4 by adding paragraph (f) and a new sentence after the first sentence of paragraph (n) to read as follows.
    § 202.4 Group Registration.

    (f) Group registration of newsletters. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of newsletter issues may be registered with one application, one filing fee, the required deposit, and the filing fee required by § 201.3(c) of this chapter, if the following conditions are met:

    (1) Eligible works.

    (A) All the issues in the group must be newsletters. For purposes of this section, a newsletter is a serial that is published and distributed by mail, electronic media, or other medium, including paper, email, or download. Publication must usually occur at least two days each week and the newsletter must contain news or information that is chiefly of interest to a special group, such as trade and professional associations, colleges, schools, or churches. Newsletters are typically distributed through subscriptions, but are not distributed through newsstands or other retail outlets.

    (B) The group must include at least two issues.

    (C) Each issue in the group must be an all-new issue or an all-new collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained work.

    (D) The author and claimant for each issue must be the same person or organization.

    (E) All the issues in the group must be published under the same continuing title, they must be published within the same calendar month and bear issue dates within that month, and the applicant must identify the earliest and latest date that the issues were published during that month.

    (2) Application. The applicant must complete and submit the online application designated for a group of newsletter issues. The application may be submitted by any of the parties listed in § 202.3(c)(1).

    (3) Deposit. The applicant must submit one complete copy of each issue that is included in the group. The issues must be submitted in digital form, and each issue must be contained in a separate electronic file. The applicant must use the file-naming convention and submit digital files in accordance with instructions specified on the Copyright Office's website. The files must be submitted in Portable Document Format (PDF), they must be assembled in an orderly form, and they must be uploaded to the electronic registration system as individual electronic files (i.e., not .zip files). The files must be viewable and searchable, contain embedded fonts, and be free from any access restrictions (such as those implemented through digital rights management) that prevent the viewing and examination of the work. The file size for each uploaded file must not exceed 500 megabytes, but files may be compressed to comply with this requirement. Copies submitted under this paragraph will be considered solely for the purpose of registration under section 408 of title 17 of the United States Code, and will not satisfy the mandatory deposit requirement under section 407 of title 17 of the United States Code.

    (n) The scope of a group registration. * * * When the Office issues a group registration under paragraph (f) of this section, the registration covers each issue in the group and each issue is registered as a separate work or a separate collective work (as the case may be). * * *

    6. Amend § 202.19 by adding paragraph (d)(2)(x) to read as follows:
    § 202.19 Deposit of published copies or phonorecords for the Library of Congress.

    (d) * * *

    (2) * * *

    (x) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library's collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library's collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the newsletter, the International Standard Serial Number (“ISSN”) that has been assigned to the newsletter (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions.

    Dated: May 11, 2018. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2018-10420 Filed 5-16-18; 8:45 am] BILLING CODE 1410-30-P
    LIBRARY OF CONGRESS Copyright Royalty Board 17 CFR Part 384 [Docket No. 17-CRB-0001-BER (2019-2023)] Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III) AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Copyright Royalty Judges (Judges) publish for comment proposed regulations that set rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period January 1, 2019, through December 31, 2023.

    DATES:

    Comments and objections are due no later than June 18, 2018.

    ADDRESSES:

    You may submit comments and objections, identified by docket number 17-CRB-0001-BER (2019-2023), by any of the following methods:

    CRB's electronic filing application: Submit comments online in eCRB at https://app.crb.gov/.

    U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Overnight service (only USPS Express Mail is acceptable): Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Commercial courier: Address package to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue SE, Washington, DC 20559-6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE and D Street NE, Washington, DC; or

    Hand delivery: Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue SE, Washington, DC 20559-6000.

    Instructions: Unless submitting online, commenters must submit an original, two paper copies, and an electronic version on a CD. All submissions must include a reference to the CRB and this docket number. All submissions will be posted without change to eCRB at https://app.crb.gov/ including any personal information provided.

    Docket: For access to the docket to read submitted background documents or comments, go to eCRB, the Copyright Royalty Board's electronic filing and case management system, at https://app.crb.gov/ and search for docket number 17-CRB-0001-BER (2019-2023).

    FOR FURTHER INFORMATION CONTACT:

    Anita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    In 1995, Congress enacted the Digital Performance in Sound Recordings Act, Public Law 104-39, which created an exclusive right, subject to certain limitations, for copyright owners of sound recordings to perform publicly those sound recordings by means of certain digital audio transmissions. Among the limitations on the performance right was the creation of a statutory license for nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 114(d).

    The scope of the section 114 statutory license was expanded in 1998 upon the passage of the Digital Millennium Copyright Act of 1998 (DMCA), Public Law 105-34, which allows public performance of a sound recording when made in accordance with the terms and rates of the statutory license, by a preexisting satellite digital audio radio service or as part of an eligible nonsubscription transmission. 17 U.S.C. 114(d).

    The DMCA also created a statutory license for the making of an “ephemeral recording” of a sound recording by certain transmitting organizations. 17 U.S.C. 112(e). This license, among other things, allows entities that transmit performances of sound recordings to business establishments to make an ephemeral recording of a sound recording for later transmission, pursuant to the limitations set forth in section 114(d)(1)(C)(iv).

    Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (Judges) to conduct proceedings every five years to determine the royalty rates and terms for “the activities described in section 112(e)(1) relating to the limitation on exclusive rights specified by section 114(d)(1)(C)(iv).” 17 U.S.C. 801(b)(1), 804(b)(2). Accordingly, the Judges published a notice commencing the current proceeding and requesting that interested parties submit petitions to participate. 82 FR 143 (Jan. 3, 2017).

    The Judges received Petitions to Participate from Mood Media Corporation, Music Choice, David Powell, David Rahn, Rockbot, Inc., Sirius XM Radio Inc., and SoundExchange, Inc. The Judges initiated the three-month negotiation period and directed the participants to submit written direct statements no later than May 14, 2018. See 17 U.S.C. 803(b)(3).

    On May 4, 2018, the Judges received a Motion to Adopt Settlement stating that all participants 1 had reached a settlement obviating the need for written direct statements or a hearing.

    1 Despite filing a Petition to Participate, David Powell did not participate in the negotiations and did not join in the agreed settlement. The Judges make no finding with regard to Mr. Powell's eligibility to participate in this proceeding. Mr. Powell may, of course, respond to this notice. To the extent Mr. Powell has an interest in the business establishment services license, he will be bound by the royalty rates and terms the Judges adopt ultimately.

    Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt royalty rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Judges for approval. The Judges must provide “an opportunity to comment on the agreement” to both participants and non-participants in the rate proceeding who “would be bound by the terms, rates, or other determination set by any agreement . . .” 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also “object to [the agreement's] adoption as a basis for statutory terms and rates.” Id.

    The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,” only “ if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.” 17 U.S.C. 801(b)(7)(A)(ii).

    Royalty rates and terms adopted pursuant to section 801(b)(7)(A) are binding on all copyright owners of sound recordings and all business establishment services making an ephemeral recording of a sound recording for the period January 1, 2019, through December 31, 2023.

    The public may comment and object to any or all of the proposed regulations contained in this notice. Comments and objections must be submitted no later than June 18, 2018.

    List of Subjects in 37 CFR Part 384

    Copyright, Digital audio transmissions, Ephemeral recordings, Performance right, Sound recordings.

    Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 384 of chapter III of title 37 of the Code of Federal Regulations as follows:

    PART 384—RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY BUSINESS ESTABLISHMENT SERVICES 1. The authority citation for part 384 continues to read as follows: Authority:

    17 U.S.C. 112(e), 801(b)(1).

    § 384.1 [Amended]
    2. In § 384.1 amend paragraph (a) by removing “January 1, 2014, through December 31, 2018” and adding “January 1, 2019, through December 31, 2023” in its place. 3. Amend § 384.3 by revising paragraph (a) to read as follows and in paragraph (b), removing “$10,000” and adding “$20,000.”
    § 384.3 Royalty fees for ephemeral recordings.

    (a) Basic royalty rate. (1) For the making of any number of Ephemeral Recordings in the operation of a Business Establishment Service, a Licensee shall pay a royalty equal to the following percentages of such Licensee's “Gross Proceeds” derived from the use in such service of musical programs that are attributable to copyrighted recordings:

    Year Rate
  • (%)
  • 2019 12.5 2020 12.75 2021 13.0 2022 13.25 2023 13.5

    (2) “Gross Proceeds” as used in this section means all fees and payments, including those made in kind, received from any source before, during or after the License Period that are derived from the use of copyrighted sound recordings during the License Period pursuant to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission to the public of a performance of a sound recording under the limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). The attribution of Gross Proceeds to copyrighted recordings may be made on the basis of:

    (i) For classical programs, the proportion that the playing time of copyrighted classical recordings bears to the total playing time of all classical recordings in the program; and

    (ii) For all other programs, the proportion that the number of copyrighted recordings bears to the total number of all recordings in the program.

    § 384.5 [Amended]
    4. In § 384.5 amend paragraph (d)(4) by removing the second comma before the word “subject”. Dated: May 11, 2018. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2018-10509 Filed 5-16-18; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0272; FRL-9978-17—Region 9] Air Plan Approval; California; San Joaquin Valley Unified Air Pollution Control District; Reasonably Available Control Technology Demonstration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) portion of the California State Implementation Plan (SIP), which applies to the San Joaquin Valley of California (“Valley”). These revisions concern the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). We are also proposing to approve a public draft version of SJVUAPCD's supplement to its 2014 RACT SIP demonstration, which contains relevant permit conditions for J.R. Simplot's Nitric Acid plant in Helm, California (CA) and negative declarations where the District concludes it has no sources subject to certain Control Techniques Guidelines (CTG) documents. We are proposing action on local SIP revisions under the Clean Air Act (CAA or “the Act”). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by June 18, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0272 at https://www.regulations.gov/, or via email to Stanley Tong, at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Tong, EPA Region IX, (415) 947-4122, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Submittal A. What documents did the State submit? B. Are there other versions of these documents? C. What is the purpose of the submitted documents? II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the submitted documents? B. Do the submitted documents meet the evaluation criteria? C. Public comment and proposed action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What documents did the State submit?

    On June 19, 2014, the SJVUAPCD adopted the “2014 Reasonably Available Control Technology (RACT) Demonstration for the 8-Hour Ozone State Implementation Plan (SIP)” (“2014 RACT SIP”), and on July 18, 2014, the California Air Resources Board (CARB) submitted it to the EPA for approval as a revision to the California SIP. On January 18, 2015, the submittal of the 2014 RACT SIP was deemed complete by operation of law.

    On May 4, 2018, CARB transmitted the District's public draft version of relevant permit conditions in a permit to operate for J.R. Simplot's Nitric Acid plant in Helm, CA and negative declarations for several CTG source categories, along with a request for parallel processing.1 The District plans to adopt negative declarations for CTGs covering magnetic wire; synthesized pharmaceutical products; pneumatic rubber tires; leaks from synthetic organic chemical polymer manufacturing industry (SOCMI) equipment; high-density polyethylene, polypropylene and polyester resins; air oxidation processes in SOCMI; reactor processes and distillation operations in SOCMI; and surface coating operations at shipbuilding and ship repair facilities.2 As noted in footnote 1 of this document, under our parallel processing procedure, the EPA proposes action on a public draft version of a SIP revision but will take final action only after the final version is adopted and submitted to the EPA for approval. In this instance, we are proposing action based on the public draft version of the “Supplement to the 2014 Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) for the 2008 8-hour Ozone Standard” (“Supplement to the 2014 RACT SIP”) submitted by CARB on May 4, 2018, and will not take final action until the final version of the Supplement to the 2014 RACT SIP is adopted and submitted to the EPA. CARB's May 4, 2018 letter indicates that the District Board is scheduled to consider approval of the Supplement to the 2014 RACT SIP on June 21, 2018, and if it is approved, CARB will submit the final package to the EPA.

    1 Under the EPA's “parallel processing” procedure, the EPA proposes rulemaking action concurrently with the state's proposed rulemaking. If the state's proposed rule is changed, the EPA will evaluate that subsequent change and may publish another notice of proposed rulemaking. If no significant change is made, the EPA will publish a final rulemaking on the rule after responding to any submitted comments. Final rulemaking action by the EPA will occur only after the rule has been fully adopted by California and submitted formally to the EPA for incorporation into the SIP. See 40 CFR part 51, appendix V. See also https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2_old/19921028_calcagni_sip_redesignation_requirements(alt).pdf.

    2 The SJVUAPCD's Governing Board is scheduled to consider adopting the Supplement to the 2014 RACT SIP, including relevant permit conditions in a permit to operate for J.R. Simplot's Nitric Acid plant in Helm, CA and several negative declarations, on June 21, 2018.

    Also included with the District's 2014 RACT SIP submittal package was a copy of its RACT demonstration for the 1997 8-hour ozone standard “2009 RACT SIP.”

    On June 16, 2016, the SJVUAPCD adopted the “2016 Ozone Plan for the 2008 8-Hour Ozone Standard” (“2016 Ozone Plan”), and on August 24, 2016, CARB submitted it to the EPA for approval as a revision to the California SIP. Chapter 3.4 of the 2016 Ozone Plan states that “the District updated the RACT evaluation and included VOC sources in the evaluation in Appendix C.” Appendix C of the 2016 Ozone Plan, which is titled, “Stationary and Area Source Control Strategy Evaluations,” includes evaluations of individual rules for RACT. On February 24, 2017, the submittal of the 2016 Ozone Plan was deemed complete by operation of law.3

    3 We are only proposing action on Chapter 3.4 and Appendix C of the 2016 Ozone Plan in order to demonstrate VOC RACT for all applicable sources for the 2008 NAAQS. We will take action on the remainder of the 2016 Ozone Plan in a separate action.

    B. Are there other versions of these documents?

    There are no previous versions of the documents described above in the SJVUAPCD portion of the California SIP for the 2008 8-hour ozone NAAQS.

    C. What is the purpose of the submitted documents?

    Volatile organic compounds (VOCs) and oxides of nitrogen (NOX) together produce ground-level ozone, smog, and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC and NOX emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as Moderate or above implement RACT for any source covered by a CTG document and for any major source of VOCs or NOX. The SJVUAPCD is subject to this requirement because it regulates an ozone nonattainment area classified as an Extreme ozone nonattainment area for the 2008 8-hour ozone NAAQS.4 Therefore, the SJVUAPCD must, at a minimum, adopt RACT-level controls for all sources covered by a CTG document and for all major non-CTG sources of VOCs or NOX within the nonattainment area that it regulates. Any stationary source that emits or has the potential to emit at least 10 tons per year (tpy) of VOCs or NOX is a major stationary source in an Extreme ozone nonattainment area (CAA section 182(e), (f), and 302(j)).

    4 40 CFR 81.305; 77 FR 30088 (May 21, 2012).

    Section III.D of the preamble to the EPA's final rule to implement the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015) discusses RACT requirements. It states in part that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that no sources in the nonattainment area are covered by a specific CTG source category, and that states must submit appropriate supporting information for their RACT submissions as described in the EPA's implementation rule for the 1997 ozone NAAQS. See 80 FR 12264, at 12278 (March 5, 2015) and 70 FR 71612, at 71652 (November 29, 2005).

    SJVUAPCD's 2014 RACT SIP contains the District's demonstration that its NOX rules implement RACT and contains a review of major stationary sources of NOX that emit or have the potential to emit at least 10 tpy of NOX. 5 The 2016 Ozone Plan contains the District's review of its NOX and VOC rules for RACT and states: “The District adopted its 2014 RACT SIP on June 19, 2014 to satisfy requirements for the 2008 8-hour ozone standard pursuant to the [EPA's] proposed 2015 Implementation Rule guidance document. The 2014 RACT SIP analysis demonstrates that the District meets or exceeds RACT for all applicable NOX source categories. In addition, in developing this attainment plan, the District updated the RACT evaluation and included VOC sources in the evaluation in Appendix C (Stationary and Area Source Control Strategy Evaluations).” 6 The Supplement to the 2014 RACT SIP contains relevant permit conditions to implement RACT for a major NOX source, J.R. Simplot's Nitric Acid plant in Helm, CA. The Supplement to the 2014 RACT SIP also contains negative declarations for several CTG source categories for which the District states it does not have stationary sources or emitting facilities in the Valley related to the CTGs.

    5 SJVUAPCD 2014 RACT SIP Chapter 3.

    6See 2016 Ozone Plan available at http://valleyair.org/Air_Quality_Plans/Ozone-Plan-2016/Adopted-Plan.pdf page 3-6.

    The submitted documents and supplemental clarifying information provide SJVUAPCD's analyses of its compliance with the CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. The EPA's technical support document (TSD) has more information about the District's submissions and the EPA's evaluations thereof.

    II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the submitted documents?

    SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NOX in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The SJVUAPCD regulates an Extreme ozone nonattainment area (see 40 CFR 81.305) so the District's rules must implement RACT.

    States should also submit for SIP approval negative declarations for those source categories for which they have not adopted CTG-based regulations (because they have no sources above the CTG recommended applicability threshold) regardless of whether such negative declarations were made for an earlier SIP.7 To do so, the submittal should provide reasonable assurance that no sources subject to the CTG requirements currently exist in the SJVUAPCD.

    7 57 FR 13498, 13512 (April 16, 1992).

    The District's analysis must demonstrate that each major source of NOX or VOCs in the nonattainment area is covered by a RACT-level rule. In addition, for each CTG source category, the District must either demonstrate that a RACT-level rule is in place, or submit a negative declaration. Guidance and policy documents that we use to evaluate CAA section 182 RACT requirements include the following:

    1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

    2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

    3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

    4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NOX Supplement), 57 FR 55620, November 25, 1992.

    5. Memorandum from William T. Harnett to Regional Air Division Directors, (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers.”

    6. “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005); and

    7. “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (80 FR 12264; March 6, 2015).

    B. Do the submitted documents meet the evaluation criteria?

    The 2014 RACT SIP and Supplement to the 2014 RACT SIP build on the District's previous RACT SIP demonstration for the 1997 8-hour ozone NAAQS, 2009 RACT SIP, 8 and cites to its ozone plan for the 2008 8-hour ozone NAAQS (“2016 Ozone Plan”). The 2014 RACT SIP includes a demonstration that major NOX sources in the Valley are covered by RACT rules, a demonstration that the District's NOX prohibitory rules satisfy RACT levels of stringency, and a statement that the District's 2016 Ozone Plan will contain additional evaluations. The 2014 RACT SIP did not contain an updated list of major VOC sources, and a demonstration that the District's VOC prohibitory rules satisfy RACT levels of stringency.9

    8 Our January 10, 2012 action (77 FR 1417) finalized a partial approval and partial disapproval of San Joaquin's RACT SIP for the 1997 8-hour ozone NAAQS. The partial disapproval was based on our conclusion that the SJVUAPCD had not demonstrated that four rules satisfy RACT: (Rules 4352 Solid Fuel Fired Boilers, 4402 Crude Oil Production Sumps, 4625 Wastewater Separators, and 4682 Polystyrene, Polyethylene and Polypropylene Products Manufacturing), and for which the EPA had not yet approved three additional rules into the SIP as satisfying RACT: (Rules 4566 Organic Material Composting, 4694 Wine Fermentation, and Fumigant VOC Regulations—California Department of Pesticide Regulation). These rules were subsequently approved as satisfying RACT [Rule 4352: 77 FR 66548 (November 6, 2012); Rule Rules 4402 and 4625: 77 FR 64427 (October 22, 2012); Rule 4682; 77 FR 58312 (September 20, 2012); Rule 4566: 77 FR 71129 (November 29, 2012); Rule 4694: 77 FR 71109 (November 29, 2012); and Fumigation: 77 FR 65294 (October 26, 2012)].

    9 The EPA's proposed Implementation Rule for the 2008 8-Hour Ozone NAAQS, June 6, 2013 (78 FR 34178), solicited comments on modifying existing guidance to provide additional flexibility where VOC reductions may have limited impact. Although the EPA did not ultimately adopt this approach (see 80 FR 12264, at 12279; March 6, 2015), the deadline for submitting RACT SIPs was prior to the date that the EPA finalized its SIP Implementation Rule. Instead of submitting a RACT evaluation of its VOC rules in the 2014 RACT SIP, the District submitted an analysis purporting to demonstrate that the nonattainment area is one in which VOC reductions would have limited impact. Because the EPA did not finalize this approach, we are not evaluating this part of the District's submission.

    Chapter 3.4 of the 2016 Ozone Plan states that in developing its attainment plan, the District updated its RACT evaluation and included VOC sources in the evaluation in Appendix C of the 2016 Ozone Plan. Accordingly, we evaluated these submissions together to determine whether the District has in place RACT-level rules or negative declarations for each required category.

    1. Efforts To Identity Non-CTG Major Sources Within the District a. SJVUAPCD Action

    For NOX sources, SJVUAPCD states in its 2014 RACT SIP that it reviewed its database of current Permits to Operate (PTO) to identify facilities that have the potential to emit at least 10 tons per year of NOx. Table 4 of the 2014 RACT SIP lists the facility name, the type of operation or processes occurring at the facility, and the SIP rule(s) that apply to operations at the facility.

    For VOC sources, although the 2014 RACT SIP did not contain an updated list of major VOC sources, the District's submittal included a copy of the 2009 RACT SIP, which contained a list of major VOC sources as of 2009. SJVUAPCD subsequently provided a list of additional major stationary sources of VOC since its 2009 RACT SIP. 10

    10 Email dated May 4, 2018 from Chay Thao (SJVUAPCD) to Stanley Tong (EPA), RE: major VOC sources in SJ since 2009 RACT SIP. See also 2009 RACT SIP, chapter 3, available at http://valleyair.org/Air_Quality_Plans/docs/RACTSIP-2009.pdf.

    b. The EPA's Evaluation

    For major stationary sources of NOX, we reviewed CARB's 2014 emissions inventory database and determined that there were four stationary sources with NOX emissions greater than 10 tpy that were not included in Table 4 of the District's 2014 RACT SIP. To determine if these sources were subject to RACT rules, we searched our internal database and reviewed the facilities' PTOs to identify what equipment was generating NOX emissions and whether there was an associated SIP rule. We concluded that each of the facilities' major stationary source NOX producing operations were subject to RACT rules with the exception of J.R. Simplot's Nitric Acid plant in Helm, CA. The SJVUAPCD is submitting, in its parallel processing request, as Attachment A to the Supplement to the 2014 RACT SIP, the relevant permit conditions for J.R. Simplot's PTO to correct this problem. We reviewed the proposed permit conditions, including the NOX limits, continuous emissions monitoring and data quality requirements, and recordkeeping and reporting requirements and conclude they implement NOX RACT.

    For major non-CTG stationary sources of VOC, we reviewed the District's list of major VOC sources in its 2009 RACT SIP, and the two additional major sources of VOC subsequently identified by the District. Based on our review, we conclude that these major VOC sources are covered by rules that implement RACT. We also reviewed CARB's 2014 emissions inventory database and determined that there were several stationary sources with VOC emissions greater than 10 tpy that were not listed in the District's 2009 RACT SIP and therefore appear to be “new” major sources since the District's 2009 RACT SIP. Based on a review of the facilities' description as found through an internet search and/or their Standard Industrial Classification (SIC) code, many of these new major sources appear to be related to composting, wineries, or petroleum production, and one source is a commercial printer. We determined that all these sources are already covered by SIP rules that implement RACT. Additional information regarding the EPA's evaluation can be found in the TSD.

    2. The Bases for Concluding Local Rules Implement RACT a. SJVUAPCD Action

    For NOX sources, Chapter 4 of the 2014 RACT SIP states that the District conducted “a literature review and evaluation of the District's stationary and area source regulations that control NOX emissions to ensure that all District NOX prohibitory rules satisfy RACT requirements.” It also states that the District compared “. . . each District rule against federal rules, state regulations, and comparable rules from California's most technologically progressive air districts. The applicability, stringency, and enforceability of every District NOX rule was reviewed to ensure all rules meet or exceed federal RACT requirements.” 11

    112014 RACT SIP at Chapters 2.2 and 4.

    For VOC sources, Chapter 2.2 of the 2014 RACT SIP states that “[a]lthough the District's VOC rules will not be evaluated as part of the 2014 RACT SIP, each regulation was evaluated in depth for the 2009 RACT SIP.” As stated earlier, the District subsequently submitted an updated RACT analysis of its VOC rules in Appendix C of its 2016 Ozone Plan.

    b. The EPA's Evaluation

    The District must submit a RACT certification or a negative declaration for each CTG source category, and must demonstrate that each major stationary source of NOX or VOC in the District is covered by a rule that implements RACT-level controls. The fact that the EPA found that a rule met RACT in a past RACT SIP evaluation is not, by itself, sufficient to establish that the rule still meets RACT, because what is reasonably available changes over time. However, our approval of the 2009 RACT SIP indicates that RACT rules were in place for the required sources as of 2009, and in concert with the District's updated RACT analysis in the 2014 RACT SIP and Appendix C of its 2016 Ozone Plan, we agree with the District's conclusion that rules that met RACT in 2009 continued to meet RACT in 2014.

    1. NOX Rules

    The 2014 RACT SIP conducts a RACT analysis and concludes that the District's rules for all major sources meet RACT. We agree with this conclusion based on our review of the District's analysis of relevant rules in the 2014 RACT SIP, 2016 Ozone Plan, a comparison of specific rules against rules in other air districts, and a comparison against federal regulations and guidance documents, where appropriate. The details of our evaluation are provided in the TSD, including a more focused evaluation of Rule 4103—Open Burning, Rule 4311—Flares, and Rule 4702—Internal Combustion Engines.

    2. VOC Rules

    The 2016 Ozone Plan, Appendix C, concludes that the District's rules meet RACT for all applicable rules. We agree with this conclusion based on our review of the District's analysis of relevant rules in the 2016 Ozone Plan, Appendix C, the 2013 Plan for the Revoked 1-hour ozone standard, the 2009 RACT SIP, and additional explanatory materials provided by the District and found in the docket for this action. The details of our evaluation are provided in the TSD, including a more focused evaluation of Rule 4402—Crude Oil Production Sumps, Rule 4566—Organic Material Composting Operations, Rule 4624—Transfer of Organic Liquid, Rule 4653—Adhesives and Sealants, Rule 4409—Components at Light Crude Oil Production Facilities, Natural Gas Production Facilities, and Natural Gas Processing Facilities, Rule 4605—Aerospace Assembly and Component Coating Operations, and Rule 4621—Gasoline Transfer into Stationary Storage Containers, Delivery Vessels, and Bulk Plants.

    3. Negative Declarations for Source Categories Where There Are No Facilities Subject to a CTG

    In lieu of adopting RACT rules, Districts can adopt negative declarations for CTG source categories if there are no sources in the District covered by the CTG.

    The District's parallel processing request states that it “previously adopted Negative Declarations for CTGs . . . for Shipbuilding and Ship Repair Operations, Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products, and Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires . . . and is confirming that the Negative Declarations adopted previously are still valid.” The District's parallel processing request also proposes to adopt the following negative declarations because the District concludes, based on a review of its permitted sources, SIC codes, and internet searches that there are no stationary sources or emitting facilities related to the CTG source categories listed in Table 1. The EPA searched CARB's emissions inventory database and verified that there do not appear to be facilities in the SJVUAPCD that are subject to these CTGs. We believe that these five new negative declarations, and three reaffirmed negative declarations are consistent with the relevant policy and guidance regarding RACT.

    Table 1—Negative Declarations—Parallel Processing CTG document No. Title EPA-450/2-77-033 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. EPA-450/2-78-029 Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products. EPA-450/2-78-030 Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. EPA-450/3-83-006 Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. EPA-450/3-83-008 Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA-450/3-84-015 Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manufacturing Industry. EPA-450/4-91-031 Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Organic Chemical Manufacturing Industry. EPA-453/R-94-032 Alternative Control Technology Document—Surface Coating Operations at Shipbuilding and Ship Repair Facilities. 61 FR-44050 8/27/96 Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface Coating).

    Our TSD has more information on our evaluation of the submitted 2014 RACT SIP, Supplement to the 2014 RACT SIP (J.R. Simplot permit to operate and negative declarations), and 2016 Ozone Plan—Chapter 3.4 and Appendix C.

    C. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the 2014 RACT SIP, Supplement to the 2014 RACT SIP (relevant permit conditions for the J.R. Simplot Nitric Acid plant in Helm, CA and negative declarations), and 2016 Ozone Plan Chapter 3.4 and Appendix C, because we believe they collectively fulfill the RACT SIP requirements under CAA sections 182(b) and (f) and 40 CFR 51.1112 for the 2008 ozone NAAQS. As noted above, our proposed action also relies upon our evaluation of the public draft version of the relevant permit conditions for the J.R. Simplot Nitric Acid plant in Helm, CA and on the negative declarations planned for adoption by the SJVUAPCD in June 2018, which we will not take final action on until they are adopted and submitted to us as a revision to the California SIP. If the Supplement to the 2014 RACT SIP that we have evaluated were to be revised significantly prior to adoption and submittal, we would need to reconsider our proposed action accordingly.

    We will accept comments from the public on this proposal until June 18, 2018. If we take final action to approve the submitted documents, our final action will incorporate them into the federally enforceable SIP.

    III. Incorporation by Reference

    In this rule the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference certain permit conditions for the J.R. Simplot Nitric Acid plant in Helm, CA as described above in the preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: May 8, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.
    [FR Doc. 2018-10571 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0603; FRL-9978-11-Region 5] Air Plan Approval; Minnesota; PSD Infrastructure SIP Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of a state implementation plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) relating to Prevention of Significant Deterioration (PSD) for the 1997 ozone, 1997 fine particulate (PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide (SO2), and 2012 PM2.5 National Ambient Air Quality Standards (NAAQS). The Minnesota Pollution Control Agency (MPCA) submitted the SIP revision to EPA on October 4, 2016.

    DATES:

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

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0603 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What is the background of this SIP submission? II. What guidance is EPA using to evaluate this SIP submission? III. What is the result of EPA's review of this SIP submission? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission?

    This rulemaking proposes to approve a SIP submission from MPCA dated October 4, 2016, which addresses infrastructure requirements relating to PSD for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    The requirement for states to make infrastructure SIP submissions arises out of CAA section 110(a)(1). Pursuant to CAA section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. CAA section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA. This specific rulemaking is only taking action on the infrastructure SIP elements relating to PSD, provided at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J).

    In previous rulemakings, EPA addressed Minnesota's infrastructure obligations under the various NAAQS. On July 13, 2011 (76 FR 41075), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 1997 ozone and 1997 PM2.5 NAAQS. On October 29, 2012 (77 FR 65478), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2006 PM2.5 NAAQS. On July 16, 2014 (79 FR 41439), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2008 Pb NAAQS. Finally, on October 20, 2015 (80 FR 63436), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. However, because Minnesota did not have an approved PSD program at the time of these rulemakings, EPA generally disapproved infrastructure SIP elements relating to PSD in the rulemakings.1

    1 States may develop and implement their own PSD programs, which are evaluated against EPA's requirements for each component. States may alternatively decline to develop their own program, but instead directly implement Federal PSD rules. At the time of the infrastructure rulemakings referenced above, Minnesota had chosen to implement the Federally promulgated PSD rules at 40 CFR 52.21, and EPA had delegated to Minnesota the authority to implement these regulations. The Federally promulgated rules satisfied all infrastructure requirements relating to PSD. However, as a delegated program, these infrastructure elements were not approved into the Minnesota SIP.

    MPCA's submission dated October 4, 2016, requested that EPA approve into its SIP Minnesota Rule 7007.3000, which incorporates by reference the Federal PSD rules at 40 CFR 52.21. On July 10, 2017 (82 FR 31741), EPA proposed to approve this request, and on September 26, 2017 (82 FR 44734), EPA finalized approval; the change became effective on October 26, 2017. Therefore, Minnesota is now implementing its own SIP-approved PSD program.

    In this rulemaking, as requested by Minnesota, EPA is proposing to find that Minnesota has satisfied all infrastructure SIP elements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance relating to infrastructure SIP submissions can be found in a guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.52 National Ambient Air Quality Standards” (2007 Guidance).3 Further guidance is provided in a September 13, 2013, document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)” (2013 Guidance).4

    2 PM2.5 refers to particles with an aerodynamic diameter of less than or equal to 2.5 micrometers, oftentimes referred to as “fine” particles.

    3https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20071002_harnett_110(a)_sip_guidance.pdf.

    4https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.

    III. What is the result of EPA's review of this SIP submission?

    Pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MPCA commenced a public comment period on June 20, 2016, and closed the public comment period on July 20, 2016. Minnesota received three comments, and provided a response to comments in its submittal.

    Minnesota provided a synopsis of how its SIP meets each of the applicable requirements in CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, as applicable. The following review evaluates the state's submission.

    A. CAA Section 110(a)(2)(C)

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under PSD and nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

    The evaluation of the state's submission addressing the infrastructure SIP requirements of CAA section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify oxides of nitrogen (NOX) as a precursor to ozone in the PSD program; (iii) identification of precursors to PM2.5 and the identification of PM2.5 and PM105 condensables in the PSD program; (iv) PM2.5 increments in the PSD program; and, (v) greenhouse gas (GHG) permitting and the “Tailoring Rule.” 6

    5 PM10 refers to particles with an aerodynamic diameter of less than or equal to 10 micrometers.

    6 In EPA's April 28, 2011, proposed rulemaking for infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, we stated that each state's PSD program must meet applicable requirements for evaluation of all regulated NSR pollutants in PSD permits (see 76 FR 23757 at 23760). This view was reiterated in EPA's August 2, 2012, proposed rulemaking for infrastructure SIPs for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In other words, if a state lacks provisions needed to adequately address NOx as a precursor to ozone, PM2.5 precursors, PM2.5 and PM10 condensables, PM2.5 increments, or the Federal GHG permitting thresholds, the provisions of CAA section 110(a)(2)(C) requiring a suitable PSD permitting program must be considered not to be met irrespective of the NAAQS that triggered the requirement to submit an infrastructure SIP, including the 2012 PM2.5 NAAQS.

    Sub-Element 1: Enforcement of SIP Measures

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and NNSR programs.

    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41439, and 80 FR 634536, EPA determined that Minnesota has met the enforcement of SIP measures requirements of CAA section 110(a)(2)(C) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 2: PSD Provisions That Explicitly Identify NOX as a Precursor to Ozone in the PSD Program

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOx as a precursor to ozone (see 70 FR 71612 at 71679, 71699-71704). This requirement was codified at 40 CFR 51.166 and 40 CFR 52.21.

    The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including the provisions specific to NOX as a precursor to ozone, by June 15, 2007 (see 70 FR 71612 at 71683).

    On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding NOX as a precursor to ozone. EPA therefore proposes that Minnesota has met this set of infrastructure SIP requirements of CAA section 110(a)(2)(C) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 3: Identification of Precursors to PM2.5 and the Identification of PM2.5 and PM10 Condensables in the PSD Program

    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In this rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that volatile organic compounds (VOCs) are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

    The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011 (see 73 FR 28321 at 28341).7

    7 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, Part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). As the subpart 4 provisions apply only to nonattainment areas, EPA does not consider the portions of the 2008 NSR Rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR Rule in order to comply with the court's decision. Accordingly, EPA's approval of Minnesota's infrastructure SIP as to elements relating to PSD, provided at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), with respect to the PSD requirements promulgated by the 2008 NSR Rule, does not conflict with the court's opinion. The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 NSR Rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required to be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).

    On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding identification of precursors to PM2.5 and the identification of PM2.5 and PM10 condensables. EPA therefore proposes that Minnesota has met this set of infrastructure SIP requirements of CAA section 110(a)(2)(C) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 4: PM2.5 Increments in the PSD Program

    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included in the table below.

    Table 1—PM2.5 Increments Established by the 2010 NSR Rule in Micrograms per Cubic Meter Annual
  • arithmetic mean
  • 24-hour max
    Class I 1 2 Class II 4 9 Class III 8 18

    The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 as October 20, 2011. These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i).

    On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding PM2.5 increments. EPA therefore proposes that Minnesota has met this set of infrastructure SIP requirements of CAA section 110(a)(2)(C) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 5: GHG Permitting and the “Tailoring Rule”

    With respect to CAA sections 110(a)(2)(C) and 110(a)(2)(J), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of CAA section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Minnesota has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Coalition for Responsible Regulation, Inc. v. EPA, Nos. 09-1322,10-073,10-1092, and 10-1167 (D.C. Cir., April 10, 2015) (Amended Judgement). Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification . . . .” Id.

    In light of the Supreme Court opinion and subsequent D.C. Circuit judgement, EPA took steps to revise Federal PSD rules to be consistent with these court decisions. On May 7, 2015 (80 FR 26183), EPA issued a final rule that narrowly amended the permit rescission provisions in the Federal PSD regulations, and on August 19, 2015 (80 FR 50199), EPA issued a final rule that removed several provisions of the PSD and title V permitting regulations that were originally promulgated as part of the 2010 Tailoring Rule and that were vacated by the D.C. Circuit in its April 10, 2015 judgment.

    On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. Because EPA's May 7, 2015, and August 19, 2015, amendments to 40 CFR 52.21 included updates to bring the Federal rules into alignment with the Supreme Court opinion and the D.C. Circuit's amended judgement, Minnesota is currently operating a PSD program that is consistent with both court decisions.

    EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with respect to GHGs. This is because the PSD permitting program approved by EPA into the SIP on September 26, 2017, continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT.

    For the purposes of infrastructure SIPs, EPA reiterates that NSR reform regulations are not within the scope of these actions. Therefore, we are not taking action on existing NSR reform regulations for Minnesota.

    Certain requirements of CAA section 110(a)(2)(C) overlap with requirements of CAA sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J). These links will be discussed in the appropriate areas below.

    B. CAA Section 110(a)(2)(D)(i)(II)

    CAA section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.

    EPA notes that Minnesota's satisfaction of the applicable infrastructure SIP PSD requirements has been detailed in the discussion of CAA section 110(a)(2)(C). EPA further notes that the proposed actions in that discussion related to PSD are consistent with the proposed actions related to PSD for CAA section 110(a)(2)(D)(i)(II), and are reiterated below.

    EPA previously approved revisions to Minnesota's SIP to meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: Explicitly identify NOX as a precursor to ozone; explicitly identify SO2 and NOX as precursors to PM2.5; regulate condensable PM2.5 and PM10 in applicability determinations; and, establish emissions limits. EPA also previously approved revisions to Minnesota's SIP that incorporate the PM2.5 increments and the associated implementation regulations, including the major source baseline date, trigger date, and level of significance for PM2.5, as required by the 2010 NSR Rule. Therefore, EPA is proposing that Minnesota's SIP contains provisions that adequately address the infrastructure requirements for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. This requirement can be satisfied through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state.

    Minnesota's EPA-approved NNSR regulations are contained in Minn. R. 7007, and are consistent with 40 CFR 51.165 (60 FR 27411, May 24, 1995). Therefore, EPA proposes that Minnesota has met all of the applicable PSD requirements for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS related to CAA section 110(a)(2)(D)(i)(II).

    C. CAA Section 110(a)(2)(D)(ii)

    CAA section 110(a)(2)(D)(ii) requires that each SIP contain adequate provisions requiring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement, respectively).

    CAA section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element. Minnesota has provisions in its EPA-approved PSD program in Minn. R. 7007.3000 requiring new or modified sources to notify neighboring states of potential negative air quality impacts, and has referenced this program as having adequate provisions to meet the requirements of CAA section 126(a). EPA is proposing that Minnesota has met the infrastructure SIP requirements of CAA section 126(a) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. Minnesota does not have any obligations under any other subsection of CAA section 126, nor does it have any pending obligations under CAA section 115. EPA, therefore, is proposing that Minnesota has met all applicable infrastructure SIP requirements of CAA section 110(a)(2)(D)(ii).

    D. CAA Section 110(a)(2)(J)

    The evaluation of Minnesota's submission addressing the infrastructure SIP requirements of CAA section 110(a)(2)(J) covers: (i) Consultation with government officials; (ii) public notification; (iii) PSD; and, (iv) visibility protection.

    Sub-Element 1: Consultation With Government Officials

    States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41442, and 80 FR 63450, EPA determined that Minnesota has met the consultation with government officials requirements of CAA section 110(a)(2)(J) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 2: Public Notification

    CAA section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances.

    In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41442, and 80 FR 63450, EPA determined that Minnesota has met the public notification requirements of CAA section 110(a)(2)(J) with respect to the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 3: PSD

    States must meet applicable requirements of CAA section 110(a)(2)(C) related to PSD. Minnesota's PSD program in the context of infrastructure SIPs has already been discussed above in the paragraphs addressing CAA sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed actions for those CAA sections are consistent with the proposed actions for this portion of CAA section 110(a)(2)(J).

    Therefore, EPA proposes that Minnesota has met all of the infrastructure SIP requirements for PSD associated with CAA section 110(a)(2)(D)(J) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    Sub-Element 4: Visibility Protection

    With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes CAA sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Therefore, no new visibility obligation is “triggered” under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of CAA section 110(a)(2)(J) are not germane to infrastructure SIPs.

    IV. What action is EPA taking?

    EPA is proposing to approve a submission from Minnesota certifying that its current SIP is sufficient to meet the infrastructure SIP requirements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 4, 2018. Cathy Stepp, Regional Administrator, Region 5.
    [FR Doc. 2018-10458 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-OLEM-2018-0252, 0253, and 0254; FRL-9978-13-OLEM] National Priorities List AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add three sites to the General Superfund section of the NPL.

    DATES:

    Comments regarding any of these proposed listings must be submitted (postmarked) on or before July 16, 2018.

    ADDRESSES:

    Identify the appropriate docket number from the table below.

    Docket Identification Numbers by Site Site name City/county, state Docket ID Donnelsville Contaminated Aquifer Donnelsville, OH EPA-HQ-OLEM-2018-0252. PROTECO Peñuelas, PR EPA-HQ-OLEM-2018-0253. Delfasco Forge Grand Prairie, TX EPA-HQ-OLEM-2018-0254.

    Submit your comments, identified by the appropriate docket number, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    To send a comment via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Superfund Docket Center, Mailcode 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

    Use the Docket Center address below if you are using express mail, commercial delivery, hand delivery or courier. Delivery verification signatures will be available only during regular business hours: EPA Superfund Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.

    For additional docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the Supplementary Information portion of this preamble.

    FOR FURTHER INFORMATION CONTACT:

    Terry Jeng, phone: (703) 603-8852, email: [email protected], Site Assessment and Remedy Decisions Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (Mailcode 5204P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; or the Superfund Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the Construction Completion List (CCL)? J. What is the Sitewide Ready for Anticipated Use measure? K. What is state/tribal correspondence concerning NPL listing? II. Public Review/Public Comment A. May I review the documents relevant to this proposed rule? B. How do I access the documents? C. What documents are available for public review at the EPA Headquarters docket? D. What documents are available for public review at the EPA regional dockets? E. How do I submit my comments? F. What happens to my comments? G. What should I consider when preparing my comments? H. May I submit comments after the public comment period is over? I. May I view public comments submitted by others? J. May I submit comments regarding sites not currently proposed to the NPL? III. Contents of This Proposed Rule A. Proposed additions to the NPL IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments H. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks I. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. Background A. What are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

    B. What is the NCP?

    To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

    As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

    C. What is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

    D. How are sites listed on the NPL?

    There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

    • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

    • The EPA determines that the release poses a significant threat to public health.

    • The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

    The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

    E. What happens to sites on the NPL?

    A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * * ” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

    F. Does the NPL define the boundaries of sites?

    The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

    Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

    When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

    In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. Plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

    The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

    Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

    For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

    G. How are sites removed from the NPL?

    The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

    (i) Responsible parties or other persons have implemented all appropriate response actions required;

    (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

    (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

    H. May the EPA delete portions of sites from the NPL as they are cleaned up?

    In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

    I. What is the Construction Completion List (CCL)?

    The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

    Sites qualify for the CCL when: (1)Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For more information on the CCL, see the EPA's internet site at https://www.epa.gov/superfund/construction-completions-national-priorities-list-npl-sites-number.

    J. What is the sitewide ready for anticipated use measure?

    The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-9.

    K. What is state/tribal correspondence concerning NPL listing?

    In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

    The EPA is improving the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and 3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

    A model letter and correspondence from this point forward between the EPA and states and tribes where applicable, is available on the EPA's website at https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

    II. Public Review/Public Comment A. May I review the documents relevant to this proposed rule?

    Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at https://www.regulations.gov (see instructions in the Addresses section above).

    B. How do I access the documents?

    You may view the documents, by appointment only, in the Headquarters or the regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding federal holidays. Please contact the regional dockets for hours.

    The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection Agency, CERCLA Docket Office, 1301 Constitution Avenue NW, William Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/566-0276. (Please note this is a visiting address only. Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)

    The contact information for the regional dockets is as follows:

    • Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

    • Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.

    • Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

    • Cathy Amoroso, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW, Mailcode 9T25, Atlanta, GA 30303; 404/562-8637.

    • Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

    • Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.

    • Kumud Pyakuryal, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRSTAR, Lenexa, KS 66219; 913/551-7956.

    • Victor Ketellapper, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6578.

    • Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.

    • Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.

    You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed only in-person; since the EPA dockets are not equipped to both copy and mail out such maps or scan them and send them out electronically.

    You may use the docket at https://www.regulations.gov to access documents in the Headquarters docket (see instructions included in the Addresses section). Please note that there are differences between the Headquarters docket and the regional dockets and those differences are outlined in this preamble, Sections II.C and D.

    C. What documents are available for public review at the EPA Headquarters docket?

    The Headquarters docket for this proposed rule contains the following for the sites proposed in this rule: HRS score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.

    D. What documents are available for public review at the EPA regional dockets?

    The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.

    E. How do I submit my comments?

    Comments must be submitted to the EPA Headquarters as detailed at the beginning of this preamble in the Addresses section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.

    F. What happens to my comments?

    The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

    G. What should I consider when preparing my comments?

    Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (DC Cir. 1988)). The EPA will not address voluminous comments that are not referenced to the HRS or other listing criteria. The EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in the EPA's stated eligibility criteria is at issue.

    H. May I submit comments after the public comment period is over?

    Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.

    I. May I view public comments submitted by others?

    During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.

    All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at https://www.regulations.gov as the EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI) or other information whose disclosure is restricted by statute. Once in the public dockets system, select “search,” then key in the appropriate docket ID number.

    J. May I submit comments regarding sites not currently proposed to the NPL?

    In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

    III. Contents of This Proposed Rule A. Proposed additions to the NPL

    In this proposed rule, the EPA is proposing to add three sites to the NPL, all to the General Superfund section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above.

    The sites are presented in the table below.

    General Superfund section:

    State Site name City/county OH Donnelsville Contaminated Aquifer Donnelsville. PR PROTECO Peñuelas. TX Delfasco Forge Grand Prairie. IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL

    F. Executive Order 13132: Federalism

    This rule 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. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

    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 this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

    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 the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Authority:

    33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.

    Dated: May 9, 2018. Barry N. Breen, Acting Assistant Administrator, Office of Land and Emergency Management.
    [FR Doc. 2018-10466 Filed 5-16-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 32, 51, 61, and 69 [WC Docket No. 17-144; FCC 18-46] Regulation of Business Data Services for Rate-of-Return Local Exchange Carriers AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Commission proposes to allow rate-of-return carriers receiving universal service support under the Alternative Connect America Cost Model (A-CAM) to voluntarily migrate their lower speed circuit-based business data service (BDS) offerings to incentive regulation. It also seeks comment on whether to remove ex ante pricing regulation from these carriers' higher speed BDS offerings and on whether further regulatory relief is warranted for these carriers' lower-speed circuit-based BDS in areas deemed competitive by a potential competitive market test. Additionally, the document proposes to allow other rate-of-return carriers receiving fixed support to opt into the same incentive regulation proposed for A-CAM carriers. Finally, the Commission seeks comment on proposed rule changes that would implement the proposals made in this document, including corrections to inaccuracies contained in its current rules.

    DATES:

    Comments are due on or before June 18, 2018; reply comments are due on or before July 2, 2018. Parties that believe this document may contain new or modified information collection requirements may submit written Paperwork Reduction Act (PRA) comments to the Office of Management and Budget (OMB), and other interested parties on or before July 16, 2018.

    ADDRESSES:

    You may submit comments, identified by WC Docket No. 17-144, by any of the following methods:

    Federal Communications Commission's Website: http://apps.fcc.gov/ecfs//. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 888-835-5322.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Justin Faulb, Wireline Competition Bureau, Pricing Policy Division at 202-418-1589 or via email at [email protected]

    For additional information concerning any potential information collection requirements contained in this document, send an email to [email protected] or contact Nicole Ongele at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), WC Docket No. 17-144; FCC 18-46, adopted on April 17, 2018 and released on April 18, 2018. The full-text of this document may be found at the following internet address: https://apps.fcc.gov/edocs_public/attachmatch/FCC-18-46A1.doc.

    Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document in Dockets WC 17-144. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary: Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    Synopsis I. Introduction

    1. The Commission has long recognized that, because it promotes efficiency and reduces regulatory burdens, incentive regulation is preferable to rate-of-return regulation. Therefore, in a series of steps over the last three decades, the Commission provided incentives to encourage incumbent local exchange carriers (LECs) to move from rate-of-return regulation to incentive regulation. In this NPRM, we take more steps along that path by proposing to allow rate-of-return carriers that receive universal service support under the Alternative Connect America Cost Model (A-CAM) to voluntarily migrate their lower speed business data services (BDS) offerings to incentive regulation. Because A-CAM carriers that elect to move away from rate-of-return regulation for their BDS offerings (electing A-CAM carriers) will no longer need to provide cost-based justification for their rates, we propose to relieve them of burdensome cost-based pricing regulation, including the obligation to conduct cost studies for purposes of ratemaking. At the same time, because we recognize that ex ante pricing regulation is of limited use—and often harmful—in a dynamic and increasingly competitive market, we seek comment on identifying areas served by electing A-CAM carriers that are sufficiently competitive that their lower speed BDS offerings should be relieved of ex ante pricing regulation, and we seek comment on whether to relieve electing A-CAM carriers' higher speed BDS offerings from ex ante pricing regulation. And, because there are other rate-of-return carriers that receive model-based or fixed support, and would benefit from less burdensome regulation, we propose to provide the same relief to those carriers as we propose to provide to A-CAM carriers. Taken together we expect these actions will spur entry, innovation, and competition in the affected BDS markets.

    II. Background

    2. We start from the premise that incentive regulation encourages carriers to be efficient by granting them at least a share of profits obtained from cost reductions and allowing them to more aggressively serve consumers (including by reducing prices) in the face of competitive pressures. By contrast, rate-of-return regulation provides incentives for firms to “pad” their rate base and to make inefficiently high use of capital inputs. Additionally, rate-of-return regulation requires carriers to account for the costs they incur in providing service to justify their rates and universal service support and thus unavoidably involves substantial regulatory burdens.

    3. In 1990, the Commission began the process of shifting away from cost-based regulation by adopting price cap rules that govern how the largest incumbent LECs establish their interstate access charges. Price cap regulation was intended to avoid the counterproductive incentives of rate-of-return regulation in part by divorcing the annual rate adjustments from the actual costs of each individual LEC, and in part by adjusting the cap based on actual industry productivity experience. In more recent years, a number of midsize carriers have voluntarily converted from rate-of-return to price cap regulation.

    4. In 2011, as part of comprehensive reform and modernization of the universal service and intercarrier compensation systems, the Commission adopted rate caps for switched access services for rate-of-return carriers, thereby removing switched access services from rate-of-return regulation. In 2016, the Commission gave rate-of-return carriers the option of receiving forward looking model-based support from the high-cost universal service support program, the A-CAM, designed to estimate the cost of operating and maintaining an efficient modern network. More than 200 carriers opted to receive A-CAM support which eliminated the need for those carriers to conduct cost studies to quantify the amount of high-cost support they receive. The Commission observed that “the election of model-based support places those carriers in a different regulatory paradigm” and that “[e]ffectively, the carriers that choose to take the voluntary path to the model are electing incentive regulation for common line offerings.” As a result, rate-of-return carriers that elected the A-CAM support option are currently subject to rate-of-return regulation and the attendant requirement to conduct cost studies only for their BDS offerings.

    5. In 2017, ITTA and USTelecom (together, Petitioners) filed a joint petition requesting that the Commission allow A-CAM carriers and other rate-of-return carriers that receive model-based support to opt into the regulatory framework for BDS that the Commission recently adopted for price cap carriers. The Petition explains that for such carriers, “continued compliance with rate-o[f]-return-based rate regulation . . . entails significant costs.” It further explains that because carriers that receive universal service support based on a cost model no longer have cost-based switched access charges, “the need to perform annual cost studies now applies only with respect to BDS.” It also claims that rate-of-return regulation deters investment in networks and harms competition. The Wireline Competition Bureau (Bureau) sought and received comment on the Petition. A number of commenters support the Petition, arguing that cost savings and lighter touch pricing regulation of model-based carriers' BDS would spur competition, incentivize investment, benefit consumers, and eliminate unnecessary administrative burdens. Other commenters expressed concerns, including whether sufficient competition exists in A-CAM study areas to justify reduced regulation.

    6. In addition to facilitating rate-of-return carriers' move to incentive regulation, the Commission has taken major steps to reduce regulation for carriers that face competition. Given the inherent inefficiencies of regulation, the Commission relies on competition to the extent possible to ensure carriers' rates and practices are just and reasonable. In 1999, the Commission granted pricing flexibility to price cap carriers that provided service in areas where carriers could demonstrate threshold levels of deployment by competitive providers. The Pricing Flexibility Order adopted competitive triggers designed to measure the extent to which competitors had made irreversible, sunk investment in collocation and transport facilities. The Commission gave price cap carriers that satisfied those triggers the flexibility to offer BDS at unregulated rates through generally available and individually negotiated tariffs. In addition, starting in 2007, upon finding that competitive providers for BDS services existed in the relevant price cap areas, the Commission granted a number of price cap incumbent LECs forbearance from dominant carrier regulation, including tariffing and price cap regulation, for their newer packet-based broadband services. These forbearance orders concluded that a number of competing providers exist for broadband BDS. They also concluded that forbearance from burdensome regulations when competition exists increases the amount of competition in the marketplace, ensuring that rates and practices for services are just, reasonable, and not unreasonably discriminatory.

    7. The BDS Order the Commission adopted last year took another step toward reducing regulation in response to the growth of competition. In that order, the Commission found that reducing government intervention and allowing market forces to continue working would further spur entry, innovation, and competition in BDS markets served by price cap carriers. The Commission applied ex ante rate regulation “only where competition is expected to materially fail to ensure just and reasonable rates” and stated its preference to rely “on competition rather than regulation, wherever purchasers can realistically turn to a supplier beyond the incumbent LEC.” Based on the record before it, the Commission found that, on balance, competition was sufficient to ensure just and reasonable rates for packet-based business data services, TDM transport services, and higher bandwidth (i.e. above DS3) TDM services (including OCn services) in areas served by price cap carriers. It also adopted a competitive market test for TDM end user channel terminations in price cap areas and refrained from ex ante pricing regulation of those services in areas deemed competitive by that test.

    III. Path Forward For Lower Speed Services

    8. We seek comment on a regulatory framework that would provide electing A-CAM carriers a path to allow a move from rate-of-return regulation to a more efficient system of incentive regulation for their TDM transport and end user channel terminations at speeds at or below a DS3. In so doing, we propose to require that each A-CAM carrier's decision about whether to move their BDS offerings out of rate-of-return regulation be made on an all-or-nothing basis for all of an A-CAM carrier's study areas that receive A-CAM support. We also invite comment on what would be an appropriate market analysis for these lower speed services and on a competitive market test that would allow us to distinguish between markets that are sufficiently competitive so as not to warrant the burdens of ex ante pricing regulation from those that are not. Although the sections below focus on A-CAM carriers, because we are proposing to allow other rate-of-return carriers that receive model-based or other types of fixed support the opportunity to elect the same or similar lighter-touch BDS regulation that we propose for A-CAM carriers, we also seek comment on providing a path forward for regulating such carriers' BDS offerings. As commenters respond to the requests for comment below, we encourage discussion of how such a path forward could work for other such rate-of-return carriers.

    A. Incentive Regulation for Lower Capacity TDM Transport and End User Channel Termination Services

    9. We propose to allow electing A-CAM carriers to convert their lower capacity TDM BDS offerings to an incentive regulatory approach modelled on the rules the Commission adopted for price cap carriers' lower speed BDS in noncompetitive areas, while still allowing such carriers to be subject to the switched access rate transition and the Eligible Recovery rules applicable to rate-of-return carriers. We propose to allow conversion to incentive regulation for TDM transport and end user channel termination services offered at speeds at or below a DS3, as well as other generally lower speed non-packet-based services that are commonly considered special access services. Are there other special access offerings by rate-of-return carriers that we should include in the incentive regulation option for A-CAM carriers? For example, are there any telecommunications service components associated with either residential digital subscriber line services or dedicated internet access services that would qualify as special access services that we should also allow to migrate to incentive regulation? We anticipate that this approach will encourage competition for BDS in areas served by electing A-CAM carriers and reduce unnecessary regulatory burdens on electing A-CAM carriers. We seek comments on this proposal, including on the benefits and costs of this approach.

    10. The Commission has consistently acknowledged that incentive regulation can foster appropriate incentives for carriers to be efficient and to innovate. Under price cap regulation, as opposed to cost-based regulation, carriers have the incentive to become more efficient, to reduce costs, and to innovate as a means of increasing their profits. Moreover, an appropriate X-factor and periodic review by the Commission can ensure that carriers share some or all of these efficiencies with their customers. We invite parties to identify with specificity any short-comings in the proposal and to suggest alternatives that could achieve the objectives more efficiently. Given the well-recognized benefits of incentive regulation, we also seek comment on whether we should make this election mandatory for all A-CAM carriers.

    1. Relieving Electing A-CAM Carriers of Rate-of-Return Regulation for Their Lower Speed TDM BDS Offerings

    11. We propose to relieve electing A-CAM carriers of a variety of regulatory obligations that pertain to rate-of-return regulation, including the obligation to perform cost studies. Rate-of-return carriers are required by our rules to perform relatively burdensome cost studies to support their rate development. Petitioners and other commenters identify elimination of cost studies as a primary benefit of allowing A-CAM carriers to elect incentive regulation. We invite parties to quantify the burdens of preparing cost studies (including costs and/or hours of labor) and comment on whether cost studies impose any special burdens on smaller carriers. We also seek comment on whether data from A-CAM carriers' cost studies are necessary in the performance of any Commission regulatory function. If so, will the benefits of the data collected from electing A-CAM carriers' cost studies outweigh the burden of requiring them to continue to provide that data when they are no longer offering cost-based services? Are there other, less burdensome ways of collecting the relevant data from electing A-CAM carriers that we should explore? Are there other issues we need to address before relieving A-CAM carriers of the burden of cost studies? If so, how shall we address them?

    12. We also propose to allow electing A-CAM carriers pricing flexibility for their lower capacity TDM services similar to that granted by the Commission in the BDS Order to price cap carriers in their provision of lower capacity TDM services in counties deemed noncompetitive by the competitive market test we adopted for price cap carriers. We propose to allow electing A-CAM carriers to offer term and volume discounts and contract-based services for their TDM transport and end user channel termination services offered at speeds at or below a DS3. Electing A-CAM carriers would be required to maintain generally available tariffed rates subject to incentive regulation for these lower speed TDM transport and end user channel terminations, and other special access services included in their tariffs. We seek comment on these proposals.

    13. We also propose to allow electing A-CAM carriers to remain in the NECA traffic-sensitive tariff for switched access services, and to continue to be subject to the switched access rate cap provisions of section 51.909 and the Eligible Recovery rules in section 51.917 of the Commission's rules. We propose to require electing A-CAM carriers to remove their special access services from the NECA traffic-sensitive tariff. We seek comment on these proposals.

    14. We recognize that our proposed approach for electing A-CAM carriers treats TDM transport differently than the BDS Order does for price cap carriers. While the Commission found TDM transport to be competitive in price cap areas generally, here we propose to allow electing A-CAM carriers to convert lower speed TDM transport services to incentive regulation but not to immediately eliminate ex ante pricing regulation for them. We propose this different approach given that competition for such services may not be as robust in the less dense, more rural areas that A-CAM carriers typically serve. We seek comment on this aspect of our proposal, and on what data exist to confirm or invalidate our assumption. The Commission observed in the BDS Order that competitive transport services are typically deployed at locations where sufficient demand is aggregated to enable a competitor to justify investment. To what extent is there sufficient aggregated demand in A-CAM areas to justify the deployment of competitive transport? Are there instances where demand for TDM transport services may be increasing, creating the precondition for competitive entry in the future? Alternatively, has the overall decline in demand for TDM services also affected the demand for lower speed TDM transport services in A-CAM areas? Finally, we seek comment on allowing additional regulatory relief for A-CAM carriers' TDM transport offered at speeds at or below a DS3 in areas deemed competitive by a competitive market test we seek comment on below.

    15. We do not propose to transition electing A-CAM carriers to incentive regulation for switched access services. The transition provisions for switched access rates and Eligible Recovery rules for rate-of-return carriers adopted by the USF/ICC Transformation Order are well established, have been upheld on appeal, and have been partially implemented; disrupting these transitions would likely impose additional costs and increase uncertainty, deterring investment and deployment. We also seek comment on the benefits and costs of our proposed approach. The Petition sought an “exception” to § 61.41 of the Commission's rules (the so-called “all or nothing” rule), which requires all of a price cap carrier's study areas and rates, including those of affiliates and carriers it purchases or merges with, to be subject to price cap regulation. We propose to amend § 61.41 to create an exception for the alternative regulatory structure we propose in this NPRM, and we seek comment on this proposal. Are there any other rules we should consider waiving or amending in the context of this proceeding?

    2. Implementing Optional Incentive Regulation for Lower Capacity TDM Services

    16. In this section, we make specific proposals regarding the terms of the incentive regulation we propose to adopt for electing A-CAM carriers and seek comment on these proposals.

    a. Election

    17. We propose to require carriers that elect to move off rate-of-return regulation for their BDS services to move to incentive regulation at the holding company level for study areas in all states that elected to receive A-CAM support rather than electing on an individual carrier or study area basis, as proposed by Petitioners. Requiring election at the holding company level will ensure cost savings from the elimination of annual cost studies to be realized by all affiliated carriers electing A-CAM support. Carriers have already had the opportunity to elect between A-CAM and cost-based support at a state-wide level. Allowing A-CAM carriers to elect regulatory treatment at a more disaggregated level would appear to be inconsistent with the underlying premise of price caps, which assumed a broad representation of carrier operations to provide a basis for establishing an industry-wide productivity factor. Currently, there are 262 A-CAM companies when calculated at the state level and 207 when calculated at the holding company level. We invite parties to comment on the proposed level of election. Parties believing the proposed holding company level is too high should explain why a more disaggregated level would be in the public interest. Any explanation should include concrete examples of why the proposed level would preclude a significant number of A-CAM carriers from electing incentive regulation. Parties should address whether other aspects of the proposal could be modified to make the proposed level of election more acceptable.

    18. We propose to make incentive regulation for electing A-CAM carriers effective on the July 1st following adoption of an order in this proceeding, which is the deadline for the annual access tariff filing. Using July 1st will simplify the tariffing process for implementing any change and is consistent with the price cap rules' use of the prior calendar-year demand data for their price cap calculations. We invite parties to comment on this proposal, and to suggest other timing options that may work, identifying the benefits and drawbacks of such proposals. The proposals should address the periods for determining cost and demand for electing A-CAM carriers. We also invite parties to comment on whether we should allow a one-time opportunity to elect, or whether additional election opportunities should be allowed. If more than one opportunity to elect is offered, what should the timing be for any additional election opportunities?

    19. We have recently proposed making a second A-CAM offer. In the event that additional rate-of-return carriers become A-CAM carriers, we propose that they may elect to adopt incentive regulation at the next annual tariff filing date that follows their election. We also propose to allow the new electing A-CAM carriers to adopt the other lighter touch regulatory options that are available to electing A-CAM carriers at that time. We invite parties to comment on these proposals.

    b. Initial Rate Levels

    20. We propose to allow electing A-CAM carriers that currently file their own tariffed rates for BDS offerings to use their existing rates to set their initial BDS rates under incentive regulation. The Commission used this method when allowing rate-of-return carriers filing their own rates to convert to price cap regulation. The demand to be used for the incentive regulation calculations would be that of the previous calendar year. The carrier would then apply the prescribed X-factor and the inflation factor, two variables in the Commission's existing formula for the price cap index (PCI), which would result in the proposed rates in the first year of incentive regulation, and each year thereafter. We invite parties to comment on this proposal. We ask that any party disagreeing with this approach submit a detailed proposal for setting initial rates, including an explanation of why its preferred approach would be equal to or better than the approach we propose.

    21. Establishing initial BDS rates for electing A-CAM carriers participating in the NECA traffic-sensitive pool is more complicated because they are charging a pooled rate, which does not reflect the actual costs of the pooling carrier. The NECA pool BDS rates are therefore not the proper rates to use as initial BDS rates. We therefore propose that each electing A-CAM carrier in the pool establish its initial BDS rates by multiplying the NECA pool rate the carrier has been charging by a net contribution/recipient factor. Thus, an A-CAM carrier with more BDS revenues than the BDS settlements it receives from the pool would have its pool rate reduced commensurately. The opposite would occur for an electing A-CAM carrier that received more BDS settlements than the BDS revenues it produced. The carrier would then apply the prescribed X-factor and the inflation factor, which would result in the proposed rates in the first year of incentive regulation, and each year thereafter. This approach avoids the necessity of doing new cost studies for each study area of the electing A-CAM carriers. We invite parties to comment on this approach. Alternatively, commenters may suggest other approaches, such as doing cost studies for the preceding calendar year, or other twelve-month period. Parties making such alternative proposals should address the manner in which the alternative time period data would be incorporated into the incentive regulation calculations.

    22. Are there other approaches we should take in determining how electing A-CAM carriers should establish initial BDS rates? Are there other adjustments that we should make to our proposed initial rate setting process? For example, should the initial rates be lower than current rates because of the cost savings electing carriers will realize by moving to incentive regulation? If so, how much should be shared with consumers and how should such amount be determined? In a 2012 waiver petition seeking to move from rate-of-return to price cap status, FairPoint Communications, Inc., proposed reducing its special access rates by a percentage of the anticipated cost savings. We invite parties to comment on these issues and to suggest how such amounts should be determined, especially if another cost study is to be avoided.

    c. Special Access Basket, Categories and Subcategories

    23. Consistent with the BDS Order, we propose to retain the special access basket, categories and subcategories, and the attendant rules governing the allowed annual adjustments. We propose to require each electing A-CAM carrier to initialize its PCI for the special access basket and associated service band indices (SBIs) at 100 and to use the rate adjustment rules for price cap carriers contained in sections 61.45-48 of our rules, as appropriate, to reflect the prescribed productivity factor, the inflation factor, and any required exogenous cost adjustment in the PCI, to ensure that the Actual Price Index (API) does not exceed the PCI, and that the SBIs for each category or subcategory do not exceed their upper limits. The category and sub-category requirements are designed to limit the degree to which a carrier can raise rates in any given year in an effort to avoid anti-competitive pricing. We invite parties to comment on this proposal. Are there other approaches we should take? Are there other categories or sub-categories needed for A-CAM carriers that were not necessary for price cap carriers? We request that parties recommending that we modify the categories or sub-categories explain why such a change would improve the functioning of the incentive regulation plan and/or the BDS market and produce benefits for consumers.

    d. Productivity Factor and Measure of Inflation

    24. Consistent with the BDS Order, we also propose to adopt an X-factor of two percent to reflect the productivity growth that electing A-CAM carriers are likely to experience in the provision of these services relative to productivity growth in the overall economy in the foreseeable future and to use Gross Domestic Product-Price Index (GDP-PI) as the measure of inflation that electing A-CAM carriers will use in their PCI calculations. We do not propose to incorporate a consumer productivity dividend (CPD) adjustment into this X-factor. Based on the industry-wide analysis provided in the BDS Order and Petitioners' proposal that we use a two percent X-Factor, we believe an X-factor of two percent will ensure just and reasonable rates for BDS offered by electing A-CAM carriers, and that use of the GDP-PI is appropriate. We seek comment on this proposal.

    25. Are there reasons we should use a different productivity factor for electing A-CAM providers than we use for price cap carriers? We request that any party proposing a different productivity factor or measure of inflation factor describe with specificity how their proposed X-Factor is derived and why it would be a better forecast of the expected pattern of growth than what we propose herein.

    26. We also seek comment on the extent to which the voluntary nature of the election interacts with the appropriate level of the X-Factor. For example, are there relationships between different factors that could warrant that the Commission increase or decrease the X-Factor? Should the level of the X-Factor be affected by whether the carrier election is for all A-CAM study areas, or made on a more disaggregated level?

    e. Exogenous Costs

    27. We seek comment on the treatment that should be accorded exogenous costs if we allow A-CAM carriers to elect to move to incentive regulation. Exogenous costs are those costs that are beyond the control of the carrier, as determined by the Commission. Section 61.45(d) of our rules provides for an exogenous cost adjustment for price cap carriers to be apportioned on a cost-causative basis between price cap services as a group, and excluded services as a group. Exogenous cost changes attributed to price cap services are recovered from services other than those used to calculate the average traffic-sensitive charge. A-CAM carriers have been removed from rate-of-return regulation for universal service purposes and for interstate access services other than BDS. We invite parties to address how the principle of cost causation should be applied in determining the amount of any exogenous costs to be assigned to the BDS basket for electing A-CAM carriers. We propose that exogenous costs be allocated based on a ratio of BDS revenues to total revenues from all regulated services and A-CAM universal service support payments. We invite parties to address whether some other basis would be preferable, including the rationale for the alternative approach.

    f. Low-End Adjustment

    28. Consistent with the BDS Order, we propose to adopt a low-end adjustment mechanism to provide an appropriate backstop to ensure that electing A-CAM carriers are not subject to protracted periods of low earnings. Failure to include any adjustment for such circumstances could harm customers as well as shareholders of such a carrier as a below-normal rate-of-return over a prolonged period could threaten the carrier's ability to raise the capital necessary to provide modern, efficient services to customers. The low-end adjustment mechanism would permit a one-time adjustment to a single year's BDS rates to avoid back-to-back annual earnings below a set benchmark. If an electing A-CAM carrier's BDS earnings fall below the low-end adjustment mark in a base year period, it would be entitled to adjust its rates upward to target earnings to the benchmark. We propose that, consistent with past practice, the low-end adjustment benchmark should be set 100 basis points below the authorized rate of return for rate-of-return carriers. We propose that electing A-CAM carriers that exercise downward pricing flexibility (for example, by entering into a contract tariff with a customer), or elect the option to use generally accepted accounting practices (GAAP) rather than the Part 32 Uniform System of Accounts as set forth in our recent Part 32 Accounting Order, will be ineligible for a low-end adjustment.

    29. We invite interested parties to comment on the proposal to adopt a low-end adjustment mechanism. We ask parties to comment on whether this measure will ensure that electing A-CAM carriers have the opportunity to attract sufficient capital. We note that an A-CAM carrier would have to present cost data to support a claim for a low-end adjustment. Because eliminating the need for cost studies is one of the driving objectives behind Petitioners' proposal, we ask parties to comment on whether there are alternative ways to make the required determinations short of performing a full cost study. Parties offering suggestions should explain the proposed mechanism in sufficient detail that a comparison to the results of a cost study can be made. We also seek comment on the appropriateness of setting the benchmark for the low-end adjustment at 100 basis points below the authorized rate of return for rate-of-return carriers. We note that this proposal would allow the benchmark to track the gradual reduction in the authorized rate-of-return as it transitions down.

    g. Cost Assignment and Jurisdictional Separations Rules

    30. Pursuant to section 10 of the Act, and to implement our new incentive regulation for those A-CAM carriers that elect incentive regulation, we propose to forbear from application of our cost assignment rules, including jurisdictional separations requirements. Consistent with our previous forbearance orders for price cap carriers, we propose to define cost assignment rules to include the rules governing the assignment of costs and revenues by carriers. We seek comment on our proposed definition.

    31. In providing similar forbearance to price cap carriers, the Commission observed that such rules “were developed when the ILECs' interstate rates and many of their intrastate rates were set under rate-based, cost-of-service regulation. The Commission has explained that `because price cap regulation severs the direct link between regulated costs and prices, a carrier is not able automatically to recoup misallocated non-regulated costs by raising basic service rates,' thus reducing incentives to shift non-regulated costs to regulated services.” Does the same reasoning for forbearance apply to A-CAM carriers electing incentive regulation? Will the operation of the incentive regulation rules we propose make enforcement of the cost assignment and separations rules unnecessary to ensure just, reasonable and not unjustly or unreasonably discriminatory charges, practices, classifications, and regulations, or make enforcement of those rules unnecessary to protect consumers from unjust, unreasonable, and unjustly or unreasonably discriminatory rates, practices, classifications, and regulations? Is enforcement of such regulations unnecessary to protect consumers? Would forbearance be consistent with the public interest and would the reduction of regulatory burdens improve market competitiveness?

    32. We further propose to condition any grant of forbearance from application of the cost assignment and jurisdictional separations rules for an electing A-CAM carrier that froze their separations category relationships on its conducting a cost study for the preceding calendar year. The A-CAM carrier would then adjust the initialized BDS rates determined pursuant to the procedures described above by the results of the cost study. We invite parties to comment on this proposal and to identify any constraints that should be placed on application of the cost study results to the development of revised access charges, including BDS rates. For example, should a carrier be limited in the extent it may adjust the relative price relationships between business data services that may be established?

    33. Above, we propose procedures for electing A-CAM carriers to use in establishing initial BDS rates under incentive regulation that assume other factors remained unchanged. Forbearing from cost allocation and jurisdictional separations requirements for A-CAM carriers electing incentive regulation, however, would change one of the controlled factors. We invite comment on what adjustments, if any, we should allow an A-CAM carrier that elects to freeze its category relationships to make to its rates to ensure that its BDS rates are just and reasonable pursuant to section 201 of the Act.

    h. GAAP Accounting

    34. We propose to allow electing A-CAM carriers to use GAAP for keeping their accounts, should they choose to do so. The Commission recently revised the Part 32 rules to allow price cap LECs to elect to use GAAP in recording and reporting their financial data, subject to two targeted accounting requirements. Electing carriers may either (a) calculate an Implementation Rate Difference between the attachment rates calculated by the price cap carrier under the Uniform System of Accounts (USOA) and under GAAP as of the last full year preceding the carrier's initial opting-out of Part 32 USOA accounting requirements; or (b) comply with GAAP accounting for all purposes other than those associated with setting pole attachment rates while continuing to use the Part 32 accounts and procedures necessary to establish and evaluate pole attachment rates. Electing carriers must adjust their annually computed GAAP-based rates by the Implementation Rate Difference for a period of 12 years after the election. This frees price cap carriers from having to maintain two sets of books: One for financial reporting purposes consistent with GAAP and one for regulatory reporting purposes consistent with the accounting requirements of Part 32. For the same reasons, we propose to allow electing A-CAM carriers to have the option to use GAAP. We propose to require electing A-CAM carriers that choose to use GAAP accounting to be subject to the same data provisioning requirements as price cap carriers, including the requirements relating to the calculation of pole attachment rates. As a result, such carriers will have to determine an Implementation Rate Difference to apply in calculating their pole attachment rates. We seek comment on this proposal. Are there other issues with allowing electing A-CAM carriers to use GAAP accounting that we should consider?

    B. Providing a Path To Relieve Electing A-CAM Carriers of Ex Ante Pricing Regulation for Lower Speed End User Channel Terminations and TDM Transport in Competitive Areas

    35. We seek comment on whether we should adopt a competitive market test (CMT) to assess the availability of actual and likely competitive options in the provision of transport and last-mile services in areas served by electing A-CAM carriers and to remove from ex ante pricing regulation DS1 and DS3 end user channel terminations, TDM transport at speeds at or below a DS3, and other generally lower speed BDS provided (or some subset of these services) by electing A-CAM carriers in areas that the CMT finds competitive. If so, what should be the elements of such a test and what are the costs and benefits of adopting such a test? We also seek comment on whether we should use different metrics and/or different tests to measure the competitiveness of lower speed end user channel terminations as compared to lower speed TDM transport services.

    36. If we adopt a CMT for electing A-CAM carriers, should we use the CMT the Commission adopted in the BDS Order for price cap carriers (the existing CMT) as a starting point? The existing CMT features two prongs, based on data from price cap study areas. The first measures whether 50 percent of the locations with BDS demand in a county are within a half-mile of a location that was served by a competitive provider, based on the 2015 Collection. The second uses Form 477 data to measure whether a cable operator offers a minimum of 10/1 Mbps broadband service in 75 percent of the census blocks in the county. If either prong is satisfied, that county is deemed competitive for price cap carriers' BDS. Below, we seek comment on several options for a CMT for electing A-CAM carriers, some of which include the use of the existing CMT. Beside the options we offer below, are there other options we should consider if we choose to adopt a CMT? What are the costs and benefits of each?

    1. CMT Options a. Rerun the Second Prong of the Existing CMT Using 477 Data for A-CAM Areas

    37. First, we seek comment on adopting a CMT that uses only a version of the second prong of the existing CMT using data from areas served by A-CAM carriers. Under this approach, we would rerun the second prong of the existing CMT using FCC Form 477 data only from electing A-CAM carriers' study areas. We would then deem competitive, for purposes of relieving electing A-CAM carriers' lower speed TDM BDS services from ex ante pricing regulation, any county where a cable operator or other competitive provider offers a minimum of 10/1 Mbps broadband service in 75 percent of the census blocks in the portion of the county served by an electing A-CAM carrier. This approach has the benefit of simplicity. It would allow us to use FCC Form 477 data that we regularly collect and would identify areas served by electing A-CAM carriers that competitors or potential competitors already serve. Because we would not be using the first prong of the existing CMT, there would be no need to conduct a BDS data collection for A-CAM carriers akin to the 2015 Collection. For a variety of reasons, we are not inclined to adopt an approach that would require another such large-scale data collection. The burdens associated with such a data collection would be substantial for A-CAM carriers and other providers of data, and could significantly delay Commission action without corresponding benefits. However, we invite comment on this issue. Because of the lack of cable service in many rate-of-return study areas, we recognize that this test will likely result in very few A-CAM counties being deemed competitive. Does that suggest this test is accurate in identifying competition in A-CAM areas? Are there other costs and benefits to this approach that we should consider?

    b. Use the Results of the Existing CMT

    38. Petitioners propose that we apply the existing CMT to electing A-CAM carriers' BDS offerings. Under this proposal, an electing A-CAM carrier's lower speed TDM BDS offerings would be relieved of ex ante pricing regulation in those counties that have already been deemed competitive by the existing CMT. Petitioners recognize that there are 78 purely rate-of-return counties that were not analyzed by the existing CMT. They propose to use the second prong of the existing CMT to determine whether those counties should be considered competitive. Petitioners argue that this approach would involve minimal administrative and compliance burdens and would avoid the need for revising and re-running the CMT for electing A-CAM carriers or analyzing any additional data.

    39. We seek comment on Petitioners' proposed approach. The existing CMT was developed for price cap carriers' service areas and involved analysis of competition only in price cap areas. The Commission did not consider competition in A-CAM markets. Is an analysis of existing or potential competition in price cap areas of a county an appropriate way to determine whether competition or potential competition exists in areas of that county served by an electing A-CAM carrier? Is it likely to result in deregulating lower speed TDM-based BDS services offered by electing A-CAM carriers in counties where such carriers will not face competitive pressure in pricing those services? Are there other benefits or drawbacks to this approach that we should consider?

    c. Apply a Modified Two-Prong CMT to Areas Served by Electing A-CAM Carriers

    40. Another option would be to adopt a CMT for electing A-CAM carriers using prongs similar to those of the existing CMT, but using data specific to areas served by electing A-CAM carriers. We seek comment on this approach. We recognize that for purposes of the first prong of the new CMT, this approach would require a data collection sufficient to allow us to identify for each county served by an electing A-CAM carrier whether 50 percent of the locations with BDS demand in that part of the county are within a half-mile of a location that was served by a competitive provider. Such a collection could be limited to electing A-CAM carriers and their competitors. Nonetheless, we have reservations about the relative costs and benefits of conducting such a data collection. And, the current record is split on whether we should consider a new data collection. We seek comment on how to most efficiently collect relevant data and on whether the burdens of such a data collection outweigh the benefits. We also seek comment on other benefits and drawbacks to this option.

    d. Adopt a CMT Based on a Market Analysis Specific to Areas Served by A-CAM Carriers

    41. A fourth option is to create a whole new CMT based on a competitive market analysis specific to BDS services in areas served by electing A-CAM carriers. Petitioners argue that the BDS market analysis conducted in the BDS Order with respect to price cap areas applies equally to rate-of-return areas served by A-CAM carriers. We seek comment on Petitioners' argument.

    42. In the BDS Order, the Commission conducted a broad, data-driven, multi-faceted market analysis based on a comprehensive data collection to evaluate the extent of competition for BDS in price cap areas. The Commission's market analysis was informed by, but not limited to, traditional antitrust principles, such as the market power analysis performed by U.S. antitrust agencies. The Commission analyzed the product market, geographic market, barriers to entry, and other characteristics of price cap BDS markets.

    43. If we conduct a new market analysis, should it be similar to the market analysis conducted by the Commission in the BDS Order as a precondition to determining whether competition is sufficient to warrant lighter touch regulation in certain BDS markets? If we do conduct a new market analysis, we propose to consider product and geographic markets, competitive entry, and other market attributes to ascertain the extent to which nearby potential BDS competitors are likely to temper price, resulting in reasonably competitive prices over the short- to medium-term (i.e., up to three to five years). Would this be the right approach to assessing the level of competition for BDS in A-CAM areas? What other approaches should we consider taking? How should we analyze transport under our market analysis? Would a competitive market analysis give us sufficient basis to go beyond the incremental deregulation of lower speed transport that we propose above? We ask commenters to support their positions with data that would help us determine whether markets are sufficiently competitive to warrant deregulatory treatment.

    44. Data for a Market Analysis. If we conduct a market analysis, what relevant data are available and what are the potential utility and limitations of the available data? Should we review FCC Form 477 data on mass market broadband service to determine the extent to which they serve as evidence of the presence of network facilities capable of delivering reasonably competitive BDS over the short- to medium-term (three to five years) in A-CAM areas? We seek comment on the data, methodologies, and modeling used to develop the A-CAM study area boundaries, including state-level location density data, the A-CAM model, and geocoded location data submitted to USAC and the extent they can assist us in analyzing the BDS market in A-CAM areas.

    45. To the extent the Commission's existing data sources are insufficient, we seek data from commenters on facilities-based BDS providers serving A-CAM areas that would help us to ascertain markets with reasonably competitive conditions to justify lighter touch regulatory treatment. Are there existing data similar to data collected as part of the 2015 Collection that would help us better understand or estimate the location of BDS demand in A-CAM areas, including consumers and business locations served (or readily served) by BDS, as well as data on market structure, demand, pricing, and competitive pressures in those areas? Does similar data exist that could identify BDS demand for transport in A-CAM areas? If we have to collect new data, what data should we collect and what is the most efficient way to collect it? Does the cost of conducting and analyzing such a data collection outweigh the benefits of conducting an A-CAM specific market analysis?

    46. Product Market. If we conduct a new market analysis, should we use the same analysis to define the product market for lower speed TDM end user channel terminations and transport in A-CAM areas as we used to define the product market for BDS in price cap areas in the BDS Order? We anticipate that the product market for BDS in A-CAM areas will closely resemble the BDS product market delineated in the BDS Order for price cap areas and seek comment on this belief and on potential differences that may exist between the two types of markets. Despite these similarities, we recognize that there may be differences between price cap areas and A-CAM areas that may affect the BDS product markets in these areas. Are there products that were marketed or supplied to BDS customers in price cap areas that are not in demand, marketed, or otherwise supplied in A-CAM areas as a BDS substitute, and to what extent do products that are not in the same BDS product market nonetheless exert competitive pressure on prices for BDS in A-CAM areas?

    47. Geographic Market. In the BDS Order, the Commission defined the geographic market in terms of “the area to which consumers can `practically turn for alternative sources,' and within which providers can reasonably compete.” Consistent with the BDS Order, should we define the geographic market as an area where customers have medium-term competitive choices for BDS based on customer locations within a half mile of a location served over the facilities of at least one non-incumbent competitive provider? We encourage commenters to provide data and analysis to support their positions.

    48. Competitive Entry. As part of our analysis, and consistent with the BDS Order, should we consider how varying market characteristics impact entry by non-incumbent competing BDS providers in A-CAM areas, along with evidence of entry barriers being overcome by traditional and non-traditional competing providers? We seek comment on identifiable market features in A-CAM areas, including carrier market share, number and size distribution of competing firms, the nature of competitors' barriers to entry, the availability of reasonably substitutable services, the level of demand elasticity, and whether a firm controls bottleneck facilities to help us identify where competition is sufficient to make imposing the burdens of ex ante pricing regulation unnecessary and counterproductive.

    49. We seek comment on the number, type, size, concentration, and market share of nearby BDS competitors (i.e., within a half-mile) that operate in A-CAM study areas, in the form of facilities-based wired communications network providers, that temper prices to reasonably competitive levels in the short- to medium-term.

    50. Consistent with the BDS Order, should we consider as part of our market analysis the extent to which providers and potential providers face barriers to enter the BDS marketplace in A-CAM areas? We seek comment on the timeliness, likelihood, and sufficiency of a competitor's entry into the BDS market in A-CAM areas. We seek comment on the barriers facing carriers for both lower speed TDM end user channel terminations and transport. How are the markets different? For example, in the BDS Order, the Commission found lower entry barriers for deploying TDM transport services than for end user channel termination services. Is this accurate for A-CAM carrier study areas as well? Would buildout and entry by an entrant be rapid enough to render incumbent LECs' attempts to set prices above competitive levels unprofitable? Would such entry occur over a longer timeframe, such as three to five years, and, if so, would that justify taking the same light touch regulatory approach here as taken in the BDS Order? To what extent is market entry profitable (and thus likely) based on projected expenditures and revenues from customers and potential customers? Is the presence of a second provider in the relevant geographic market, whether a non-incumbent LEC or a cable operator, sufficient to constrain prices to competitive levels? To what extent does the half-mile test that was derived from the market analysis of price cap areas relate to demand densities in those areas that may not be present in A-CAM areas? Finally, we seek comment on the extent incumbents and non-incumbent entrants, particularly cable companies, are upgrading or building out their networks to sources of BDS demand in A-CAM study areas.

    2. Updating CMT Results for A-CAM Carriers

    51. The BDS Order directed the Bureau to review the existing price cap CMT every three years using the second prong of the test based on Form 477 data. If we adopt a CMT for electing A-CAM carriers, we seek comment on whether we should conduct similar periodic reviews of any CMT we adopt for such carriers. For administrative ease, should we target the timing of our initial review of the results of a CMT for electing A-CAM carriers to coincide with our initial review of price cap served areas? Under the BDS Order, counties that were determined to be competitive were no longer subject to review of their status in subsequent updates of the CMT. Should we treat A-CAM areas similarly? If not, we seek comment on alternatives to grandfathering those A-CAM areas.

    3. Regulation in Areas Deemed Competitive by the CMT

    52. If we adopt a CMT for areas served by electing A-CAM carriers, consistent with the BDS Order, we propose to refrain from ex ante pricing regulation for lower speed transport and TDM end-user channel terminations in areas deemed competitive. We also seek comment on whether forbearing from section 203 tariffing requirements for these services in these areas would meet the statutory criteria of section 10 of the Act. As we did in the BDS Order, we recognize the continuing applicability and importance of sections 201, 202, and 208 of the Act to ensure that consumers will remain protected from unjust and unreasonable rates in areas deemed competitive. We seek comment on this proposal.

    IV. Removing Ex Ante Pricing Regulation From Packet-Based BDS and TDM-Based BDS Providing Bandwidth in Excess of a DS3

    53. We also seek comment on whether we should eliminate ex ante pricing regulation of packet-based and TDM-based business data services providing bandwidth in excess of a DS3 offered by those carriers that elect to move their lower speed BDS offerings from rate-of-return regulation to incentive regulation. If so, should we provide 36 months for such a transition? If we transition these high-speed services, consistent with the BDS Order, we would continue to recognize the applicability and importance of sections 201, 202, and 208 of the Act in protecting consumers from unjust and unreasonable practices.

    54. With respect to price cap areas, the Commission's market analysis did “not show compelling evidence of market power” in incumbent LECs' provision of packet-based services and higher capacity TDM-based business data services (in excess of the bandwidth of a DS3), particularly for higher bandwidth services. We seek comment on whether these observations offer any insights on the nature and extent of competition in A-CAM areas. Are markets for higher capacity TDM-based BDS offerings (above the bandwidth of a DS3) and packet-based services likely to be sufficiently competitive in A-CAM areas over the next three to five years such that the harms of price regulation in these markets, most notably in terms of discouraging the extension of competition, are likely to be greater than any harms that may occur were we not to regulate? Are these markets sufficiently competitive to outweigh any benefits of ex ante pricing regulation? Parties are encouraged to provide evidence to support their arguments. We seek comment on the extent to which Commission or other data could facilitate our evaluation of competition in these areas, including Form 477 mass market broadband data, A-CAM study area boundary data, A-CAM modeling data, and geocoded location data submitted to USAC. We invite commenters to identify specific data sources that could be useful to our inquiry and to explain their utility.

    55. The Commission also found that sales of TDM-based BDS by price cap carriers were declining due to product substitution, including customer loss to cable operators and other competitive providers. To what extent are purchasers substituting packet-based services for TDM-based services in A-CAM areas? Are TDM-based services declining in A-CAM areas at a rate similar to the decline in price cap areas? The Commission found declining prices for packet-based BDS across all bandwidths in price cap areas to be evidence of competitive conditions. Have prices for packet-based BDS in A-CAM areas also declined across all bandwidths? Are lower bandwidth packet-based services (at or below the level of a DS3) experiencing price changes in A-CAM areas as in price cap areas?

    56. We recognize that price cap carriers' provision of these services was generally relieved of ex ante pricing regulation prior to the BDS Order in a series of forbearance decisions. In contrast, A-CAM carriers provide these services subject to rate-of-return regulation. Would removing ex ante pricing regulation for these services for electing A-CAM carriers encourage competitive entry and network investment and provide an incentive for the transition to packet-based technologies as we found to be the case for price cap carriers? In the foregoing, we seek comment on the parameters of this potential transition. Are there other issues we should consider as we evaluate whether to remove ex ante pricing regulation for all packet-based and TDM-based services providing bandwidth in excess of a DS3 offered by electing A-CAM carriers?

    57. We seek comment on granting forbearance from section 203 tariffing requirements for A-CAM carriers' provision of certain BDS after they elect incentive regulation. In the BDS Order, the Commission granted forbearance from the application of section 203 to each price cap LEC in its provision of any packet-based BDS and of circuit-based BDS above the DS3 bandwidth level. The Commission also granted forbearance from the application of section 203 to price cap incumbent LECs in their provision of BDS that comprise transport pursuant to section 69.709(a)(4) of the Commission's rules, and to DS1 and DS3 end user channel termination services and any other special access services currently tariffed in competitive counties or in non-competitive counties previously subject to Phase II pricing flexibility. The Commission concluded that “[w]here a price cap LEC provides these services in competitive markets, application of section 203, including its tariffing requirement, is not necessary to ensure that the LEC's charges, practices, classifications, or regulations are just, reasonable, and not unjustly or unreasonably discriminatory. Nor is application of section 203 necessary to protect consumers.”

    58. While the Petition does not expressly request forbearance from tariffing requirements, we seek comment on whether to de-tariff certain electing A-CAM BDS offerings by granting forbearance from section 203 tariffing obligations. We seek comment on whether we should remove ex ante pricing regulation of packet-based BDS and higher capacity TDM-based services providing bandwidth in excess of a DS3 for A-CAM carriers that elect incentive regulation. Would forbearing from the tariffing requirement for these services meet the statutory criteria set by section 10 of the Act? Would de-tariffing these services promote competitive market conditions? Would de-tariffing reduce compliance costs, increase regulatory flexibility, increase incentives to invest in innovative products and services and thereby facilitate the technology transitions, or otherwise be in the public interest as the Petition asserts? If the Commission decides to forbear from section 203, should it mandate or simply allow de-tariffing? Would mandatory de-tariffing further promote competition and drive down prices by requiring electing carriers to negotiate agreements to provide the de-tariffed services that they offer?

    V. Transition Mechanisms

    59. We seek comment on how to transition electing A-CAM carriers and the areas they serve if the Commission adopts a new lighter touch regulatory framework for their provision of BDS. The BDS Order provided certain mechanisms to facilitate the transition to the new regulatory framework that it established for price cap carriers. These mechanisms included a thirty-six month transition period in which de-tariffing is permitted but not mandated, a six month freeze of tariffed rates for end-user channel terminations in newly deregulated counties, and a grandfathering of existing contractual or other long-term BDS arrangements. We seek comment on the appropriateness of these and other mechanisms to aid in the transition of electing A-CAM areas to any new regulatory framework we establish for them. Are there other transition issues and mechanisms that may be unique to A-CAM carriers and the areas they serve that would help ensure an orderly transition? For example, should the Commission consider any additional mechanisms that would facilitate transitions for electing A-CAM carriers that participate in NECA pooling arrangements?

    VI. Other Carriers

    60. We propose to offer the opportunity to elect the same type of regulatory relief that we propose to provide to electing A-CAM carriers to other rate-of-return carriers that currently receive fixed universal service support, rather than receiving support based on their costs. Such carriers include traditional rate-of-return carriers that are affiliated with price cap carriers and are therefore receiving support based on the Connect America Cost Model (CACM); rate-of-return carriers participating in the Commission's “Alaska Plan”; and carriers that accept further offers of A-CAM support.

    61. Like A-CAM carriers, the members of each of these three groups of rate-of-return carriers all receive non-cost-based universal service support and therefore are routinely required to prepare cost studies only for their BDS. What are the costs and benefits of relieving them of existing pricing regulations and allowing them to elect the type of incentive pricing regulation we propose? Should we modify our proposed incentive regulation in any way to reflect differences in any of these types of carriers' circumstances? Are there any other types of carriers that should be eligible for our incentive regulation proposal and, if so, based on what rationale?

    VII. ITTA/USTelecom Petition

    62. Throughout this NPRM, we seek comment on various aspects of the Petition for rulemaking filed by ITTA and USTelecom. However, the Petition differs in some ways from what we propose in this NPRM. Most fundamentally, it proposes that subject to certain conditions we simply allow model-based carriers to elect the same regulatory framework that the BDS Order provided for price cap carriers. It also proposes providing electing A-CAM carriers an opportunity for a one-time unfreezing of category relationships for purposes of jurisdictional separations. To the extent we have not already done so, we invite comment on the Petition and each of the proposals made therein.

    VIII. Proposed Rule Changes

    63. We seek comment on the proposed rule changes that can be found in Appendix A. Those rule changes largely track the proposals made in this NPRM. They also include some corrections to what appear to be inaccuracies in our current rules. These proposed changes include changing (1) the cross reference to § 61.3(aa) in § 51.903(g) to § 61.3(bb), (2) the cross reference to § 61.3(ee) in § 61.41(d) to § 61.3(ff), (3) the cross reference to § 61.3(x) in § 69.114 to § 61.3(ff), and (4) the cross reference to § 69.801(g) in § 69.805(a) to § 69.801(h). These cross references have been rendered inaccurate because of changes in the definitions contained in § 61.3 that occurred in other rulemaking proceedings or because they were incorrectly stated when added to our rules.

    IX. Procedural Matters

    64. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by Rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    A. Initial Regulatory Flexibility Analysis

    65. Pursuant to the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this Notice of Proposed Rulemaking. The text of the IRFA is set forth in Appendix B. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comment on the Notice of Proposed Rulemaking. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

    B. Paperwork Reduction Act

    66. This document may contain proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    X. Initial Regulatory Flexibility Analysis

    67. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    A. Need for, and Objectives of, the Proposed Rules

    68. In this NPRM, we propose changes to, and seek comment on, our rate-of-return and business data services rules as they are applied to rate-of-return carriers that receive universal service support based on the Alternative-Connect America Cost Model (A-CAM), or under the Commission's universal service support mechanism for Alaska-based carriers (Alaska Plan), or is an affiliate of a price cap local exchange carrier operating pursuant to a waiver of § 61.41 of our rules. In the NPRM, the Commission proposes to adopt a form of incentive regulation for A-CAM carriers' provision of business data services (BDS), conduct a market analysis to evaluate the characteristics of BDS markets served by A-CAM carriers, and adopt a new lighter touch regulatory framework for A-CAM carriers' BDS that in most respects parallels the framework recently adopted for price cap carriers in the BDS Order.

    B. Legal Basis

    69. The legal basis for any action that may be taken pursuant to this NPRM is contained in sections 1, 4(i), 10, and 201(b) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 160, and 201(b).

    C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

    70. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and by the rule revisions on which the NPRM seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    1. Total Small Entities

    71. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.

    72. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

    73. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on these data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

    2. Broadband Internet Access Service Providers

    74. Internet Service Providers (Broadband). Broadband internet service providers include wired (e.g., cable, DSL) and VoIP service providers using their own operated wired telecommunications infrastructure fall in the category of Wired Telecommunication Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

    3. Wireline Providers

    75. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

    76. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent LEC services. The closest applicable size standard under SBA rules is for the category Wired Telecommunications Carriers as defined above. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. A total of 1,307 firms reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees.

    77. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined above. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Also, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, based on internally researched FCC data, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.

    78. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

    79. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined above. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicates that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our proposed rules.

    80. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, all operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these prepaid calling card providers can be considered small entities.

    81. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of this total, an estimated 857 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of toll resellers are small entities.

    82. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers as defined above. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to internally developed Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities that may be affected by rules adopted pursuant to the Second Further Notice of Proposed Rulemaking.

    83. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities.

    84. Prepaid Calling Card Providers. The SBA has developed a definition for small businesses within the category of Telecommunications Resellers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's Form 499 Filer Database, 500 companies reported that they were engaged in the provision of prepaid calling cards. The Commission does not have data regarding how many of these 500 companies have 1,500 or fewer employees. Consequently, the Commission estimates that there are 500 or fewer prepaid calling card providers that may be affected by the rules.

    4. Wireless Providers—Fixed and Mobile

    85. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

    86. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

    87. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions.

    88. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, a little less than one third of these entities can be considered small.

    5. Satellite Service Providers

    89. Satellite Telecommunications Providers. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

    6. Cable Service Providers

    90. Because section 706 requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.

    91. Cable and Other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature (e.g. limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA has established a size standard for this industry stating that a business in this industry is small if it has 1,500 or fewer employees. The 2012 Economic Census indicates that 367 firms were operational for that entire year. Of this total, 357 operated with less than 1,000 employees. Accordingly we conclude that a substantial majority of firms in this industry are small under the applicable SBA size standard.

    92. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but eleven cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

    93. Cable System Operators (Telecom Act Standard). The Communications Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” There are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

    94. All Other Telecommunications. “All Other Telecommunications” is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, we estimate that the majority of All Other Telecommunications firms are small entities that might be affected by our action.

    7. Electric Power Generators, Transmitters, and Distributors

    95. Electric Power Generators, Transmitters, and Distributors. This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The closest applicable SBA category is “All Other Telecommunications”. The SBA's small business size standard for “All Other Telecommunications,” consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, we estimate that under this category and the associated size standard the majority of these firms can be considered small entities.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    96. This NPRM proposes changes to, and seeks comment on, the Commission's rate-of-return and business data services rules. The objective of the proposed modifications is to reduce the unnecessary regulatory burdens and inflexibility of rate-of-return regulation for BDS services for A-CAM carriers, which are for the most part small businesses. These rule modifications would provide additional incentives for competitive entry, network investment and the migration to IP-based network technologies and services. The NPRM seeks comment on proposed rules that would generally reduce compliance requirements for A-CAM carriers that choose to opt into the new incentive regulation and regulatory framework for the provision of BDS.

    97. Under the Commission's rate-of-return rules, rates for business data services are based on costs derived from carrier-specific cost studies which represent a significant compliance burden for A-CAM carriers relative to their overall revenues. The NPRM proposes to transition these carriers to a form of incentive regulation that will enable these LECs to significantly reduce these compliance costs. The NPRM also proposes a new regulatory framework for A-CAM carriers' BDS that would in many cases eliminate ex ante pricing regulation and tariffing requirements for carriers electing incentive regulation.

    E. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    98. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.

    99. The rule changes proposed by the NPRM would reduce the economic impact of the Commission's rules on A-CAM carriers that elect incentive regulation in the following ways. Electing A-CAM carriers would no longer be required to prepare annual cost studies to justify their BDS rates. Such carriers would also be freed of ex ante pricing regulation for many of their BDS offerings, including packet-based BDS, circuit-based BDS above a DS3 bandwidth (about 45 Mbps) such as OCn services, and circuit-based end user channel terminations (e.g. DS1 and DS3) in geographic areas deemed to be competitive by a competitive market test. These proposed rule changes represent alternatives to the Commission's current rules that would significantly minimize the economic impact of those rules on electing A-CAM LECs. Finally, we seek comment as to any additional economic burden incurred by small entities that may result from the rule changes proposed in the NPRM.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    100. None.

    XI. Ordering Clauses

    101. Accordingly, it is ordered, pursuant to sections 1, 4(i), 10, and 201(b) of the Communication Act of 1934, as amended, 47 U.S.C. 151, 154(i), 160, and 201(b) that the Petition for Rulemaking filed by ITTA and USTelecom in this proceeding is granted to the extent described herein.

    102. It is further ordered, pursuant to sections 1, 4(i), 10, and 201(b) of the Communication Act of 1934, as amended, 47 U.S.C. 151, 154(i), 160, and 201(b) that this Notice of Proposed Rulemaking is adopted.

    103. It is further ordered, Pursuant to Section 220(i) of the Communications Act, 47 U.S.C. 220(i), that notice be given to each state commission of the above rulemaking proceeding, and that the Secretary shall serve a copy of this NPRM on each state commission.

    104. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects 47 CFR Part 1

    Communications common carriers, Equal employment opportunity, Reporting and recordkeeping requirements, Telecommunications, Television.

    47 CFR Part 32

    Communications common carriers, Reporting and recordkeeping requirements, Telephone, Uniform System of Accounts.

    47 CFR Part 51

    Communications common carriers, Telecommunications.

    47 CFR Parts 61 and 69

    Communications common carriers, Reporting and recordkeeping requirements, Telephone.

    Federal Communications Commission. Marlene Dortch, Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 32, 51, 61 and 69 as follows:

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

    47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 1403, 1404, 1451, and 1452.

    2. Section 1.1409 is amended by revising paragraph (g) to read as follows:
    § 1.1409 Commission consideration of the complaint.

    (g) A price cap company, or a rate-of-return carrier electing to provide service pursuant to § 61.50 of this chapter, opts-out of Part 32 may calculate attachment rates for its poles, ducts, conduits, and rights of way using either Part 32 accounting data or GAAP accounting data. A company using GAAP accounting data to compute rates to attach to its poles, ducts, conduits, and rights of way in any of the first twelve years after opting-out must adjust (increase or decrease) its annually computed GAAP-based rates by an Implementation Rate Difference for each of the remaining years in the period. The Implementation Rate Difference means the difference between attachment rates calculated by the carrier under Part 32 and under GAAP as of the last full year preceding the carrier's initial opting-out of Part 32 USOA accounting requirements.

    PART 32—UNIFORM SYSTEM OF ACCOUNTS FOR TELECOMMUNICATIONS COMPANIES 3. The authority citation for part 32 continues to read as follows: Authority:

    47 U.S.C. 219, 220 as amended, unless otherwise noted.

    4. Section 32.1 is revised to read as follows:
    § 32.1 Background

    The revised Uniform System of Accounts (USOA) is a historical financial accounting system which reports the results of operational and financial events in a manner which enables both management and regulators to assess these results within a specified accounting period. The USOA also provides the financial community and others with financial performance results. In order for an accounting system to fulfill these purposes, it must exhibit consistency and stability in financial reporting (including the results published for regulatory purposes). Accordingly, the USOA has been designed to reflect stable, recurring financial data based to the extent regulatory considerations permit upon the consistency of the well-established body of accounting theories and principles commonly referred to as generally accepted accounting principles (GAAP). The rules of this part, and any other rules or orders that are derivative of or dependent on these Part 32 rules, do not apply to price cap companies, and rate-of-return telephone companies offering business data services pursuant to § 61.50 of this chapter, that have opted-out of USOA requirements pursuant to the conditions specified by the Commission in section 32.11(g).

    5. Section 32.11 is amended by revising paragraph (g) to read as follows:
    § 32.11 Companies Subject to this part.

    (g) Notwithstanding subsection (a), a price cap company, or a rate-of-return telephone company offering business data services pursuant to § 61.50 of this chapter, that elects to calculate its pole attachment rates pursuant to section 1.1409(g) of this chapter will not be subject to this Uniform System of Accounts.

    PART 51—INTERCONNECTION 6. The authority citation for part 51 continues to read as follows: Authority:

    47 U.S.C. 151-55, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302.

    7. Section 51.903 is amended by revising paragraph (g) to read:
    § 51.903 Definitions.

    (g) Rate-of-Return Carrier is any incumbent local exchange carrier not subject to price cap regulation as that term is defined in § 61.3(bb) of this chapter, but only with respect to the territory in which it operates as an incumbent local exchange carrier.

    PART 61—TARIFFS 8. The authority citation for part 61 continues to read as follows: Authority:

    Secs. 1, 4(i), 4(j), 201-05 and 403 of the Communications Act of 1934, as amended; 47 U.S.C. 151, 154(i), 154(j), 201-05 and 403, unless otherwise noted.

    9. Section 61.41 is amended by revising paragraph (d) and adding paragraph (f) to read as follows:
    § 61.41 Price cap requirements generally.

    (d) Except as provided in paragraph (e) of this section, local exchange carriers that become subject to price cap regulation as that term is defined in § 61.3(ff) shall not be eligible to withdraw from such regulation.

    (f) Notwithstanding the requirements of paragraphs (c) and (d) of this section, a telephone company subject to rate-of-return regulation that is affiliated with a price cap local exchange carrier may provide business data services pursuant to § 61.50 without converting other services to price cap regulation.

    10. Section 61.50 is added to read as follows:
    § 61.50 Incentive regulation of rate-of-return carrier provision of business data services.

    (a) A rate-of-return carrier, as defined in § 51.903(g), has the option to offer business data services to customers pursuant to this section if the carrier

    (1) Receives universal service payments pursuant to the Alternative-Connect America Cost Model pursuant to § 54.311;

    (2) Is an affiliate of a price cap local exchange carrier operating pursuant to a waiver of § 61.41; or

    (3) Receives universal service payments pursuant to § 54.306.

    (b) A rate-of-return carrier may not elect to offer business data services to customers pursuant to this section unless it notifies the Chief of the Wireline Competition Bureau at least 120 days before the effective date of the election. Carriers may only elect this option to be effective on July 1, [year].

    (c) A rate-of-return carrier may elect to offer business data services pursuant to this section only if all affiliated rate-of-return carriers make the election.

    (d) A rate-of-return carrier electing to offer business data services under this section may continue to participate in the NECA Traffic Sensitive Pool for access services other than business data services.

    (e) A rate-of-return carrier electing to offer business data services pursuant to this section shall employ the procedures outlined in §§ 61.41 through .49 to adjust its indexes to the extent those sections are applicable to business data services, except that:

    (1) For the special access basket specified in § 61.42(d)(5), the value of X for local exchange carriers offering service under this section shall be 2.0% effective July 1, [year]; and

    (2) Exogenous costs shall be allocated to business data services based on relative revenues, including any universal service support amounts.

    (f) Tariffs offering business data services pursuant to this section may offer those business data services at different rates in different study areas.

    (g) A rate-of-return carrier offering business data services pursuant to this section may make a low-end adjustment pursuant to § 61.45(d)(1)(vii) of this subpart unless it:

    (1) Exercises the regulatory relief pursuant to paragraph (j) of this section in any part of its service region; or

    (2) Exercises the option to use Generally Accepted Accounting Principles rather than the Part 32 Uniform System of Accounts pursuant to § 32.11(g).

    (h) Rate-of-return carriers electing to offer business data services pursuant to this section may offer transport and end user channel terminations that include:

    (1) Volume and term discounts;

    (2) Contract-based tariffs, provided that:

    (i) Contract-based tariff services are made generally available to all similarly situated customers;

    (ii) The rate-of-return carrier excludes all contract-based tariff offerings from incentive regulation pursuant to § 61.42(f) of this subpart;

    (3) Ability to file tariff revisions on at least one day's notice, notwithstanding the notice requirements for tariff filings specified in § 61.58 of this chapter.

    (j) A rate-of-return carrier electing to offer business data services pursuant to this section shall comply with the requirements of section 69.805 of this Chapter.

    (k) The regulation of other services offered by a rate-of-return carrier that offers business data services pursuant to this section shall not be modified as a result of the requirements of this section.

    11. Section 61.55 is amended by revising paragraph (a) to read as follows:
    § 61.55 Contract-based tariffs.

    (a) This section shall apply to price cap local exchange carriers permitted to offer contract-based tariffs under § 1.776 or § 69.805 of this chapter, as well as to the offering of business data services by rate-of-return carriers pursuant to § 61.50 of this part.

    PART 69—ACCESS CHARGES 12. The authority citation for part 69 continues to read as follows: Authority:

    47 U.S.C. 154, 201, 202, 203, 205, 218, 220, 254, 403.

    13. Section 69.114 is amended by revising paragraph (a) to read as follows:
    § 69.114 Special Access.

    (a) Appropriate subelements shall be established for the use of equipment or facilities that are assigned to the Special Access element for purposes of apportioning net investment, or that are equivalent to such equipment or facilities for companies subject to price cap regulation as that term is defined in § 61.3(ff) of this chapter.

    14. Section 69.805 is amended by revising paragraph (a) to read as follows:
    § 69.805 Prohibition on certain non-disclosure agreement conditions.

    (a) In markets deemed non-competitive, buyers and sellers of business data services shall not enter into a tariff, contract-based tariff, or commercial agreement, including but not limited to master service agreement, that contains a non-disclosure agreement as defined in § 69.801(h), that restricts or prohibits disclosure of information to the Commission, or requires a prior request or legal compulsion by the Commission to effect such disclosure.

    [FR Doc. 2018-10338 Filed 5-16-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 171031999-8428-01] RIN 0648-BH39 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery of the South Atlantic Region; Amendment 43 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Amendment 43 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would allow for the harvest of red snapper in South Atlantic Federal waters. This proposed rule would revise red snapper commercial and recreational annual catch limits (ACL). The purpose of this proposed rule is to minimize adverse socio-economic effects to fishermen and fishing communities that utilize red snapper as part of the snapper-grouper fishery, while preventing overfishing from occurring and continuing to rebuild the red snapper stock.

    DATES:

    Written comments on the proposed rule must be received by June 18, 2018.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by “NOAA-NMFS-2017-0148,” by either of the following methods:

    Electronic submission: Submit all electronic comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0148, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Frank Helies, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in required fields if you wish to remain anonymous).

    Electronic copies of Amendment 43 may be obtained from www.regulations.gov or the Southeast Regional Office website at http://sero.nmfs.noaa.gov. Amendment 43 includes an environmental assessment, regulatory impact review, Regulatory Flexibility Act (RFA) analysis, and fishery impact statement.

    FOR FURTHER INFORMATION CONTACT:

    Frank Helies, NMFS Southeast Regional Office, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery in the South Atlantic region is managed under the FMP and includes red snapper, along with other snapper-grouper species. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    Background

    Harvest of red snapper from South Atlantic Federal waters was prohibited in 2010 through a temporary interim rule and then through Amendment 17A to the FMP when the stock was determined to be overfished and undergoing overfishing (Southeast Data, Assessment, and Review (SEDAR) 15, 2009)(74 FR 63673, December 4, 2009; 75 FR 76874, December 9, 2010). Amendment 17A also implemented a 35-year red snapper rebuilding plan that began in 2010, and set the red snapper stock ACL at zero. In 2013, Amendment 28 to the FMP established a process that allowed red snapper harvest (ACL greater than zero) if total removals (landings plus dead discards) were less than the acceptable biological catch (ABC) in the previous fishing year (78 FR 44461, July 24, 2013). Using the process established through Amendment 28, limited harvest of red snapper was allowed in 2012, 2013, and 2014. However, because the estimated total removals of red snapper exceeded the ABC in 2014, 2015, and 2016, due to estimates of red snapper discards that were incidentally harvested as bycatch while targeting other species, there was no allowable harvest in 2015 and 2016. In 2017, as a result of new scientific information regarding the red snapper stock, NMFS allowed limited commercial and recreational harvest of red snapper by a temporary rule through emergency action pursuant to the Magnuson-Stevens Act (82 FR 50839, November 2, 2017).

    Status of the Stock

    The most recent stock assessment for South Atlantic red snapper, SEDAR 41 (2017), was completed in 2016 and subsequently revised in 2017. SEDAR 41 (2017) evaluated data through 2014 and determined the red snapper stock was overfished and that overfishing was occurring. The stock assessment indicated that overfishing was occurring because the estimated fishing mortality based on the average over the last three years of the assessment represented in the model (2012-2014) exceeded the maximum fishing mortality threshold. Though limited red snapper harvest was allowed in 2012-2014, a large majority of the estimated fishing mortality was attributed to very large and uncertain dead discard estimates when fishermen were targeting red snapper and species that co-occur with red snapper, such as vermilion snapper, gag, red grouper, black sea bass, gray triggerfish, greater amberjack, and scamp. The Council's Scientific and Statistical Committee (SSC) reviewed the SEDAR 41 (2017) stock assessment and indicated the estimate of recreational discards was the greatest source of uncertainty in the stock assessment. It was acknowledged in the assessment that discarding of red snapper has increased over time due to changes in minimum landing size to 20 inches (51 cm) in 1992, increases in abundance of young fish from above-average year classes in some recent years, the introduction of the moratorium in 2010 and 2011, and the small commercial catch limits and recreational bag limits in the mini-seasons for 2012 onwards. Because most of the catch is now discarded, the number of discards is dependent upon fisher recalls, and these estimates are expanded based on small sample size; thus, the quality of total fishery removals estimates is poor and uncertain, which will impact estimation of stock size and fishing mortality.

    In May 2016, the Council's Scientific and Statistical Committee (SSC) reviewed SEDAR 41 (2017) and had an extensive discussion of the uncertainties associated with the assessment. The SSC stated that the assessment was based on the best scientific information available, but noted the assessment findings were highly uncertain regarding to what extent overfishing was occurring (i.e., the actual numerical value of the current fishing mortality estimate), and regarding the measures of discards. The SSC indicated that the most significant sources of uncertainty in the assessment include: The stock-recruitment relationship, natural mortality at age, the age structure of the unfished population, the composition and magnitude of recreational discards (where dead discards greatly outnumbered the landings during the years 2012 through 2014), and potential changes in catch per unit effort (CPUE). The SSC developed its ABC recommendations based on SEDAR 41, and the total ABC recommendation for 2018, is 53,000 red snapper.

    The projections of yield streams used in SEDAR 41 (2017) included both landings and dead discards, which were added to obtain an estimate of the total removals. The SSC divided its 53,000 fish ABC recommendation into landed fish (18,000) and discarded fish (35,000). Because of the recent closures in 2015 and 2016 in the fishery, in January 2017 the Council requested that the NMFS Southeast Fishery Science Center (SEFSC) provide red snapper projections under the assumption that all fish caught are subsequently discarded, believing that such projections would be more informative for management. The SEFSC advised the Council in February 2017 that the requested projections were not appropriate for management use because uncertainty in the assessment was already large, and the uncertainty would increase with a more complete evaluation of the effect of the upcoming changes to Marine Recreational Information Program (MRIP). Recreational catch and effort data, including discards, are monitored through MRIP, which is transitioning from the current telephone survey design to a new mail survey design for estimating marine recreational private angler fishing effort.

    Additionally, in their February 2017 response, the SEFSC advised the Council that the uncertainty in the stock assessment inhibits the ability to set an ABC that can be effectively monitored. The SEFSC further stated in an April 2017 letter to the Council, that the use of an ABC based primarily on fishery discards for monitoring the effectiveness of management action is likely ineffective due to the high level of uncertainty in measures of discards and the change in the effort estimation methodology that will be implemented in the MRIP survey. NMFS has determined that, given the extreme uncertainty associated with the red snapper recreational discard estimates, it is not appropriate to rely on those discard estimates for the management of red snapper, and the division of the SSC's ABC recommendation of 53,000 fish into landed fish and discarded fish is unwarranted.

    The results of SEDAR 41 (2017) using data through 2014, indicated that the red snapper stock was still overfished, but was rebuilding in accordance with the rebuilding plan. NMFS sent the Council a letter on March 3, 2017, noting these results and the SEFSC's concerns regarding the substantial uncertainty in the assessment, and advising the Council that sufficient steps had been taken to address overfishing of red snapper while continuing to rebuild the stock through harvest prohibitions in 2015 and 2016.

    This determination is supported by a significant increase in stock biomass since 2010 to levels not seen since the 1970's, and the increasing abundance of older age classes (SEDAR 41 2017). Additional support for the determination comes from fishery-independent information collected through the Southeast Reef Fish Survey (SERFS) program, and the East Coast Fisheries Independent Monitoring information conducted by the Florida Fish and Wildlife Conservation Commission (FWCC). According to the SERFS, the relative abundance (CPUE) of red snapper has increased since 2009, reaching the highest level observed in the entire time series (1990-2016) in 2016. In addition, the SERFS program notified the Council at the December 2017 meeting that red snapper relative abundance, as measured through fishery-independent monitoring, increased 18 percent from 2016 to 2017. According to the results of FWCC's study, CPUE for red snapper for hook gear (surveyed in 2012, 2014, 2016, and 2017) and the standardized index of abundance (surveyed from 2014-2017) was highest in 2017. The FWCC data also showed a greater number of large red snapper and a broader range of ages in recent years, which suggests rebuilding progress of the red snapper stock. Additionally, the increase in relative abundance of red snapper indicated by the fishery-independent CPUE indices has taken place despite landings during the limited seasons in 2012-2014 and despite the large number of estimated red snapper dead discards during the harvest restrictions implemented for red snapper since 2010.

    As a result of the new scientific information regarding the red snapper stock, NMFS allowed limited harvest of red snapper beginning November 2, 2017, by a final temporary rule through emergency action (82 FR 50839, November 2, 2017). The amount of harvest allowed in the temporary rule was equivalent to the amount of observed landings in the 2014 fishing season, and this proposed rule would allow the same amount of harvest annually beginning in 2018. NMFS determined that allowing the same amount of harvest as occurred in 2014 was unlikely to result in overfishing or change the red snapper rebuilding time period. NMFS has determined that Amendment 43 is based on the best scientific information available. Additionally, the ACL proposed in Amendment 43 is less than the ABC provided by the SSC from SEDAR 41, in accordance with the Magnuson-Stevens Act and the National Standard 1 Guidelines. See 16 U.S.C. 1852(h)(6), 50 CFR 600.310(f)(4)(i).

    Management Measure Contained in This Proposed Rule

    Based on the actions in Amendment 28, the FMP currently contains total ABCs that are then divided, with one component for landings and another for discards. By changing the process for determining the ACL for red snapper established in Amendment 28, this proposed rule would implement management measures concerning the commercial and recreational harvest, beginning in 2018. Limited commercial and recreational harvest of red snapper would be allowed by implementing a total ACL of 42,510 fish, based on the landings observed during the limited red snapper season in 2014. This ACL is less than the SSC's most recent total ABC recommendation of 53,000 red snapper, and is less than the 79,000 fish landings component of the 135,000 fish total ABC projection for 2018 in Amendment 28. Based on the current sector allocation ratio developed by the Council for red snapper of 28.07 percent commercial and 71.93 percent recreational, the total ACL is divided into a commercial ACL of 124,815 lb (56,615 kg), round weight, and a recreational ACL of 29,656 fish. The commercial sector's ACL is set in pounds of fish because the commercial sector reports landings in weight. Therefore, weight is a more accurate representation of commercial landings. In this proposed rule, for the commercial sector, one red snapper is equivalent to 9.71 lb (4.40 kg), round weight. ACLs for the recreational sector are specified in numbers of fish, because the Council determined that numbers of fish are a more reliable estimate for that sector than specifying the ACL in weight of fish. Because surveys that estimate recreational landings collect information on numbers of fish and convert those numbers to weights using biological samples that are sometimes limited, the Council believes that there can be uncertainty in estimates of recreational landings by weight.

    Additional Proposed Changes to Codified Text not in Amendment 43

    To implement the limits on red snapper harvest described in Amendment 43, this proposed rule not only would amend the existing regulations to make the changes to the ACLs described above, but also would make other minor modifications to the existing regulations. Thus, the regulatory text of this proposed rule would implement several management measures in Amendment 43 that function as accountability measures (AMs) to constrain red snapper harvest to these ACLs. Specifically, new language in the regulatory text would set limits on commercial and recreational red snapper seasons by providing that recreational harvest begins on the second Friday in July, and that the recreational season consists of weekends only (Friday, Saturday, Sunday). Under Amendment 43 and the proposed rule's regulatory text, the length of the recreational fishing season would serve as the AM for the recreational sector. The length of the recreational red snapper season would be projected based on catch rate estimates from previous years, and the projected fishing season end-date would be announced in the Federal Register before the start of the season.

    Under Amendment 43 and the proposed rule's regulatory text, the commercial season would begin each year on the second Monday in July. If commercial landings reach or are projected to reach the commercial ACL, then the commercial AM would close the sector for the remainder of that current fishing year. NMFS would monitor commercial landings in-season, and if commercial landings reach or are projected to reach the commercial ACL, then NMFS would file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the fishing year. In 2018, if the recreational and commercial fishing seasons do not open exactly on these dates in July as described, the respective seasons would open as close to these dates as possible.

    In addition to setting sector ACLs and AMs for commercial and recreational harvest, this proposed rule would revise the temporal application of the current commercial trip limit of 75 lb (34 kg), gutted weight, and the recreational bag limit of 1 fish per person per day. In an effort to decrease regulatory discards (fish returned to the water because they are below the minimum size limit), no size limits would be implemented for either sector through this proposed rule.

    NMFS notes that current regulations contain a severe weather provision with respect to modifying the commercial and recreational sector season dates (50 CFR 622.183(b)(5)(ii)). The Regional Administrator (RA) has the authority to modify the season opening and closing dates if severe weather conditions exist. The RA would determine when severe weather conditions exist, the duration of the severe weather conditions, and which geographic areas are deemed affected by severe weather conditions. If severe weather conditions exist or if NMFS determines the commercial or recreational ACLs were not harvested and a reopening of either or both sectors in the current fishing year would be possible, the RA would file a notification to that effect with the Office of the Federal Register, and include in that notification an announcement of any change in the red snapper commercial and recreational fishing seasons. The regulatory text of this proposed rule does not alter this existing authority.

    The Council is currently developing additional amendments to the FMP that would consider other changes to red snapper management in the South Atlantic.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 43, the FMP, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS expects this rule would have economic benefits because it would allow for commercial and recreational harvest of red snapper that would not otherwise be expected to occur in the absence of this action.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.

    A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.

    This proposed rule would apply to all federally-permitted commercial vessels and recreational anglers that fish for or harvest red snapper in Federal waters of the South Atlantic. Although the proposed rule would apply to recreational anglers, including those that fish from charter vessels and headboats (for-hire vessels), it would not directly affect the business operations of for-hire vessels. For-hire vessels sell fishing services to recreational anglers. The proposed changes to red snapper management measures would not directly alter the services sold by these for-hire vessels. Any change in anglers' demand for these fishing services (and associated economic effects) as a result of the proposed rule would be secondary to any direct effect on anglers and, therefore, would be an indirect effect of the proposed rule. Because the effects on for-hire vessels would be indirect, they fall outside the scope of the RFA. Furthermore, for-hire captains and crew are allowed to retain red snapper under the recreational bag limit; however, they cannot sell these fish. As such, for-hire captains and crew would be directly affected only as recreational anglers. Recreational anglers who would be directly affected by this proposed rule are not considered small entities under the RFA, and are, therefore, outside the scope of this analysis. 5 U.S.C. 603. Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” 5 U.S.C. 601(6) and 601(3)-(5). Recreational anglers are not businesses, organizations, or governmental jurisdictions. In summary, only the impacts on commercial vessels will be discussed.

    As of July 10, 2017, there were 544 valid or renewable Federal South Atlantic snapper-grouper unlimited permits and 114 valid or renewable 225-lb trip-limited permits. Each of these commercial permits is associated with an individual vessel. Data from the years of 2012 through 2016 were used for the analysis in Amendment 43, and these data provided the basis for the Council's decisions. On average, from 2012 through 2016, there were only 85 federally-permitted commercial vessels with reported landings of red snapper. Their average annual vessel-level revenue from all species for 2012 through 2016 was approximately $88,000 (2016 dollars). Because the Federal commercial red snapper seasons were very short or did not occur during 2012 through 2016, this proposed action would likely affect more vessels than just those that reported red snapper landings during that time. On average, 582 vessels reported landings of any snapper-grouper species from 2012 through 2016, and their average annual vessel-level revenue from all species was approximately $44,000 (2016 dollars). The maximum annual revenue from all species reported by a single one of these vessels from 2012 through 2016 was approximately $1.38 million (2016 dollars).

    For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial vessels directly regulated by this proposed rule are believed to be small entities based on the NMFS size standard. No other small entities that would be directly affected by this action have been identified.

    Under the current regulations, because combined total commercial and recreational landings and dead discards exceeded the ABC in 2017, there would be no commercial red snapper harvest allowed in 2018. Assuming commercial and recreational red snapper dead discard rates in 2018 and subsequent years remain stable or increase (which is likely as the stock rebuilds), under the current regulations these full-year commercial red snapper harvest closures would be expected to continue for the foreseeable future.

    Amendment 43 would, however, allow for the commercial harvest of red snapper. It specifies a constant total ACL for red snapper equal to 42,510 fish. The proposed rule would set the commercial red snapper ACL at 124,815 lb (56,615 kg), round weight and the recreational ACL would be set at 29,656 fish. The proposed rule would be expected to increase total ex-vessel revenue by a range of $545,981 (2016 dollars) to $572,901 per year relative to the status quo (i.e., no commercial harvest). Dividing the total ex-vessel revenue per year by the total number of Federal commercial snapper-grouper permit holders, results in an average annual increase in ex-vessel revenue of $830 to $871 per vessel. Dividing the total ex-vessel revenue per year by the average number of commercial vessels that reported landings of any snapper-grouper species from 2012 through 2016, results in an increase in ex-vessel revenue of $938 to $984 per vessel. This would be a 2 percent increase in average annual vessel-level revenue. The annual commercial red snapper season would be expected to increase from 0 days to a range of 105 to 176 days, which would allow commercial vessels to supplement their harvests with red snapper for a substantial part of the fishing year. The economic benefits to each vessel would be expected to vary based on individual fishing practices; however, such distributional effects cannot be quantified with available data.

    The information provided above supports a determination that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. Because this rule, if implemented, is not expected to have a significant adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

    No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, the Paperwork Reduction Act does not apply to this proposed rule.

    List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Red snapper, South Atlantic.

    Dated: May 11, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.181, remove and reserve paragraph (b)(2) and add paragraph (c)(2) to read as follows:
    § 622.181 Prohibited and limited-harvest species.

    (c) * * *

    (2) Red snapper. Red snapper may only be harvested or possessed in or from the South Atlantic EEZ during the commercial and recreational seasons as specified in § 622.183(b)(5) and § 622.193(y). Any red snapper caught in the South Atlantic EEZ during a time other than the specified commercial or recreational seasons specified in § 622.193(y) must be released immediately with a minimum of harm. In addition, for a person on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, the prohibition on the harvest or possession of red snapper applies in the South Atlantic, regardless of where such fish are harvested or possessed, i.e., in state or Federal waters.

    3. In § 622.183, revise paragraph (b)(5)(i) to read as follows:
    § 622.183 Area and seasonal closures.

    (b) * * *

    (5) * * *

    (i) The commercial and recreational sectors for red snapper are closed (i.e., red snapper may not be harvested or possessed, or sold or purchased) in or from the South Atlantic EEZ, except as specified in § 622.193(y). Each year, NMFS will announce the season opening dates in the Federal Register. The commercial season will begin on the second Monday in July, unless otherwise specified. The recreational season, which consists of weekends only (Fridays, Saturdays, and Sundays) begins on the second Friday in July, unless otherwise specified. NMFS will project the length of the recreational fishing season and announce the recreational fishing season end date in the Federal Register. See § 622.193(y), for establishing the end date of the commercial fishing season.

    4. In § 622.187, revise paragraph (b)(9) to read as follows:
    § 622.187 Bag and possession limits.

    (b) * * *

    (9) Red snapper—1.

    5. In § 622.191, add paragraph (a)(9) to read as follows:
    § 622.191 Commercial trip limits.

    (a) * * *

    (9) Red snapper. Until the commercial ACL specified in § 622.193(y)(1) is reached, 75 lb (34 kg), gutted weight.

    6. In § 622.193, revise paragraph (y) to read as follows:
    § 622.193 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (y) Red snapper—(1) Commercial sector. The commercial ACL for red snapper is 124,815 lb (56,615 kg), round weight. See § 622.183(b)(5) for details on the commercial fishing season. NMFS will monitor commercial landings during the season, and if commercial landings, as estimated by the SRD, reach or are projected to reach the commercial ACL, the AA will file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the year. On and after the effective date of the closure notification, all sale or purchase of red snapper is prohibited and harvest or possession of red snapper is limited to the recreational bag and possession limits and only during such time as harvest by the recreational sector is allowed as described in § 622.183(b)(5). This bag and possession limit and the prohibition on sale/purchase apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested or possessed, i.e., in state or Federal waters.

    (2) Recreational sector. The recreational ACL for red snapper is 29,656 fish. The AA will file a notification with the Office of the Federal Register to announce the length of the recreational fishing season for the current fishing year. The length of the recreational fishing season for red snapper serves as the in-season accountability measure. See § 622.183(b)(5) for details on the recreational fishing season. On and after the effective date of the recreational closure notification, the bag and possession limits for red snapper are zero.

    [FR Doc. 2018-10510 Filed 5-16-18; 8:45 am] BILLING CODE 3510-22-P
    83 96 Thursday, May 17, 2018 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2017-0018] Draft Environmental Impact Statement and Preliminary Pest Risk Assessment for Permit for Release of Genetically Engineered Citrus tristeza virus AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice of availability.

    SUMMARY:

    We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental impact statement (EIS) and preliminary pest risk assessment (PRA) that evaluate the potential environmental impacts and plant pest risk associated with the proposed environmental release of genetically engineered Citrus tristeza virus. We are making the draft EIS and preliminary PRA available for public review and comment.

    DATES:

    We will consider all comments that we receive on or before June 25, 2018.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0018.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2017-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0018 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Alan Pearson, Chief, Plant Pests, and Protectants Branch, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1238; (301) 851-3944, email: [email protected] To obtain copies of the documents, contact Ms. Cindy Eck at (301) 851-3882, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Under the authority of the plant pest provisions of the Plant Protection Act (PPA), as amended (7 U.S.C. 7701 et seq.), the regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.” The regulations in § 340.2 contain a list of organisms considered to be regulated articles, including all members of groups containing plant viruses, and all insect viruses.

    The regulations in § 340.4(a) provide that any person may submit an application for a permit for the introduction of a regulated article to the Animal and Plant Health Inspection Service (APHIS). Paragraph (b) of § 340.4 describes the form that an application for a permit for the environmental release of a regulated article must take and the information that must be included in the application. In addition, paragraph (b) states that applications must be submitted at least 120 days in advance of the proposed release into the environment in order to allow for APHIS review. However, the 120-day review period would be extended if preparation of an environmental impact statement (EIS) is necessary.

    Under the provisions of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321 et seq.), Federal agencies must examine the potential environmental impacts of proposed Federal actions that may significantly affect the quality of the human environment before those actions can be taken. In accordance with NEPA, regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), U.S. Department of Agriculture regulations implementing NEPA (7 CFR part 1b), and APHIS' NEPA Implementing Procedures (7 CFR part 372), APHIS has considered how to properly examine the potential environmental impacts of issuing permits for the introduction of genetically engineered regulated articles into the United States.

    In a notice 1 published in the Federal Register on April 10, 2017 (82 FR 17179-17180, Docket No. APHIS-2017-0018), APHIS announced its intention to prepare an EIS in connection with the potential approval of an application from Southern Gardens Citrus Nursery, LLC, seeking a permit for the environmental release of genetically engineered Citrus tristeza virus (CTV) throughout Florida. The virus has been genetically engineered to express defensin proteins from spinach as a biological control approach to managing citrus greening disease in the State of Florida. Citrus greening disease, also called huanglongbing, was first detected in the United States in 2005 in Florida, and has since become a devastating disease of citrus in Florida.

    1 To view the notice and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0018.

    This approach for controlling citrus greening disease does not involve a genetically engineered tree. Instead, the gene from spinach that codes for the defensin protein will be delivered to the tree's circulatory system by the genetically engineered CTV. APHIS decided to prepare an EIS because of the scope of the proposed releases and to better understand the potential environmental impacts and the associated uncertainty related to permit issuance.

    APHIS solicited public comment for a period of 30 days ending May 10, 2017, as part of its scoping process to identify issues to address in the draft EIS. We received a total of 94 public comments. Issues most frequently cited in public comments on the notice included:

    • The potential for the genetically engineered CTV to change over time and the potential for recombination with other viruses;

    • Impacts to non-target species;

    • The potential for defensin proteins to be found in areas other than the phloem of the plant;

    • The potential for the genetically engineered CTV to become more transmissible;

    • The impacts to organic citrus growers; and

    • Health and safety concerns.

    The issues discussed in the draft EIS were developed by considering the public input from the Federal Register notice announcing the intention to draft an EIS. APHIS evaluated these issues to analyze the potential environmental impacts of CTV and included a discussion of these issues in the draft EIS.

    Therefore, in accordance with NEPA, APHIS' NEPA Implementing Procedures (7 CFR part 372), and 7 CFR part 340, APHIS is making available the draft EIS, as well as a preliminary pest risk assessment (PRA), for a 45 day public review and comment period. The draft EIS and preliminary PRA are available as indicated under ADDRESSES and FOR FURTHER INFORMATION CONTACT above.

    A notice of availability regarding the draft EIS was also published by the Environmental Protection Agency in the Federal Register on May 11, 2018 (82 FR 22060, Docket No. ER-FRL-9039-3).

    Done in Washington, DC, this 11th day of May 2018. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2018-10490 Filed 5-16-18; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Request for Revision of a Currently Approved Information Collection AGENCY:

    Rural Business and Cooperative Programs, Rural Business-Cooperative Service, USDA.

    ACTION:

    Proposed collection; Comments requested.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business and Cooperative Service's intention to request a revision for a currently approved information collection in support of the program for 7 CFR, part 1951, subpart R, “Rural Development Loan Servicing.”

    DATES:

    Comments on this notice must be received by July 16, 2018 to be assured of consideration.

    FOR FURTHER INFORMATION CONTACT:

    Lori Hood, Rural Business-Cooperative Service, USDA, STOP 3226, 1400 Independence Ave. SW, Washington, DC 20250-3226, Telephone: (202) 720-1400.

    SUPPLEMENTARY INFORMATION:

    Title: Intermediary Relending Program.

    OMB Number: 0570-0015.

    Expiration Date of Approval: September 30, 2018.

    Type of Request: Revision of a currently approved information collection and recordkeeping requirements.

    Abstract: The regulations contain various requirements for information from the intermediaries and some requirements may cause the intermediary to require information from ultimate recipients. The information requested is vital to RBS for prudent loan servicing, credit decisions, and reasonable program monitoring.

    Estimate of Burden: Public reporting for this collection of information is estimated to average 3 hours per response.

    Respondents: Non-profit corporations, public agencies, and cooperatives.

    Estimated Number of Respondents: 450.

    Estimated Number of Responses per Respondent: 8.3.

    Estimated Number of Responses: 3,741.

    Estimated Total Annual Burden on Respondents: 11,253 hours.

    Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division, at (202) 692-0040.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of Business and Cooperative Programs, including whether the information will have practical utility; (b) the accuracy of Business and Cooperative Programs estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave. SW, Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: May 3, 2018. Bette B. Brand, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2018-10549 Filed 5-16-18; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-932] Certain Steel Threaded Rod From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review and Rescission of Antidumping Duty Administrative Review, in Part; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Fastenal Canada Ltd. (Fastenal Canada) did not cooperate to the best of its ability and has based its margin on adverse facts available (AFA), and that RMB Fasteners Ltd. and IFI & Morgan Ltd. (RMB/IFI) did not have any reviewable transactions during the POR.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202.482.0413.

    SUPPLEMENTARY INFORMATION:

    Background

    On June 7, 2016, Commerce published the Initiation Notice of the eighth administrative review of the antidumping duty (AD) order on steel threaded rod (STR) from China.1 The period of review (POR) is April 1, 2016, through March 31, 2017. On September 26, 2017, we issued the AD questionnaire to RMB/IFI 2 and Fastenal Canada.3 On October 5, 2017, Fastenal Canada stated it would not participate in this administrative review.4 On October 13, 2017, RMB/IFI indicated it would have difficulty responding to the original questionnaire, and provided information demonstrating that it did not have sales of subject merchandise to the United States during the POR.5 On January 23, 2018, Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.6 RMB/IFI responded to Commerce's supplemental questionnaires between February 9 and February 15, 2018.7

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 26444, 26448-50 (June 7, 2017) (Initiation Notice).

    2 Commerce determined that these companies constituted a single entity in the investigation on steel threaded rod from China. See Certain Steel Threaded Rod from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 73 FR 58931 (October 8, 2008), unchanged in Certain Steel Threaded Rod from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 74 FR 8907 (February 27, 2009) (Final Determination). We have received no information in this review to call into question that finding.

    3See Commerce's letter to Fastenal Canada, dated September 26, 2017; Commerce's letter to RMB/IFI, dated September 26, 2017.

    4See Memo to the File, dated October 21, 2017, containing the Letter from Fastenal Canada, dated October 5, 2017.

    5See RMB/IFI's October 13, 2017, submission.

    6See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    7See RMB/IFI's February 9 and February 15, 2018, submission.

    Scope of the Order

    The merchandise covered by the order includes steel threaded rod. The subject merchandise is currently classifiable under subheading 7318.15.5051, 7318.15.5056, 7318.15.5090, and 7318.15.2095 of the United States Harmonized Tariff Schedule (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.8

    8 For a full description of the scope of the Order, see Memorandum from James Maeder, Associate Deputy Assistant Secretary, to Gary Taverman, Deputy Assistant Secretary for Enforcement and Compliance, “Certain Steel Threaded Rod from the People's Republic of China: Decision Memorandum for the Preliminary Results of the 2016-2017 Antidumping Duty Administrative Review” (Preliminary Decision Memo), dated concurrently with this notice.

    Rescission of Review, In Part

    Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” The petitioner, the only interested party to request an administrative review of any companies, timely withdrew its review requests with respect to 168 companies.9 As such, we are rescinding the administrative review with respect to all companies except Jiaxing Brother Standard Part Co., Ltd., RMB/IFI, Brother Holding Group Co. Ltd., Zhejiang Morgan Brother Technology Co. Ltd., and Fastenal Canada, in accordance with 19 CFR 351.213(d)(1).

    9See Appendix II.

    No Shipments

    On July 7, 2017, RMB/IFI filed a no-shipment certification, indicating that it did not export subject merchandise to the United States during the POR. During the course of this review, Commerce examined this no shipments claim and provides its analysis in the Preliminary Decision Memo. Based on the record evidence, we preliminarily determine that RMB/IFI did not have any reviewable transactions during the POR. In addition, we find that it is appropriate not to rescind the review, in part, in this circumstance, and to complete the review with respect to the above-named company, issuing appropriate instructions to U.S. Customs and Border Protection (CBP) based on the final results of the review.10 Should evidence contrary to RMB/IFI's no-shipments claims arise, we will address the issue in accordance with our governing statute and regulations.

    10See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694, 65694-65695 (October 24, 2011).

    Methodology

    Commerce is conducting this review in accordance with sections 751(a)(1)(B) and 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act). With respect to Fastenal Canada, because it did not respond to Commerce's requests for information, we relied on facts available, in accordance with section 776(a) of the Act. Further, because we find that Fastenal Canada did not act to the best of its ability, we drew an adverse inference in selecting from among the facts otherwise available, in accordance with section 776(b) of the Act. In addition, because Jiaxing Brother Standard Part Co., Ltd., Brother Holding Group Co. Ltd. and Zhejiang Morgan Brother Technology Co. Ltd. did not submit a separate rate application or certification, we preliminarily find that these companies have not demonstrated eligibility for separate rates, and accordingly, we are preliminarily assigning these companies the China-wide entity rate of 206.00 percent. For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memo.

    For a complete description of the events that followed the initiation of this review, see the Preliminary Decision Memo. A list of topics included in the Preliminary Decision Memo is included as Appendix I to this notice. The Preliminary Decision Memo is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Commerce building. In addition, a complete version of the Preliminary Decision Memo can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memo are identical in content.

    Preliminary Results of Review

    Commerce preliminarily determines that a dumping margin of 206.00 percent exists for Fastenal Canada for the period April 1, 2016, through March 31, 2017.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary results, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.11 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    11See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the Federal Register, pursuant to section 751(a)(3)(A) of the Act.

    Assessment Rates

    Upon issuance of the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.12 Commerce intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. We will instruct CBP to assess duties at the ad valorem margin rate published above. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any assessment rate calculated in the final results of this review is above de minimis. In addition, for any exporter under review which Commerce determines had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (i.e., at that exporter's rate) will be liquidated at the China-wide rate. 13 The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable. Commerce will assess duties only on entries of subject merchandise (i.e., Chinese-origin STR).

    12See 19 CFR 351.212(b)(1).

    13 For a full discussion of this practice, see Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For Fastenal Canada, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, then zero cash deposit will be required) and Commerce will collect cash deposits only on Fastenal Canada's Chinese-origin merchandise; (2) for previously investigated or reviewed Chinese and non-Chinese exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate published for the most recently completed period; (3) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the China-wide rate of 206.00 percent; and (4) for all non-Chinese exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Chinese exporter that supplied that non-Chinese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: May 3, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I

    List of Topics Discussed in the Preliminary Decision Memo:

    Summary 1. Background 2. Scope of the Order Discussion of the Methodology 1. Partial Rescission 2. Facts Otherwise Available 3. No Shipments 4. NME Country Status 5. Separate Rates 6. Companies Considered as Part of the China-Wide Entity

    Recommendation

    Appendix II

    The 168 Companies for which Commerce is rescinding the review:

    1. Aerospace Precision Corp. (Shanghai) Industry Co., Ltd. 2. Aihua Holding Group Co. Ltd. 3. Autocraft Industry Ltd. 4. Autocraft Industry (Shanghai) Ltd. 5. Billion Land Ltd. 6. Billion Technology Ltd. 7. Bolt Mfg. Trade Ltd. 8. Billiongold Hardware Co. Ltd. 9. Brighton Best International (Taiwan) Inc. 10. C and H International Corporation 11. Catic Fujian Co., Ltd. 12. Cci International Ltd. 13. Century Distribution Systems Inc. 14. Certified Products International Inc. 15. Changshu City Standard Parts Factory 16. China Friendly Nation Hardware Technology Limited 17. D.M.D. International Co. Ltd. 18. Da Cheng Hardware Products Co., Ltd. 19. Dalian Xingxin Steel Fabrication 20. Dongxiang Accuracy Hardware Co., Ltd. 21. Ec International (Nantong) Co., Ltd 22. Fastco (Shanghai) Trading Co., Ltd. 23. Fasten International Co., Ltd. 24. Fastwell Industry Co. Ltd. 25. Fook Shing Bolts & Nuts Co. Ltd. 26. Fuda Xiongzhen Machinery Co., Ltd. 27. Fuller Shanghai Co. Ltd. 28. Gem-Year Industrial Co. Ltd. 29. Guangdong Honjinn Metal & Plastic Co., Ltd. 30. Hainan Zhongyan United Development Co. 31. Haining Hifasters Industrial Co. 32. Haining Shende Imp. & Exp. Co. Ltd. 33. Hainan Zhongda Fastener Co., Ltd. 34. Haiyan Ai&Lun Standard Fastener Co. 35. Haiyan Chaoqiang Standard Fastener 36. Haiyan Dayu Fasterners Co., Ltd. 37. Haiyan Evergreen Standard Parts Co. Ltd. 38. Haiyan Fuxin High Strength Fastener 39. Haiyan Hatehui Machinery Hardware 40. Haiyan Hurras Import & Export Co. Ltd. 41. Haiyan Jianhe Hardward Co. Ltd. 42. Haiyan Julong Standard Part Co. Ltd. 43. Haiyan Shangchen Imp. & Exp. Co. 44. Haiyan Yuxing Nuts Co. Ltd. 45. Hangzhou Everbright Imp. & Exp. Co. Ltd. 46. Hangzhou Grand Imp. & Exp. Co., Ltd. 47. Hangzhou Great Imp. & Exp. Co. Ltd. 48. Hangzhou Lizhan Hardware Co. Ltd. 49. Hangzhou Prostar Enterprises Ltd. 50. Hangzhou Tongwang Machinery Co., Ltd. 51. Hilti (China) Ltd. 52. Hong Kong Sunrise Fasteners Co. Ltd. 53. Hong Kong Yichen Co. Ltd. 54. Honoble Precision (China) Mfg. 55. Intech Industries Shanghai Co., Ltd. 56. Jiangsu Innovo Precision Machinery 57. Jiangsu Jinhuan Fastener Co., Ltd. 58. Jiangsu Zhongweiyu Communication Equipment Co. Ltd. 59. Jiashan Steelfit Trading Co. Ltd. 60. Jiashan Zhongsheng Metal Products Co., Ltd. 61. Jiaxing Allywin Mfg. Co., Ltd. 62. Jiaxing Chinafar Standard 63. Jiaxing Sini Fastener Co., Ltd. 64. Jiaxing Jinhow Import & Export Co., Ltd. 65. Jiaxing Xinyue Standard Part Co. Ltd. 66. Jiaxing Yaoliang Import & Export Co. Ltd. 67. Jinan Banghe Industry & Trade Co., Ltd. 68. Kinfast Hardware (Shenzhen) Ltd. 69. King Socket Screw Company Ltd. 70. L&W Fasteners Company 71. Macropower Industrial Inc. 72. Mai Seng International Trading Co., Ltd. 73. MB Services Company 74. Midas Union Co., Ltd. 75. Nanjing Prosper Import & Export Corporation Ltd. 76. Nantong Runyou Metal Products 77. New Pole Power System Co. Ltd. 78. Ningbo Abc Fasteners Co., Ltd. 79. Ningbiao Bolts & Nuts Manufacturing Co. 80. Ningbo Beilun Milfast Metalworks Co. Ltd. 81. Ningbo Beilun Pingxin Hardware Co., Ltd. 82. Ningbo Dexin Fastener Co. Ltd. 83. Ningbo Dongxin High-Strength Nut Co., Ltd. 84. Ningbo Exact Fasteners Co., Ltd. 85. Ningbo Fastener Factory 86. Ningbo Fengya Imp. and Exp. Co. Ltd. 87. Ningbo Fourway Co., Ltd. 88. Ningbo Haishu Holy Hardware Import and Export Co. Ltd. 89. Ningbo Haishu Wit Import & Export Co. Ltd. 90. Ningbo Haishu Yixie Import & Export Co. Ltd. 91. Ningbo Jinding Fastening Piece Co., Ltd. 92. Ningbo MPF Manufacturing Co. Ltd. 93. Ningbo Panxiang Imp. & Exp., Co. Ltd. 94. Ningbo Seduno Imp. Exp. Co., Ltd. 95. Ningbo Qianjiu Instrument Case Factory 96. Ningbo Yili Import & Export Co., Ltd. 97. Ningbo Yinzhou Dongxiang Accuracy Hardware Co., Ltd. 98. Ningbo Yinzhou Foreign Trade Co., Ltd. 99. Ningbo Yinzhou Woafan Industry &Trade Co., Ltd. 100. Ningbo Zhenhai Beisuda Equipment Co. 101. Ningbo Zhenhai Jinhuan Fasteners 102. Ningbo Zhenghai Yongding Fastener Co., Ltd. 103. Ningbo Zhenhai Dingli Fastener Screw Co., Ltd. 104. Ningbo Zhongjiang High Strength Bolts Co. Ltd. 105. Ningbo Zhongjiang Petroleum Pipes & Machinery Co., Ltd. 106. Orient International Holding Shanghai Rongheng Intl Trading Co. Ltd. 107. Orient Rider Corporation Ltd. 108. Pol Shin Fastener (Zhejiang) Co. 109. Prosper Business and Industry Co., Ltd. 110. Qingdao Free Trade Zone Health Intl. 111. Qingdao Top Steel Industrial Co. Ltd. 112. Sampulse Industrial Co., Ltd. 113. Shaanxi Succeed Trading Co., Ltd. 114. Shanghai Autocraft Co., Ltd. 115. Shanghai Beitra Fasteners Co., Ltd. 116. Shanghai E-Heng Imp. & Exp. Co. Ltd. 117. Shanghai East Best Foreign Trade Co. 118. Shanghai East Best International Business Development Co., Ltd. 119. Shanghai Fortune International Co. Ltd. 120. Shanghai Furen International Trading 121. Shanghai Hunan Foreign Economic Co., Ltd. 122. Shanghai Jiabao Trade Development Co. Ltd. 123. Shanghai Nanshi Foreign Economic Co. 124. Shanghai Overseas International Trading Co. Ltd. 125. Shanghai Prime Machinery Co. Ltd. 126. Shanghai Printing & Dyeing and Knitting Mill. 127. Shanghai Printing & Packaging Machinery Corp 128. Shanghai Recky International Trading Co., Ltd. 129. Shanghai Sinotex United Corp. Ltd. 130. Shanghai Strong Hardware Co. Li 131. Shanghai Wisechain Fasteners Ltd. 132. Shenzhen Fenda Technology Co., Ltd. 133. Shenzhen Haozhenghao Technology Co. 134. Shijianzhuang Huitongxiang Li Trade 135. Soyoung Industrial Co., Ltd. 136. SRC Metal (Shanghai) Co., Ltd. 137. Suntec Industries Co., Ltd. 138. Suzhou Henry International Trading Co., Ltd. 139. T and C Fastener Co. Ltd. 140. T and L Industry Co. Ltd. 141. Taizhou Maixing Machinery Co. 142. Telsto Development Co., Ltd. 143. The Hoffman Group International 144. Tianjin Port Free Trade Zone 145. Tianjin Star International Trade Co., Ltd. 146. Tong Ming Entreprise Co., Ltd. 147. Tong Win International Co., Ltd. 148. Tri Steel Co., Ltd. 149. Wisechain Trading Limited 150. Wuxi Metec Metal Co. Ltd. 151. Xiamen Hua Min Imp. and Exp. Ltd. 152. Xiamen Rongxinda Industry Co., Ltd. 153. Xiamen Yuhui Import & Export Co., Ltd. 154. Yogendra International 155. Yuyao Hualun Imp. & Exp. Co., Ltd. 156. Zhangjiagang Ever Faith Industry Co. 157. Zhejiang Heirrmu Mechanical and Electrical Equipment Manufacturing Co Ltd. 158. Zhejiang Heiter Industries Co., Ltd. 159. Zhejiang Heiter Mfg & Trade Co. Ltd. 160. Zhejiang Jin Zeen Fasteners Co. Ltd. 161. Zhejiang Junyue Standard Part Co., Ltd. 162. Zhejiang Laibao Precision Technology Co. Ltd. 163. Zhejiang Metals & Minerals Imp & Exp Co. Ltd. 164. Zhejiang New Century Imp & Exp Co. Ltd. 165. Zhejiang New Oriental Fastener Co., Ltd. 166. Zhejiang Zhenglian Industry Development Co., Ltd. 167. Zhongsheng Metal Co., Ltd. 168. Zhoushan Zhengyuan Standard Parts Co., Ltd.
    [FR Doc. 2018-10546 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-067] Forged Steel Fittings From the People's Republic of China: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2017, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Katherine Johnson at 202-482-4929 or Irene Gorelik at (202) 482-6905, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce initiated this investigation on October 25, 2017.1 On February 2, 2018, Commerce postponed the preliminary determination of this investigation.2 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the preliminary determination of this investigation is now May 7, 2018.3

    1See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 50614 (November 1, 2017) (Initiation Notice).

    2See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations, 83 FR 4899 (February 2, 2018).

    3See Memorandum for the Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Forged Steel Fittings from the People's Republic of China,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The products covered by this investigation are forged steel fittings from China. For a complete description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. On March 7, 2018, Commerce issued a Preliminary Scope Decision Memorandum making certain preliminary revisions to the scope based on the comments received.7 Commerce received additional scope comments following the issuance of the Preliminary Scope Decision Memorandum, and based on those comments, made certain additional preliminary revisions to the scope. For a summary of the additional comments received, and Commerce's preliminary analysis and decision with respect to them, see the Second Preliminary Scope Decision Memorandum.8 See also the revised scope in Appendix I to this notice.9

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice, 82 FR at 50615.

    7See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated March 7, 2018 (Preliminary Scope Decision Memorandum).

    8See Memorandum, “Second Preliminary Scope Decision Memorandum,” dated concurrently with this notice (Second Preliminary Scope Decision Memorandum).

    9 The revised scope language also applies to the companion countervailing duty investigation of forged steel fittings from China.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). Commerce has calculated export prices in accordance with section 772(a) of the Act. Because China is a non-market economy, within the meaning of section 771(18) of the Act, Commerce has calculated normal value (NV) in accordance with section 773(c) of the Act. In addition, pursuant to section 776(a) and (b) of the Act, Commerce preliminarily has relied upon facts otherwise available, with adverse inferences, for the China-wide entity, including the single entity comprising Jiangsu Haida Pipe Fittings Group Company Ltd., its affiliated producer Haida Pipe Co., Ltd., and its affiliated reseller Yancheng L&W International Co., Ltd. For a full description of the methodology underlying Commerce's analysis, see the Preliminary Decision Memorandum.

    Combination Rates

    In the Initiation Notice, 10 Commerce stated that it would calculate producer/exporter combination rates for the respondents that are eligible for a separate rate in this investigation. Policy Bulletin 05.1 describes this practice.11

    10See Initiation Notice at 50618.

    11See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” (April 5, 2005) (Policy Bulletin 05.1), available on Commerce's website at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Preliminary Determination

    Commerce preliminarily determines that the following weighted-average dumping margins exist:

    Exporter Producer Estimated weighted-average dumping margin
  • (percent)
  • Both-Well (Taizhou) Steel Fittings Co., Ltd Both-Well (Taizhou) Steel Fittings Co., Ltd 7.42 Dalian Guangming Pipe Fittings Co., Ltd Yancheng Jiuwei Pipe Fittings Co., Ltd 7.42 Dalian Guangming Pipe Fittings Co., Ltd Yancheng Manda Pipe Industry Co., Ltd 7.42 Dalian Guangming Pipe Fittings Co., Ltd Yancheng Haohui Pipe Fittings Co., Ltd 7.42 Dalian Guangming Pipe Fittings Co., Ltd Jiangsu Haida Pipe Fittings Group Co., Ltd 7.42 Eaton Hydraulics (Ningbo) Co., Ltd Eaton Hydraulics (Ningbo) Co., Ltd 7.42 Eaton Hydraulics (Luzhou) Co., Ltd Eaton Hydraulics (Luzhou) Co., Ltd 7.42 Eaton Hydraulics (Luzhou) Co., Ltd Luzhou City Chengrun Mechanics Co., Ltd 7.42 Eaton Hydraulics (Luzhou) Co., Ltd Eaton Hydraulics (Ningbo) Co., Ltd 7.42 Jiangsu Forged Pipe Fittings Co., Ltd Jiangsu Forged Pipe Fittings Co., Ltd 7.42 Jinan Mech Piping Technology Co., Ltd Jinan Mech Piping Technology Co., Ltd 7.42 Jining Dingguan Precision Parts Manufacturing Co., Ltd Jining Dingguan Precision Parts Manufacturing Co., Ltd 7.42 Lianfa Stainless Steel Pipes & Valves (Qingyun) Co., Ltd Lianfa Stainless Steel Pipes & Valves (Qingyun) Co., Ltd 7.42 Ningbo Long Teng Metal Manufacturing Co., Ltd Ningbo Long Teng Metal Manufacturing Co., Ltd 7.42 Ningbo Save Technology Co., Ltd Ningbo Save Technology Co., Ltd 7.42 Q.C. Witness International Co., Ltd Ningbo HongTe Industrial Co., Ltd 7.42 Q.C. Witness International Co., Ltd Cixi Baicheng Hardware Tools, Ltd 7.42 Qingdao Bestflow Industrial Co., Ltd Yancheng Boyue Tube Co., Ltd 7.42 Xin Yi International Trade Co., Limited Yancheng Jiuwei Pipe Fittings Co., Ltd 7.42 Xin Yi International Trade Co., Limited Yancheng Manda Pipe Industry Co., Ltd 7.42 Xin Yi International Trade Co., Limited Yancheng Haohui Pipe Fittings Co., Ltd 7.42 Xin Yi International Trade Co., Limited Jiangsu Haida Pipe Fittings Group Co., Ltd 7.42 Xin Yi International Trade Co., Limited Yingkou Guangming Pipeline Industry Co., Ltd 7.42 Xin Yi International Trade Co., Limited Shanghai Lon Au Stainless Steel Materials Co., Ltd 7.42 Yingkou Guangming Pipeline Industry Co., Ltd Yingkou Guangming Pipeline Industry Co., Ltd 7.42 Yingkou Guangming Pipeline Industry Co., Ltd Yancheng Jiuwei Pipe Fittings Co., Ltd 7.42 Yingkou Guangming Pipeline Industry Co., Ltd Yancheng Manda Pipe Industry Co., Ltd 7.42 Yingkou Guangming Pipeline Industry Co., Ltd Yancheng Haohui Pipe Fittings Co., Ltd 7.42 Yingkou Guangming Pipeline Industry Co., Ltd Jiangsu Haida Pipe Fittings Group Co., Ltd 7.42 Yuyao Wanlei Pipe Fitting Manufacturing Co., Ltd Yuyao Wanlei Pipe Fitting Manufacturing Co., Ltd 7.42 China-Wide Entity 12 142.72
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, as discussed below.

    12 The China-wide entity includes: (1) Beijing Better Products International Ltd.; (2) Dalian Newshow Pipeline Industry Co.; (3) G&T Industry Holding Ltd.; (4) Shanxi Baolongda Forging Company Ltd.; (5) Shaanxi Fenry Flanges and Fittings Co., Ltd.; (6) Shenzhen Front Valve Co., Ltd.; (7) Qingdao Eathu Casting and Forging Co., Ltd.; (8) Gaoyou Huaxing Petroleum Pipe Manufacture Co., Ltd.; and (9) the single entity comprising Jiangsu Haida Pipe Fittings Group Company Ltd., its affiliated producer Haida Pipe Co., Ltd., and its affiliated reseller Yancheng L&W International Co., Ltd.

    Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin as follows: (1) For the producer/exporter combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of Chinese producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the China-wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the Chinese producer/exporter combination (or the China-wide entity) that supplied that third-country exporter.

    To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion CVD proceeding when CVD provisional measures are in effect. Accordingly, where Commerce makes a preliminary affirmative determination for domestic subsidy pass-through or export subsidies, Commerce offsets the calculated estimated weighted-average dumping margin by the appropriate rate(s). In this case, we have not made a preliminary affirmative determination for domestic subsidy pass-through or export subsidies. Therefore, we are not adjusting the estimated weighted-average dumping margin for these subsidies.

    These suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    Commerce intends to disclose to interested parties the calculations performed in conjunction with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.

    Public Comment

    Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, or on a date established by the Secretary, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.13

    13See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the Federal Register. Rebuttal briefs regarding scope issues, limited to those issues which are raised in the scope case briefs, may be submitted no later than five days after the deadline date for scope case briefs. All scope case and rebuttal briefs must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs on any issues raised in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that a request by exporters for postponement of the final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On March 18, 2018, pursuant to 19 CFR 351.210(e), Both-Well (Taizhou) Steel Fittings Co., Ltd. requested that, in the event of an affirmative preliminary determination, Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.14 On April 18, the petitioners 15 requested, in the event of a negative preliminary determination in this investigation, that Commerce postpone the final determination up to 135 days after the date of the publication of the preliminary determination.16 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    14See Letter from Both-Well, “Forged Steel Fittings from China: Antidumping,” dated March 18, 2018.

    15 Bonney Forge Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) (collectively, the petitioners).

    16See Letters from the petitioners, “Request to Extend Final Determination,” dated April 18, 2018; and “Request to Extend Final Determination, Acknowledgement of Gap in CVD Provisional Measures,” dated April 19, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, we are notifying the U.S. International Trade Commission (ITC) of our affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: May 7, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigation

    The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.

    While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.

    The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.

    All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI, e.g., 2,000 or 2M; 3,000 or 3M; 6,000 or 6M; 9,000 or 9M), wall thickness, and whether or not heat treated.

    Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.

    Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:

    • American Petroleum Institute (API) API 5CT, API 5L, or API 11B • Society of Automotive Engineering (SAE) SAE J476, SAE J514, SAE J516, SAE J517, SAE J518, SAE J1026, SAE J1231, SAE J1453, SAE J1926, J2044 or SAE AS 35411 • Underwriter's Laboratories (UL) certified electrical conduit fittings • ASTM A153, A536, A576, or A865 • Casing Conductor Connectors 16-42 inches in diameter made to proprietary specifications • Military Specification (MIL) MIL-C-4109F and MIL-F-3541 • International Organization for Standardization (ISO) ISO6150-B

    To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure, e.g., “API 5CT” mark and/or a mill certification report.

    Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.

    Appendix II—List of Topics Discussed in the Preliminary Decision Memorandum

    I. Summary II. Background III. Period of Investigation IV. Scope Comments V. Scope of the Investigation VI. Selection of Respondents VII. Discussion of the Methodology A. Non-Market Economy Country B. Surrogate Country and Surrogate Value Comments C. Separate Rates D. Combination Rates E. Affiliation and Single Entity F. China-Wide Entity G. Application of Facts Available and Adverse Inferences H. Date of Sale I. Fair Value Comparisons J. Export Price K. Value-Added Tax (VAT) L. Normal Value M. Factor Valuation Methodology VIII. Currency Conversion IX. Adjustment Under Section 777(A)(f) of the Act X. Adjustments to Cash Deposit Rates for Export Subsidies XI. Verification XII. Conclusion [FR Doc. 2018-10547 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-896] Magnesium Metal From the People's Republic of China: Final Determination of No Shipments; Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) continues to find that Tianjin Magnesium International, Co., Ltd. (TMI) and Tianjin Magnesium Metal Co., Ltd. (TMM) had no shipments of subject merchandise covered by the antidumping duty order on magnesium metal from the People's Republic of China (China) for the period of review (POR) April 1, 2016, through March 31, 2017.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    James Terpstra or Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3965 or (202) 482-5848, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On January 8, 2018, Commerce published the Preliminary Results. 1 We invited interested parties to comment on the Preliminary Results, however, no interested party submitted comments. Accordingly, we made no changes to the Preliminary Results.

    1See Magnesium Metal from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017, 83 FR 789 (January 8, 2018) (Preliminary Results).

    Scope of the Order

    The product covered by this antidumping duty order is magnesium metal from China, which includes primary and secondary alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.

    The subject merchandise includes the following alloy magnesium metal products made from primary and/or secondary magnesium including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes; magnesium ground, chipped, crushed, or machined into rasping, granules, turnings, chips, powder, briquettes, and other shapes; and products that contain 50 percent or greater, but less than 99.8 percent, magnesium, by weight, and that have been entered into the United States as conforming to an “ASTM Specification for Magnesium Alloy” 2 and are thus outside the scope of the existing antidumping orders on magnesium from China (generally referred to as “alloy” magnesium).

    2 The meaning of this term is the same as that used by the American Society for Testing and Materials in its Annual Book for ASTM Standards: Volume 01.02 Aluminum and Magnesium Alloys.

    The scope of this order excludes: (1) All forms of pure magnesium, including chemical combinations of magnesium and other material(s) in which the pure magnesium content is 50 percent or greater, but less than 99.8 percent, by weight, that do not conform to an “ASTM Specification for Magnesium Alloy” 3 ; (2) magnesium that is in liquid or molten form; and (3) mixtures containing 90 percent or less magnesium in granular or powder form by weight and one or more of certain non-magnesium granular materials to make magnesium-based reagent mixtures, including lime, calcium metal, calcium silicon, calcium carbide, calcium carbonate, carbon, slag coagulants, fluorspar, nephaline syenite, feldspar, alumina (Al203), calcium aluminate, soda ash, hydrocarbons, graphite, coke, silicon, rare earth metals/mischmetal, cryolite, silica/fly ash, magnesium oxide, periclase, ferroalloys, dolomite lime, and colemanite.4

    3 The material is already covered by existing antidumping orders. See Notice of Antidumping Duty Orders: Pure Magnesium from the People's Republic of China, the Russian Federation and Ukraine; Notice of Amended Final Determination of Sales at Less Than Fair Value: Antidumping Duty Investigation of Pure Magnesium from the Russian Federation, 60 FR 25691 (May 12, 1995); and Antidumping Duty Order: Pure Magnesium in Granular Form from the People's Republic of China, 66 FR 57936 (November 19, 2001).

    4 This third exclusion for magnesium-based reagent mixtures is based on the exclusion for reagent mixtures in the 2000-2001 investigations of magnesium from China, Israel, and Russia. See Final Determination of Sales at Less Than Fair Value: Pure Magnesium in Granular Form from the People's Republic of China, 66 FR 49345 (September 27, 2001); Final Determination of Sales at Less Than Fair Value: Pure Magnesium From Israel, 66 FR 49349 (September 27, 2001); Final Determination of Sales at Not Less Than Fair Value: Pure Magnesium from the Russian Federation, 66 FR 49347 (September 27, 2001). These mixtures are not magnesium alloys, because they are not combined in liquid form and cast into the same ingot.

    The merchandise subject to this order is classifiable under items 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS items are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Final Determination of No Shipments

    In the Preliminary Results, Commerce determined that TMI and TMM had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the POR.5 As we have not received any information to contradict our preliminary finding, we determine that TMI and TMM did not have any shipments of subject merchandise during the POR and intend to issue appropriate instructions that are consistent with our “automatic assessment” clarification, for these final results.6

    5See Preliminary Results, 83 FR at 790.

    6See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011) (Assessment Notice); see also “Assessment Rates” section below.

    Assessment Rates

    Commerce determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b). Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.

    Additionally, consistent with the Commerce's refinement to its assessment practice in non-market economy cases, for TMI and TMM, exporters under review, which we determined had no shipments of the subject merchandise during the POR, any suspended entries of subject merchandise from these companies (i.e., made under TMI's case number at TMI's rate or made under TMM's name) will be liquidated at the China-wide rate.7

    7 For a full discussion of this practice, see Assessment Notice.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of these final results of administrative review for shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed Chinese and non-Chinese exporters that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (2) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, including TMM, the cash deposit rate will be the China-wide rate of 141.49 percent; 8 and (3) for all non-Chinese exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Chinese exporter(s) that supplied that non-Chinese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    8See Notice of Antidumping Duty Order: Magnesium Metal from the People's Republic of China, 70 FR 19928 (April 15, 2005).

    Notification to Importers

    This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    We are issuing and publishing these final results and this notice in accordance with sections 751(a)(1) and 777(i) of the Act.

    Dated: May 11, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-10562 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-552-824] Countervailing Duty Investigation of Laminated Woven Sacks From the Socialist Republic of Vietnam: Postponement of Preliminary Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Martin at (202) 482-3936 or Ariela Garvett at (202) 482-3609, AD/CVD Operations, Enforcement and Compliance, Office IV, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    On March 27, 2018, the Department of Commerce (Commerce) initiated a countervailing duty (CVD) investigation of imports of laminated woven sacks (LWS) from the Socialist Republic of Vietnam.1 Currently, the preliminary determination is due no later than May 31, 2018.

    1See Laminated Woven Sacks From the Socialist Republic of Vietnam: Initiation of Countervailing Duty Investigation, 83 FR 14253 (April 3, 2018) (Initiation Notice).

    Postponement of Preliminary Determination

    Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a CVD investigation within 65 days after the date on which Commerce initiated the investigation. However, section 703(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 130 days after the date on which Commerce initiated the investigation if, under part (A), the petitioners 2 make a timely request for a postponement; or under part (B), Commerce concludes that the parties concerned are cooperating, and determines that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioners must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.

    2 The petitioners are the Laminated Woven Sacks Fair Trade Coalition and its individual members Polytex Fibers Corporation and ProAmpac Holdings Inc.

    On May 4, 2018, the petitioners submitted a timely request that Commerce postpone the preliminary CVD determination.3 The petitioners state that they request postponement of the preliminary determination because the current deadline does not provide adequate time for Commerce to issue questionnaires, receive responses, or to issue and receive responses to supplement questionnaires prior to Commerce's currently scheduled preliminary determination date. According to the petitioners, postponement of the preliminary determination deadline by the maximum extension of 65 additional days in this case would allow sufficient time for Commerce to develop the record in this investigation.

    3 Letter from the petitioners, “Re: Laminated Woven Sacks from Vietnam: Request to Extend the Deadline for Preliminary Determination,” dated May 4, 2018.

    In accordance with 19 CFR 351.205(e), the petitioners have stated the reasons for requesting a postponement of the preliminary determination, and Commerce finds no compelling reason to deny the request. Therefore, in accordance with section 703(c)(1)(A) of the Act, Commerce is postponing the deadline for the preliminary determination to no later than 130 days after the date on which the investigation was initiated, i.e., August 6, 2018.4 Pursuant to section 705(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination of this investigation will continue to be 75 days after the date of the preliminary determination.

    4 Postponing the preliminary determination to 130 days after initiation would place the deadline on Saturday, August 4, 2018. Commerce's practice dictates that where a deadline falls on a weekend or federal holiday, the appropriate deadline is the next business day. See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

    This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: May 10, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-10544 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-475-839] Forged Steel Fittings From Italy: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from Italy are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2016, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Denisa Ursu or Michael Bowen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2285 or (202) 482-0768, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as Amended (the Act). Commerce initiated this investigation on October 25, 2017.1 On February 2, 2018, Commerce postponed the preliminary determination of this investigation.2

    1See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 50614 (November 1, 2017) (Initiation Notice).

    2See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations, 83 FR 4899 (February 2, 2018).

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the preliminary determination of this investigation is now May 7, 2018.3

    3See Memorandum for the Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum to the File, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Forged Steel Fittings from Italy,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The products covered by this investigation are forged steel fittings from Italy. For a complete description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I.

    Scope Comments

    In accordance with the Preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. On March 7, 2018, Commerce issued a Preliminary Scope Decision Memorandum making certain preliminary revisions to the scope based on the comments received.7 Commerce received additional scope comments following the issuance of the Preliminary Scope Decision Memorandum, and based on those comments, made certain additional preliminary revisions to the scope. For a summary of the additional comments received, and Commerce's preliminary analysis and decision with respect to them, see the Second Preliminary Scope Decision Memorandum.8 See also the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997) (Preamble).

    6See Initiation Notice, 82 FR at 50615.

    7See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated March 7, 2018 (Preliminary Scope Decision Memorandum)

    8See Memorandum, “Second Preliminary Scope Decision Memorandum,” dated concurrently with this notice (Second Preliminary Scope Decision Memorandum).

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Pursuant to sections 776(a) and (b) of the Act and 19 CFR 351.308, Commerce preliminarily relied upon facts otherwise available with an adverse inference (adverse facts available or AFA) for the two mandatory respondents, M.E.G.A. S.p.A (MEGA) and I.M.L. Industria Meccanica Ligure S.p.A. (IML), which failed to cooperate to the best of their ability in their responses to Commerce's requests for information. See Preliminary Decision Memorandum for a complete explanation of the methodology and analysis underlying our preliminary application of adverse facts available. As AFA, Commerce is preliminarily assigning to MEGA and IML the highest margin alleged in the petition, 80.20 percent.9

    9See Letter to the Secretary of Commerce from the Petitioners, “Forged Steel Fittings from People's Republic of China, Italy, and Taiwan—Petitions for the Imposition of Antidumping and Countervailing Duties” (October 5, 2017) (the Petition) at Volume III. See also, AD Investigation Initiation Checklist: Forged Steel Fittings from Italy (October 25, 2017).

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated weighted-average dumping margin for all other exporters and producers not individually examined. Section 735(c)(5)(A) of the Act states that, in calculating this rate, it shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually examined, excluding rates that are zero, de minimis, or determined entirely under section 776 of the Act.

    In cases where no weighted-average dumping margins other than zero, de minimis, or those determined entirely under section 776 of the Act have been established for individually examined entities, in accordance with section 735(c)(5)(B) of the Act, Commerce may use “any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.” Our recent practice in these circumstances is to average the dumping margins alleged in the Petition 10 and apply the result to “all-other” entities not individually examined.11 In this investigation, Commerce has preliminarily determined the estimated weighted-average dumping margin for MEGA and IML entirely under section 776 of the Act. Therefore, as the “all-others”' rate, we are assigning the simple average of the dumping margins alleged in the Petition, which is 49.43 percent. For a full description of the methodology underlying Commerce's analysis, see the Preliminary Decision Memorandum.

    10Id.

    11See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value: Sodium Nitrite from the Federal Republic of Germany, 73 FR 21909, 21912 (April 23, 2008), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: Sodium Nitrite from the Federal Republic of Germany, 73 FR 38986, 38987 (July 8, 2008), and accompanying Issues and Decision Memorandum at Comment 2; see also Notice of Final Determination of Sales at Less Than Fair Value: Raw Flexible Magnets from Taiwan, 73 FR 39673, 39674 (July 10, 2008); Steel Threaded Rod from Thailand: Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances, 78 FR 79670, 79671 (December 31, 2013), unchanged in Steel Threaded Rod from Thailand: Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances, 79 FR 14476, 14477 (March 14, 2014).

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter or producer Estimated weighted-average dumping margin
  • (percent)
  • M.E.G.A. S.p.A 80.20 I.M.L. Industria Meccanica Ligure S.p.A 80.20 All-Others 49.43
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise, as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register as discussed below.

    Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the Federal Register, in accordance with 19 CFR 351.224(b). However, because Commerce preliminarily applied total AFA to the individually examined companies (MEGA and IML) in this investigation in accordance with section 776 of the Act, and the applied AFA rate is based solely on the Petition, there are no calculations to disclose.

    Verification

    As explained in the Preliminary Decision Memorandum, we will afford MEGA the opportunity to remedy a deficiency in its reported cost reconciliation after issuing this preliminary determination. Should we find MEGA's response satisfactory, then, as provided in section 782(i)(1) of the Act, we intend to verify this respondent's information for purposes of relying upon it in making our final determination. IML did not provide sections B, C, D, or supplemental section A questionnaire responses and, therefore, Commerce will not conduct verification of IML. As further explained in the Preliminary Decision Memorandum, the companies, Officine Nicola Galperti & Figlio (Galperti) and Pegasus S.R.L. (Pegasus), contend that they are not producers or exporters of forged steel fittings from Italy.12 As provided in section 782(i)(1) of the Act, we intend to verify Galperti's and Pegasus's claims that they did not produce or sell the subject merchandise during the POI.

    12See Preliminary Decision Memorandum at section IV, Treatment of Galperti and Pegasus.

    Public Comment

    Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, or on a date established by Commerce, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.13

    13See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the Federal Register. Rebuttal briefs regarding scope issues, limited to those issues which are raised in the scope case briefs, may be submitted no later than five days after the deadline date for scope case briefs.14 All scope case and rebuttal briefs must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs on any issues raised in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    14See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On April 18, 2018, pursuant to 19 CFR 351.210(e), MEGA requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.15 On April 18, 2018, Bonney Forge Corporation and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) (the petitioners) requested, in the event of a negative preliminary determination in this investigation, that Commerce postpone the final determination up to 135 days after the date of the publication of the preliminary determination.16 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    15See Letter from MEGA, “Forged Steel Fittings from Italy: Request for Postponement of Final Determination,” dated March 28, 2018. This letter was filed with Commerce on April 18, 2018.

    16See Letter from Petitioners, “Forged Steel Fittings from Italy: Request to Extend Final Determination,” dated April 18, 2018.

    U.S. International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of its affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: May 7, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.

    While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.

    The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.

    All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI, e.g., 2,000 or 2M; 3,000 or 3M; 6,000 or 6M; 9,000 or 9M), wall thickness, and whether or not heat treated.

    Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.

    Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:

    • American Petroleum Institute (API) API 5CT, API 5L, or API 11B • Society of Automotive Engineering (SAE) SAE J476, SAE J514, SAE J516, SAE J517, SAE J518, SAE J1026, SAE J1231, SAE J1453, SAE J1926, J2044 or SAE AS 35411 • Underwriter's Laboratories (UL) certified electrical conduit fittings • ASTM A153, A536, A576, or A865 • Casing Conductor Connectors 16-42 inches in diameter made to proprietary specifications • Military Specification (MIL) MIL-C-4109F and MIL-F-3541 • International Organization for Standardization (ISO) ISO6150-B

    To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure, e.g., “API 5CT” mark and/or a mill certification report.

    Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Treatment of Galperti and Pegasus V. Scope Comments VI. Scope of the Investigation VII. Application of Facts Available and Use of Adverse Inference A. Application of Facts Available B. Application of Facts Available with an Adverse Inference C. Preliminary Estimated Weighted-Average Dumping Margin Based on Adverse Facts Available D. Corroboration of Secondary Information VIII. All-Others Rate IX. Conclusion
    [FR Doc. 2018-10548 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-583-863] Forged Steel Fittings From Taiwan: Affirmative Preliminary Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from Taiwan are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2016, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Robert Palmer (202) 482-9068 or Suzanne Lam at (202) 482-0783, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce initiated this investigation on October 25, 2017.1 On February 2, 2018, Commerce postponed the preliminary determination of this investigation.2 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the preliminary determination of this investigation is now May 7, 2018.3

    1See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 50614 (November 1, 2017) (Initiation Notice).

    2See Forged Steel Fittings from the People's Republic of China, Italy, and Taiwan: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations, 83 FR 4899 (February 2, 2018).

    3See Memorandum to the file from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum to the file, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair- Value Investigation of Forged Steel Fittings from Taiwan,” dated concurrently with this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The products covered by this investigation are forged steel fittings from Taiwan. For a complete description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I.

    Scope Comments

    In accordance with the Preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. On March 7, 2018, Commerce issued a Preliminary Scope Decision Memorandum making certain preliminary revisions to the scope based on the comments received.7 Commerce received additional scope comments following the issuance of the Preliminary Scope Decision Memorandum, and based on those comments, made certain additional preliminary revisions to the scope. For a summary of the additional comments received, and Commerce's preliminary analysis and decision with respect to them, see the Second Preliminary Scope Decision Memorandum.8 See also the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997) (Preamble).

    6See Initiation Notice, 82 FR at 50615.

    7See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated March 7, 2018 (Preliminary Scope Decision Memorandum).

    8See Memorandum, “Second Preliminary Scope Decision Memorandum,” dated concurrently with this notice (Second Preliminary Scope Decision Memorandum).

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). Pursuant to sections 776(a) and (b) of the Act and 19 CFR 351.308, Commerce preliminarily relied upon facts otherwise available with an adverse inference (adverse facts available or AFA) to assign an estimated weighted-average dumping margin to the two mandatory respondents in Taiwan, Both Well Steel Fittings Co., Ltd. (Both Well) and Luchu Shin Yee Works Co. Ltd. (Luchu), because these respondents did not respond to Commerce's antidumping duty questionnaire and, therefore, failed to cooperate to the best of their ability in the investigation. See Preliminary Decision Memorandum for a complete explanation of the methodology and analysis underlying our preliminary application of adverse facts available. As AFA, Commerce is preliminarily assigning to Both Well and Luchu the highest and only margin alleged in the petition, 116.17 percent.9 The third mandatory respondent, Kopex Industrial Co. (Kopex), notified Commerce that it is not a producer or exporter of subject merchandise.10

    9See Letter to the Secretary of Commerce from the Petitioners, “Forged Steel Fittings from People's Republic of China, Italy, and Taiwan—Petitions for the Imposition of Antidumping and Countervailing Duties” (October 5, 2017) (the Petition) at Volume III. See also, AD Investigation Initiation Checklist: Forged Steel Fittings from Taiwan (October 25, 2017) (in which the Petition margin was recalculated for purposes of initiation).

    10See Preliminary Decision Memorandum at section IV, Treatment of Kopex.

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act.

    In cases where no weighted-average dumping margins other than zero, de minimis, or those determined entirely under section 776 of the Act have been established for individually examined entities, in accordance with section 735(c)(5)(B) of the Act, Commerce may use “any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.” Our recent practice in these circumstances is to average the dumping margins alleged in the Petition 11 and apply the result to “all-other” entities not individually examined.12 In this investigation, Commerce has preliminarily determined the estimated weighted-average dumping margin for Both Well and Luchu entirely under section 776 of the Act. Therefore, as the “all-others” rate, we are assigning the sole margin in the Petition, which is 116.17 percent. For a full description of the methodology underlying Commerce's analysis, see the Preliminary Decision Memorandum.

    11See the Petition.

    12See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value: Sodium Nitrite from the Federal Republic of Germany, 73 FR 21909, 21912 (April 23, 2008), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: Sodium Nitrite from the Federal Republic of Germany, 73 FR 38986, 38987 (July 8, 2008), and accompanying Issues and Decision Memorandum at Comment 2; see also Notice of Final Determination of Sales at Less Than Fair Value: Raw Flexible Magnets from Taiwan, 73 FR 39673, 39674 (July 10, 2008); Steel Threaded Rod from Thailand: Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances, 78 FR 79670, 79671 (December 31, 2013), unchanged in Steel Threaded Rod from Thailand: Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances, 79 FR 14476, 14477 (March 14, 2014).

    Preliminary Determination

    Commerce preliminarily determines that the following weighted-average dumping margins exist:

    Exporter or producer Estimated weighted-average dumping margin
  • (percent)
  • Both Well Steel Fittings Co., Ltd 116.17 Luchu Shin Yee Works Co. Ltd 116.17 All-Others 116.17
    Suspension of Liquidation

    In accordance with section 773(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, as discussed below.

    Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit 13 for both the individually examined respondents and all other producers and exporters equal to the 116.17 percent dumping margin preliminarily determined above. These suspension of liquidation instructions will remain in effect until further notice.

    13See Modification of Regulations Regarding the Practice of Accepting Bonds During the Provisional Measures Period in Antidumping and Countervailing Duty Investigations, 76 FR 61042, dated October 3, 2011.

    Disclosure

    Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the Federal Register, in accordance with 19 CFR 351.224(b). However, because Commerce preliminarily applied an AFA rate to the individually examined companies (Both Well and Luchu) in this investigation, in accordance with section 776 of the Act, and the applied AFA rate is based solely on the Petition, there are no calculations to disclose.

    Verification

    Because the mandatory respondents in this investigation, Both Well and Luchu, did not provide the information requested and Commerce preliminarily determines these respondents to have been uncooperative, Commerce will not conduct verifications of these two companies. Kopex contends that it is not a producer or exporter of forged steel fittings from Taiwan. As provided in section 782(i)(1) of the Act, we intend to verify Kopex's claim that it did not produce or sell the subject merchandise during the POI.

    Public Comment

    Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the verification report is issued in this investigation, or on a date established by the Secretary, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.14

    14See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the Federal Register. Rebuttal briefs regarding scope issues, limited to those issues which are raised in the scope case briefs, may be submitted no later than five days after the deadline date for scope case briefs. All scope case and rebuttal briefs must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs on any issues raised in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    U.S. International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of our affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: May 7, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.

    While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.

    The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.

    All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI, e.g., 2,000 or 2M; 3,000 or 3M; 6,000 or 6M; 9,000 or 9M), wall thickness, and whether or not heat treated.

    Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.

    Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:

    • American Petroleum Institute (API) API 5CT, API 5L, or API 11B • Society of Automotive Engineering (SAE) SAE J476, SAE J514, SAE J516, SAE J517, SAE J518, SAE J1026, SAE J1231, SAE J1453, SAE J1926, J2044 or SAE AS 35411 • Underwriter's Laboratories (UL) certified electrical conduit fittings • ASTM A153, A536, A576, or A865 • Casing Conductor Connectors 16-42 inches in diameter made to proprietary specifications • Military Specification (MIL) MIL-C-4109F and MIL-F-3541 • International Organization for Standardization (ISO) ISO6150-B

    To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure, e.g., “API 5CT” mark and/or a mill certification report.

    Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum: I. Summary II. Background III. Period of Investigation IV. Treatment of Kopex V. Scope Comments VI. Scope of the Investigation VII. Application of Facts Available and Use of Adverse Inference VIII. All-Others Rate IX. Conclusion
    [FR Doc. 2018-10553 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-831] Fresh Garlic From the People's Republic of China: Preliminary Rescission of the New Shipper Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is conducting a new shipper review of Qingdao Doo Won Foods Co., Ltd. (Doo Won) regarding the antidumping duty order on fresh garlic from the People's Republic of China (China). The period of review (POR) is November 1, 2016, through April 30, 2017. Because we have concluded preliminarily that Doo Won is not the producer of the fresh garlic it exported to the United States, we are preliminarily rescinding this review with respect to Doo Won. Interested parties are invited to comment on these preliminary results.

    DATES:

    Applicable Date: May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kathryn Wallace, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6251.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 10, 2017, Commerce published a notice of initiation of a new shipper review of fresh garlic from the China for the period November 1, 2016, through April 30, 2017.1 On December 4, 2017, we extended the deadline for the preliminary results to April 30, 2018.2 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.3 The revised deadline for the preliminary results is May 2, 2018.

    1 See Fresh Garlic from the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2016-2017, 82 FR 31756 (July 10, 2017).

    2See Memorandum “Fresh Garlic from the People's Republic of China—Semiannual Antidumping Duty New Shipper Review (2016-2017): Extension of Deadline for the Preliminary Results of the Review,” dated December 4, 2017. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day.

    3See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum),” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    Scope of the Order

    The merchandise covered by this order is all grades of garlic, whether whole or separated into constituent cloves.4 The subject merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 0703.20.0000, 0703.20.0005, 0703.20.0010, 0703.20.0015, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, 0711.90.6500, 2005.90.9500, 2005.90.9700, and 2005.99.9700. A full description of the scope of the order is contained in the Preliminary Decision Memorandum. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description is dispositive.

    4See Memorandum, “Decision Memorandum for the Preliminary Rescission of the Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China: Qingdao Doo Won Foods Co., Ltd.,” dated concurrently with and hereby adopted by this notice (Preliminary Decision Memorandum), for a complete description of the Scope of the Order.

    Methodology

    Commerce is conducting this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in Commerce's Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Preliminary Rescission of Doo Won NSR

    For the reasons detailed in the Preliminary Decision Memorandum, we preliminarily find that Doo Won's sale under review is bona fide. However, we also preliminarily find that Doo Won is not the producer of the garlic subject to this review and, therefore, does not provide a reasonable or reliable basis for calculating a dumping margin. As a result, we are preliminarily rescinding the new shipper review of Doo Won.

    Disclosure and Public Comment

    Commerce intends to disclose the analysis performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments by no later than 30 days after the date of publication of these preliminary results of review.5 Rebuttals, limited to issues raised in the written comments, may be filed by no later than five days after the written comments are filed.6

    5See 19 CFR 351.309(c).

    6See 19 CFR 351.309(d).

    Any interested party may request a hearing within 30 days of publication of this notice.7 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.8

    7See 19 CFR 351.310(c).

    8See 19 CFR 351.310(d).

    Commerce intends to issue the final results of this new shipper review, which will include the results of its analysis of issues raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.

    Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 351.212(b), Commerce will determine, and the U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If we proceed to a final rescission of the new shipper review, Doo Won's entries will be assessed at the rate entered.9 If we do not proceed to a final rescission of the new shipper review, pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific assessment rates. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis. 10

    9See 19 CFR 351.212(c).

    10See 19 CFR 351.106(c)(2).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results or final rescission of this NSR for entries of subject merchandise by Doo Won. If Commerce proceeds to a final rescission of the new shipper review, the cash deposit rate will continue to be the China-wide rate. If we issue final results of the new shipper review for Doo Won, we will instruct CBP to collect cash deposits, effective upon the publication of the final results, at the rates established therein.

    Verification

    Consistent with 19 CFR 351.307(b)(1)(iv), we intend to verify the information relied upon in making its decision.

    Notification to Interested Parties

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 771(i)(1) of the Act, and 19 CFR 351.221(b)(4).

    Dated: May 2, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Bona Fides Analysis V. Preliminary Finding That Doo Won Is Not the Producer VI. Verification VII. Recommendation
    [FR Doc. 2018-10557 Filed 5-16-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-982] Utility Scale Wind Towers From the People's Republic of