Background Section 4007: Student Eligibility Disqualifications Background

Section 6(e) of the Food and Nutrition Act of 2008 (the Act) (7 U.S.C. 2015(e)) generally prohibits students enrolled at least half-time in an institute of higher education from receiving SNAP. There are several exceptions to the general prohibition, and section 4007 of the 2014 Farm Bill amended the exception at section 6(e)(3)(B) of the Act (7 U.S.C. 2015(e)(3)(B)) for students who are enrolled at least half-time at an institution of higher education through a SNAP Employment and Training (E&T) program. Under the new requirements, these students can be eligible to participate in SNAP only if the E&T program is part of a program of career and technical education (as defined by the Carl D. Perkins Career and Technical Education Act of 2006 (Perkins Act)) that may not be completed in more than 4 years at an institute of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002)); or is limited to courses for remedial education, basic adult education, literacy, or English as a second language. This amendment does not affect the other exceptions in section 6(e) of the Act. The U.S. Department of Agriculture (the Department) proposed modifications in 7 CFR 273.5(b)(11)(ii) to incorporate these changes in section 4007.

The proposed rule also revised the description of acceptable E&T education components at 7 CFR 273.7(e)(1)(vi) to include courses or programs of study that are part of a program of career and technical education as defined in section 3 of the Perkins Act. The substance of the other criteria at section 273.7(e)(1)(vi) remain unchanged, with the exception of a technical correction. The proposed rule inadvertently removed language clarifying that educational components must directly enhance the employability of the participants and a direct link between education and job-readiness must be established for a component to be approved. The final rule restores this language. Individuals participating in remedial courses, basic adult education, or English as a second language continue to qualify for the student exemption. These courses may be offered concurrently or contextually with courses or programs of study that are part of a program of career and technical education.

Section 3 of the Perkins Act (20 U.S.C. 2302) offers a general definition of the term “career and technical education” and the proposed rule noted that the Department believes State agencies are in the best position to determine what courses or programs of study meet the definition. A program does not have to be receiving Perkins funding for a State agency to consider it eligible; it would just need to meet the general definition, as determined by the State agency. Commenters were generally supportive of granting States this discretion in identifying which programs meet the general definition.

Some commenters asked that the final rule be clear that all State agencies must at least adopt the basic definition of career and technical education, and then have State-specific criteria. The Department believes the proposed language at section 273.5(b)(11)(ii) is sufficient to ensure that States use Perkins Act criteria to identify which programs meet the general definition and is adopting the provisions as proposed.

Section 4007 provides that eligible courses or programs of study may be completed in not more than four years. The proposed rule explained that students participating in qualifying courses or programs of study that are designed to be completed in up to four years, but may actually take longer than four years to complete, satisfy this requirement. Commenters were unanimously supportive of this explanation and the Department is adopting the provision as proposed.

Section 4008 of the 2014 Farm Bill added a new section 6(r) to the Act (7 U.S.C. 2015(r)) prohibiting any individual from receiving SNAP benefits if the individual is convicted of certain crimes and not in compliance with the terms of the sentence, is a fleeing felon, or is a parole or probation violator (as described in section 6(k) of the Act) from receiving SNAP benefits. The certain crimes in section 4008 are: (i) Aggravated sexual abuse under section 2241 of title 18, United States Code; (ii) murder under section 1111 of title 18, United States Code; (iii) sexual exploitation and other abuse of children under chapter 110 of title 18, United States Code; (iv) a Federal or State offense involving sexual assault, as defined in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)); and (v) an offense under State law determined by the Attorney General to be substantially similar to an offense in (i) through (iii) above. The Department proposed to codify this change in a new section at 7 CFR 273.11(s).

Section 4008 requires an individual applying for SNAP benefits to attest to whether the applicant or any other member of the household was convicted of any of the enumerated offenses. In addition, although those disqualified from receiving SNAP benefits under this provision are not eligible members of a SNAP household, the statute requires that their income and resources be included in the eligibility determinations for the other eligible household members.

As provided for in section 4008(c), the amendments do not apply to convictions for conduct occurring on or before February 7, 2014, the date of enactment of the 2014 Farm Bill.

The proposed rule added a new section at 7 CFR 273.11(s) to include the section 4008 provisions. Before passage of the 2014 Farm Bill, section 6(k) of the Act and section 273.11(n) already prohibited certain fleeing felons and probation and parole violators from receiving SNAP benefits. Standards for determining whether someone is a fleeing felon or probation or parole violator are addressed in section 273.11(n), finalized in the “Clarification of Eligibility of Fleeing Felons Final Rule,” published on September 10, 2015 (80 FR 54410). Standards for fleeing felons under section 273.11(n) should apply to the new eligibility disqualifications for certain convicted felons.

Commenters were supportive of the Department's interpretation of section 4008 in section 273.11(s). Some commenters, including State agencies, requested that the Department provide additional information—through either regulations or guidance—on what crimes under State law may be determined by the Attorney General to be substantially similar offenses. The Department agrees that additional guidance from the Department of Justice will be needed for State agencies to successfully implement section 273.11(s)(1)(v) of the final rule and has requested assistance on this matter from the Department of Justice. Information from the Department of Justice is still forthcoming; therefore, the Department is adopting this provision as proposed and will provide further guidance when available.

This final rule also makes a conforming change to include individuals convicted of certain felonies not compliant with the terms of their sentence as ineligible household members listed at 7 CFR 273.1. A reference to the newly recreated 7 CFR 273.11(s) has been added to 273.1(b)(7).

The proposed rule added section 273.2(o), which would require every individual applying for SNAP benefits to attest to whether the individual, or any member of the individual's household, has been convicted of a crime covered by this section and whether the household member is in compliance with the terms of their sentence. Section 4008 requires an attestation as to whether an individual has been convicted of one of the enumerated offenses. The Department has made the decision to also require an attestation as to whether the individual is in compliance with the sentence. This section provided basic standards to meet the attestation requirement to help ensure consistency across State agencies, while allowing some State discretion.

Proposed language at section 273.2(o) directed State agencies to update their application processes to include the attestation requirement. It allowed for this to be done in writing, verbally, or both, provided that the attestation is legally binding in the law of the State, and the method chosen is reasonable and consistently applied. The proposed rule also required State agencies to verify the felon status when an applicant affirmatively attested that the applicant or a member of the household had been convicted of a felony identified in section 4008 and was not in compliance with the sentence, or when attestations were questionable. In conducting verifications, the rule proposed that State agencies were also responsible for establishing reasonable, consistent standards, evaluating each case separately, and documenting the case file accordingly.

The Department received nine comments on the proposed implementation of section 4008. Though commenters were largely supportive or silent on how the disqualifications under this section were to be codified under 7 CFR 273.11(s), they shared some concerns for how the proposed language at section 273.2(o) addressed the application process and verifying attestations.

In updating the application process, commenters urged the Department to prohibit States from requiring individuals and/or household members to come into the office solely to complete an attestation. Commenters also recommended that State agencies be required to explain the attestation to clients to ensure the disqualification is understood prior to attestation—particularly that this disqualification only applies to those who are out of compliance with the terms of their sentence. The Department agrees that clear communication with households is vital to the application process. Similarly, completing the attestation requirement alone should not create a need for a household to visit their local office as this is not a prudent use of administrative resources. Therefore, the final rule is adopting additional language at section 273.2(o)(1) to ensure State agencies explain the attestation requirement to applicant households during the application process and to prevent State agencies from compelling applicants to come to the office solely to complete or discuss an attestation. As with all other program materials, this explanation must meet bilingual requirements at 272.4(b).

Comments received from State agencies as well as advocacy groups raised concerns with how to verify attestations. State agencies shared that verifying this new component of the application process may be challenging as there is no national database available that would allow States to conduct the verification. They also cited the associated staff resources needed to complete this requirement as evidence that meeting the requirement as proposed would be burdensome and overly difficult. Advocates agreed with the Department that the State agency, not the individual, is best suited to verify a household member attestation that there is a convicted felon in the household who is complying with the terms of their sentence. They also agreed that verifying this information should not delay application processing beyond the required processing timeframes. The Department maintains this is a responsibility of the State agency but recognizes the concerns that the proposed requirements for verifying attestations would be onerous.

Therefore, in response to these comments, the Department is revising the proposed language at section 273.2(o)(3) and adding new paragraph 273.2(o)(4). Under the revised section 273.2(o)(3), State agency verification of attestations shall be limited to attestations that are considered questionable. The State agency shall follow the standards established under section 273.2(f)(2) to determine whether an attestation is questionable. This language is also incorporated into section 273.2(b)(5)(i). The revised section 273.2(o)(3) also explains that, when verifying an attestation, the State agency must verify both that the individual has been convicted of one of these crimes and that the individual is out of compliance with the terms of the sentence. Section 273.2(o)(4) maintains that application processing shall not be delayed beyond required processing timeframes solely because the State agency has not obtained verification of an attestation. The State agency shall continue to process the application while awaiting verification. If the State agency is required to act on the case without being able to verify an attestation in order to meet the time standards in sections 273.2(g) or 273.2(i)(3), the State agency shall process the application without consideration of the individual's felony and compliance status.

Section 4009 of the 2014 Farm Bill provides that any household that receives substantial lottery or gambling winnings, as determined by the Secretary, must lose eligibility for benefits immediately upon receipt of winnings. It also requires that those households remain ineligible until they meet the allowable financial resources and income eligibility requirements of the Act. Section 4009 also requires the Secretary to set standards for each State agency to establish agreements, to the maximum extent practicable, with entities responsible for the regulation or sponsorship of gaming in the State (gaming entities) to identify SNAP individuals with substantial winnings. The proposed rule added provisions regarding the disqualification based on receipt of substantial winnings in section 273.11(r), agreements between State agencies and gaming entities in section 272.17, and requirements for households to report substantial winnings in section 273.12. The final rule adopts the proposed provisions with changes discussed below.

Section 4009 gives the Secretary authority to define what amount constitutes substantial lottery and gambling winnings, that when received by a household, results in an immediate disqualification for SNAP benefits. The proposed rule defined substantial winnings as $25,000 or more, before taxes or other amounts are withheld, won in a single game.

Of the 19 comments received regarding the lottery provision, only 10 commenters discussed the $25,000 proposed threshold, the definition of substantial based on gross versus net winnings, and the disqualification to the entire household. Three of the 10 commenters agreed with the definition of substantial winnings as defined in the proposed rule. Five commenters expressed concern about the definition of substantial winnings being based on gross, not net, winnings. These five commenters noted that if substantial taxes are withheld or intercepted for debt collection, this would result in the household receiving less than $25,000. One of the five comments addressing net winnings suggested that the Department change the threshold to $50,000 after taxes and other amounts withheld and requested that the Department distinguish between the definitions of lottery and gambling winnings. While the Department appreciates the comments on considering net versus gross winnings, it is impractical for a State agency to collect information on net winnings and would result in undue State burden. In addition, if an individual's net winnings cause the household to fall below the allowable SNAP income and resource requirements, the household may reapply for SNAP benefits.

One commenter questioned why the entire household must be disqualified for substantial winnings. The Department does not have discretion to limit the disqualification for substantial lottery and gambling winnings to only the individual that receives the winnings, and not the entire household. Section 4009 specifically imposes ineligibility for the household in which a member receives substantial lottery or gambling winnings, not just the individual.

As to the comment suggesting that disqualification be based on either lottery or gambling winnings, but not both, the statute also bases the disqualification on “lottery or gambling winnings.” Therefore, either substantial lottery or gambling winnings result in disqualification. The Department does not see a rationale for differentiating between lottery and gambling winnings.

Three comments suggested that the $25,000 threshold for substantial winnings in the proposed rule was too high. One of these comments suggested that the Department change the threshold to $2,250 because it aligns with the non-elderly/disabled resource limit in section 5(g) of the Act, and is already programmed in State eligibility systems, thereby easing State administrative application of this provision. Another commenter suggested lowering the threshold to $5,000. The last of the three comments requested that the threshold be optional to account for States with lower, more restrictive resource limits. Taking into consideration the varied comments, the Department has decided to align the definition of substantial lottery and gambling winnings with the statutory resource limit for elderly or disabled households in the final rule. The Department believes this change will simplify administration of the provision and enhance program integrity. Aligning the threshold with the non-elderly/disabled resource limit would restrict eligibility for elderly or disabled households whose winnings exceed the lower resource limit but may not meet or exceed the higher, elderly or disabled resource limit. Imposing a limit for all households linked to the resource limit for elderly or disabled households balances the intent to enhance program integrity with ensuring that households with small winnings can continue to participate in the program up to the statutory resource limit.

Consequently, the Department is modifying the final rule regulatory text regarding the threshold for substantial winnings. In the final rule, substantial lottery or gambling winnings are defined as a cash prize won in a single game, before taxes or other amounts are withheld, which is equal to or greater than the resource limit for elderly or disabled households as defined in 7 CFR 273.8(b). For administrative simplicity, all households certified to receive SNAP benefits will be subject to this definition of substantial winnings, regardless of whether they contain an elderly or disabled member. This rule creates a new section 273.11(r) to codify the disqualification and definition.

In the proposed rule, the Department intended to adjust the $25,000 lottery and gambling threshold for inflation by recalculating the threshold each fiscal year and rounding the amount to the nearest $5,000. The Department received four comments regarding annually adjusting the lottery and gambling threshold for inflation. One commenter supported adjusting the threshold for inflation, while three commenters disagreed with adjusting for inflation annually. These three commenters noted that adjusting the threshold annually would increase State administrative burden.

Since the lottery and gambling threshold for this provision now aligns with the resource limit for elderly or disabled households, the threshold shall be adjusted for inflation in accordance with 7 CFR 273.8(b)(1) and (2). The threshold shall be rounded down to the nearest $250 increment to reflect the changes for the 12-month period ending the preceding June in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor. State agencies will continue to receive an updated resource limit annually in the Cost of Living Adjustment Memorandum, which will indicate the lottery and gambling substantial winnings threshold amount. In Fiscal Year 2019, the Federal resource limit for elderly or disabled households is $3,500. The Department believes that aligning the threshold with the statutory resource limit and the current procedure for adjustment for inflation, will minimize State administrative burden. This change is codified in the final rule regulatory text at 273.11(r)(2)(ii).

The Department proposed to add new section 272.17 to codify the section 4009 requirement that State agencies, to the maximum extent practicable, establish agreements with gaming entities in order to identify individuals within the state with substantial winnings who are members of a SNAP household. The Department received five comments addressing this requirement. One comment noted that the match is critical, effective, and reduces burden on SNAP households. Four comments expressed concern regarding State agencies establishing cooperative agreements with gambling and lottery entities, noting that establishing the agreements will be problematic, burdensome, and increase costs to the State. Of these four comments, one comment asked for clarity on what would be considered a good faith effort and a practical number of gaming entities with which to establish agreements.

The Department appreciates the concerns expressed about establishing agreements with gaming entities; however, section 4009 requires the establishment of these agreements to the maximum extent practicable. In implementing this requirement, the Department understands that the types of lottery and gambling activities allowed within a State, and the administration and oversight of these games, vary from State to State. For example, some States may have a large number of small entities that pay out only minimal winnings, and it may not be feasible to enter into agreements with all of these entities. State agencies are expected to make a good faith effort to include as many gaming entities in their implementation of this rule as practicable. While households must always report substantial lottery or gambling winnings as proposed in section 273.12(a)(5)(iii)(G) (discussed below), if a State agency and gaming entity cannot come to an agreement after the State agency made a good faith effort, then the State agency would not need to continue to pursue an agreement with that gaming entity at that time. If there are no gaming entities in the State, the State agency is not expected to establish cooperative agreements.

One commenter requested clarity on how States should detect out-of-State winners. Section 4009 does not differentiate the disqualification for receipt of substantial lottery and gambling winnings based on in-State or out-of-State winnings. States are not required to enter into cooperative agreements with out-of-State gaming entities. However, households are required to report substantial winnings, regardless if they are won in-State or out-of-State. If a State agency becomes aware of a household member winning substantial winnings from a gaming entity outside of the State, then the State would follow procedures under 273.12(c)(3) for unclear information if that information is not verified and clear. The Department believes the proposed rule was sufficiently clear on the requirement for State agencies to establish cooperative agreements with gaming entities, and is not making changes in the final rule, but will clarify as needed with additional guidance as States implement the provision.

One commenter questioned whether gaming entities would be compensated for costs associated with establishing cooperative agreements and suggested that the costs included in the proposed information collection appeared to be minimal. The Department is not authorized to reimburse gaming entities for their business costs, but the associated allowable State agency costs of cooperative agreements would be reimbursed at 50 percent in accordance with 277.4(b). The Department will clarify as needed with additional guidance as States implement the provision.

In the final rule, the Department is revising the requirements for the State Plan of Operation in 272.2(d)(1) to include information about cooperative agreements into which the State has entered with gaming entities.

The Department proposed that a cooperative agreement established between the State agency and a gaming entity would specify that the gaming entity would share information about individuals with substantial winnings with the State agency as frequently as is feasible to identify SNAP recipients with substantial winnings. The Department received four comments that expressed concern about safeguarding confidential information of SNAP applicants and recipients. As noted in the proposed rule, cooperative agreements are to solely allow for the gaming entities to transmit information to State agencies; State agencies are prohibited from sharing any information about SNAP households with gaming entities. Cooperative agreements shall specify the type of information shared by the gaming entity and include safeguards limiting the release and disclosure of personally identifiable information to parties outside of those included in the agreement. The Department has incorporated a reference to 272.1(c), which protects privacy concerns, at 272.17(b) in the final rule and believes this adequately addresses the concerns.

The Department proposed to add paragraph 273.12(a)(1)(viii) and revise paragraphs 273.12(a)(5)(iii)(E) and 273.12(a)(5)(vi)(B) to require households to self-report substantial winnings to the State agency administering the household's SNAP benefits, in accordance with the reporting timeframes outlined in section 273.12(a)(2). The Department received five comments about SNAP recipients self-reporting substantial winnings to State agencies. Of the five comments, one comment suggested that State agencies should rely on self-reporting, the media, and Internal Revenue Service (IRS) yearly tax reports to identify SNAP recipients who win a substantial amount of lottery and gambling winnings. Another of the five comments noted that gambling winnings are already tracked by the IRS and easy to find. One commenter disagreed with adding the reporting requirement, while another comment encouraged the Department to ensure that reporting requirements do not unduly burden SNAP households. The last of the five comments supported the self-reporting requirement and suggested that the disqualification for not reporting substantial lottery and gambling winnings should not extend to the entire household, but only to the individual who did not report.

The Department appreciates the comments received concerning the burden to SNAP households that must self-report substantial winnings. However, households certified to receive SNAP must report substantial winnings so that the State agency may immediately act on household changes, as required by section 4009.

The Department is adopting the regulatory text from the proposed rule as final, and is making two clarifications due to the previous publication of the “Supplemental Nutrition Assistance Program (SNAP): Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008” final rule on January 6, 2017 (82 FR 2010) (FCEA final rule), which made changes to section 273.12(a)(2). The Department is clarifying that, in accordance with section 273.12(a)(2), certified SNAP households must report substantial lottery and gambling winnings, as defined by this final rule, within 10 days of the date the household receives the substantial winnings or, at the State agency's option, within 10 days of the end of the month in which the household received the winnings. Additionally, 273.12(a)(5)(iii)(E) was re-designated as 273.12(a)(5)(iii)(G) in the FCEA final rule, and, therefore, the Department is codifying the requirement for households to self-report substantial winnings at section 273.12(a)(5)(iii)(G) in the final rule.

The Department received four comments addressing the proposed requirement in section 272.17(c)(4) for State agencies to provide households with a notice of adverse action as described in section 273.13 before terminating benefits based on receipt of substantial lottery and gambling winnings. One of the four comments requested clarity on how States may inform SNAP households of the new lottery and gambling disqualification, and the rules for re-establishing eligibility for SNAP. Two of the four comments agreed with the Department's position that it is not necessary to include a question on the initial SNAP application asking applicants if anyone in the household has ever received substantial lottery or gambling winnings as section 4009 is aimed at households already participating in SNAP. The last of the four comments requested clarity on notices informing households of its ineligibility for SNAP.

As noted in the preamble to the proposed rule, this disqualification applies to participating SNAP households. Current regulations at 7 CFR 273.2(e)(1) require the State agency to inform households during the interview of their rights and responsibilities, including the households' responsibility to report changes. Therefore, at the time a household is certified to receive SNAP, the State agency is required to inform the household that it may lose eligibility for SNAP if a household member receives substantial lottery and gambling winnings.

States have flexibility in determining how to best inform households that have been disqualified due to receipt of substantial lottery or gambling winnings of the requirements for re-establishing eligibility. Such information may be provided in various ways, including at the time of case closure and/or the notice of adverse action. Including information in the notice of adverse action about how households may regain eligibility is a best practice for informing households that have been disqualified due to significant lottery or gambling winnings. The Department is making no changes in the final rule because it believes that the rule as proposed sufficiently addressed the above issues.

In new section 272.17(c), the Department proposed to give State agencies discretion to determine whether information about a SNAP household member's receipt of substantial lottery or gambling winnings received through data matches with gaming entities is verified upon receipt. The Department received three comments addressing verification of data matches. One commenter supported this discretion; two commenters recommended requiring States to send a notice to households to verify lottery or gambling winnings information received from data matches with gaming entities before disqualifying households. As noted in the proposed rule, data received through cooperative agreements with gaming entities may come from a wide variety of gaming entities ( e.g. public or private entities; local, statewide or national entities) with varying degrees of reliability.

Based upon the comments and further review, the Department has determined that information from data matches regarding lottery or gambling winnings does not fall within the definition in 273.2(f)(9)(iii) of information that is “verified upon receipt.” However, State agencies have existing discretion in 273.2(f)(2) and (3) to determine what information is questionable and requires verification, so long as the criteria used is consistent. In this final rule, the Department is clarifying that the standards regarding verification in 273.2(f)(2) and (3) apply to information from data matches regarding lottery and gambling winnings.

In section 272.17(c)(4), the Department proposed requiring State agencies to send households a notice of adverse action, in accordance with section 273.13 and prior to termination, when the household receives substantial winnings during their certification period. For households found to have received substantial winnings at the time of their case's recertification, the proposed rule stated that the State agency would provide these households with a notice of denial, per section 273.10(g)(2).

Additionally, since the publication of the proposed rule, the FCEA final rule was published on January 6, 2017. The FCEA final rule updated procedures at section 273.12(c)(3) on how to treat unclear information, including when the State must send households a Request for Contact (RFC) to resolve unclear information. When information about a household's receipt of substantial winnings during the certification period is unclear, the State would follow the procedures outlined at section 273.12(c)(3).

One of these commenters also suggested that State agencies request information on deductions withheld from the household's winnings when contacting a household after the State has learned that the household has received substantial winnings. As previously discussed, basing the disqualification on net, instead of gross, winnings would be overly burdensome. Therefore, the Department will not require States agencies to request information about deductions from winnings.

The Department believes that the procedures established in the proposed rule and those updated in the FCEA final rule give households sufficient notice when action is taken on their case due to receipt of substantial winnings and, therefore, is adopting the provisions as proposed.

Section 4009 requires that households disqualified for substantial winnings remain ineligible until they again meet the allowable financial resources and income eligibility requirements of the Act. The Department received one comment that suggested adding a timeframe for when an applicant may re-apply for SNAP benefits under program income and resource requirements and to include an appeals process when a household is disqualified under this rule. Since section 4009 provides that a household remain ineligible “until the household meets the allowable financial resources and income eligibility requirements,” specifying a timeframe is not appropriate since any set timeframe may not reflect the circumstances under which a disqualified household does become eligible again. This final rule adopts the proposed rule's language that previously disqualified households remain ineligible until they meet the income and eligibility requirements outlined in sections 273.8 and 273.9. In addition, the right to request a fair hearing under section 273.15 for an action that affects a household's participation in the program applies to households disqualified under this rule for substantial lottery and gambling winnings without need for an explicit statement.

The Department received three comments requesting guidance on how the new lottery and gambling disqualification in this rule applies to households certified for SNAP under categorical eligibility requirements defined at 7 CFR 273.2(j). Under this rule, households certified to receive SNAP benefits under section 273.2(j) that lose eligibility because an individual member received substantial lottery or gambling winnings, as defined by this rule, will remain ineligible until they meet the income and eligibility requirements in the Act detailed in sections 273.8 and 273.9, as required by section 4009. The Department will make no changes to the final rule.

Section 4015 of the 2014 Farm Bill amended section 11(p) of the Act (7 U.S.C. 2020(p)) to require State agencies to use an immigration status verification system established under section 1137 of the Social Security Act (SSA) (42 U.S.C. 1320b-7) and an income and eligibility verification system, in accordance with standards set by the Secretary. Before the 2014 Farm Bill, State agencies were not required to use either of these verification systems.

Current regulations at 7 CFR 273.2(f)(1)(ii) require that State agencies verify the eligible immigration status of all non-citizens applying for SNAP benefits but do not specify the system that State agencies must use. The amendments made by the 2014 Farm Bill mandate that State agencies use an immigration status verification system established under section 1137 of the SSA. Section 1137(d)(3) of the SSA (42 U.S.C. 1320b-7(d)(3)) requires verification of immigration status “through an automated or other system” designated by the Immigration and Naturalization Service (INS) for use by the States. The only immigration status verification system currently designated under section 1137 of the SSA is the Systematic Alien Verification for Entitlements (SAVE) Program.

SAVE is an inter-governmental service accessible by Federal, State, and local benefit-granting agencies and licensing bureaus that are authorized by law to verify immigration status. State agencies use the SAVE system to verify the immigration status of SNAP applicants, ensuring benefits are only provided to individuals whose citizenship or immigration status allows them to receive SNAP. As discussed in the preamble to the proposed rule, under the Homeland Security Act of 2002 (Pub. L. 107-296), INS functions transferred from the Department of Justice to the newly created Department of Homeland Security (DHS). Within DHS, the U.S. Citizenship and Immigration Services (USCIS) administers the SAVE program.

USCIS has confirmed that the only two ways a SNAP State agency can currently verify immigration status with USCIS are both through the SAVE system. Under electronic verification, a State agency submits a request electronically and the SAVE system either confirms the applicant's status or requests submission of additional information. Under paper-based verification, a State agency mails a completed Form G-845, Verification Request, with a copy of the applicant's documentation, to a USCIS State Verification Office. A State agency may also attach a Form G-845 Supplement, Document Verification Request Supplement, to request more detailed information on an applicant's immigration status, citizenship, and sponsorship. To conduct either electronic or paper-based verification through the SAVE system, the State agency must first sign a memorandum of agreement with USCIS.

The Department proposed to amend regulations at 7 CFR 272.11(a) and 273.2(f)(1)(ii)(A) to require States to use an immigration status verification system established under section 1137 of the SSA (42 U.S.C. 1320b-7) when verifying immigration status of SNAP applicants. The Department also proposed to clarify in section 273.2(f)(1)(ii) and (f)(10) that, even though households are still required to submit documentation to verify the immigration status of household members who are non-citizens, State agencies must also verify the validity of that status with USCIS.

As discussed in the preamble to the proposed rule, all 53 State agencies (including the District of Columbia, Guam, and the Virgin Islands) have indicated to FNS that they already use the SAVE system to verify immigration status. Commenters were, therefore, generally supportive of the proposed changes, with one noting that SAVE is a system that States are already using and requiring its use ensures compliance with statutory and regulatory requirements without imposing new burdens or costs on States. Three commenters made requests for clarification.

One commenter asked the Department to clarify that the use of SAVE is limited to verifying the status of any non-citizen household member applying for SNAP, but not for any non-applicant household members, including individuals applying on behalf of a household. As per current regulations, the status of non-applicant household members does not need to be verified. The Department believes the proposed language at section 273.2(f)(10) requiring documentation and verification “for each alien applying for SNAP benefits” is sufficiently clear and is therefore not adopting additional clarifications for non-applicant households in the final rule.

Another commenter asked the Department to follow a State agency's policy and clarify that a delay in receipt of data from the SAVE system is not a basis for a delay in application processing timelines. Under the State policy, if all other factors of eligibility have been established and the non-citizen applicant is otherwise eligible, benefits must be granted while awaiting a SAVE response. This policy is consistent with existing regulations at section 273.2(f)(1)(ii)(B) and no change in the final rule is necessary.

A third commenter noted the SAVE system can only verify that the information provided by an applicant is accurate at one point in time; if immigration status has recently changed, SAVE may not always be updated to reflect the current status. The commenter requested the Department clarify that, if an applicant provides paper documentation indicating a new status, State agencies should be allowed to use prudent judgment to determine the status of the applicant. As the Department believes the regulatory requirements around immigration status verification are already consistent with other verification practices for questionable information, no additional clarifying language has been added to the final rule. The Department believes current verification procedures for questionable information are sufficient for these rare occurrences.

The Department also proposed in section 273.2(f)(10)(vi) to allow, but not require, State agencies to use SAVE to confirm whether an affidavit of support has been executed for a sponsored non-citizen. No comments were submitted on this issue, and the Department adopts the provision with technical edits to ensure consistent terminology.

When INS ceased to exist on March 1, 2003, its functions transferred from the Department of Justice to the DHS. Within DHS, USCIS administers the SAVE program, as well as overseeing lawful immigration to the United States and naturalization of new American citizens. The proposed rule updated references from INS to USCIS throughout parts 271, 272, and 273 accordingly. Commenters were either supportive of or silent on these changes, and the final rule adopts the changes as proposed.

Section 4015 of the 2014 Farm Bill requires State agencies to use an income and eligibility verification system (IEVS), in accordance with standards set by the Secretary. As discussed in the preamble to the proposed rule, standards for the optional use of IEVS already exist at sections 272.8(a)(1), 273.2(b)(2), and 273.2(f)(9). In accordance with the statutory changes, the Department proposed amending these regulations to change the use of IEVS from an option to a requirement. State agencies must follow standard verification procedures for IEVS matches. As there were no substantive comments on these proposed changes, the final rule adopts the changes as proposed.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This final rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. While there may be some burden/impact on State agencies and small entities involved in the gaming industries, the impact is not significant as the burden would be on State agencies to enter into appropriate cooperative agreements.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

SNAP is listed in the Catalog of Federal Domestic Assistance Programs under 10.551. For the reasons set forth in the Federal Register notice published June 24, 1983 (48 FR 29115), this program is included in the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. The Department has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

The Department has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. After a careful review of the rule's intent and provisions, the Department has determined that the changes to SNAP regulations in this proposed rule are driven by legislation and therefore required. The Department specifically prohibits the State and local government agencies that administer the program from engaging in discriminatory actions. Discrimination in any aspect of program administration is prohibited by SNAP regulations, the Food and Nutrition Act of 2008, the Age Discrimination Act of 1975, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 and Title VI of the Civil Rights Act of 1964. State agencies that participate in SNAP must take reasonable steps to ensure that persons with Limited English Proficiency (LEP) have meaningful access to programs, services, and benefits. This includes the requirement to provide bilingual program information and certification materials and interpretation services to single-language minorities in certain project areas. SNAP State agencies that do not provide meaningful access for LEP individuals risk violating prohibitions against discrimination based on National Origin in the Food and Nutrition Act of 2008, as amended, Title VI of the Civil Rights Act of 1964 (Title VI), and SNAP program regulations. SNAP State agencies must also ensure equal opportunity access for persons with disabilities. This includes ensuring that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with people without disabilities. State Agencies that do not provide persons with disabilities equal opportunity access to programs may risk violating prohibitions against disability discrimination in the Rehabilitation Act of 1978, the American with Disabilities Act (ADA), and SNAP program regulations. Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with non-discrimination requirements and the regulations at 7 CFR 272.6.

Executive Order 13175 requires Federal agencies to consult and coordinate with Indian Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. On August 15, 2018, the Department participated in a Tribal Consultation on the Lottery provisions of this rule. There were no significant comments. Tribal organizations with gaming facilities may be approached by the State(s) in which they are located to enter into cooperative agreements to identify individuals with significant lottery or gambling winnings. The Department also briefed Indian Tribes on the provisions of this rule at a listening session on February 14, 2019. Indian Tribes were subsequently provided the opportunity to consultation on this rule but the Department received no feedback. If an Indian Tribe requests future consultation, the Department will work to ensure meaningful consultation is provided.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number.

In accordance with the Paperwork Reduction Act of 1995, this final rule will contain information collections that are subject to review and approval by the OMB; therefore, the Department submitted the proposed rule for public comment regarding changes in the information collection burden resulting from the provisions in this final rule.

In accordance with the Paperwork Reduction Act of 1995, the notice included in the proposed rule invited the general public and other public agencies to comment on the proposed information collection. This is a new collection for final rule, Supplemental Nutrition Assistance Program: Student Eligibility, Convicted Felons, Lottery and Gambling, and State Verification Provisions of the Agricultural Act of 2014 (RIN 0584-AE41). Section 4009 of the Agricultural Act of 2014 (the Act) makes SNAP participants with substantial lottery and gambling winnings ineligible for SNAP benefits. Section 4009 of the Act also provides that State SNAP agencies are required to the maximum extent practicable to establish cooperative agreements with gaming entities within the State to identify SNAP recipients with substantial winnings. USDA is implementing section 4009 through final rulemaking.

State SNAP agencies are required, to the maximum extent practicable, to establish cooperative agreements with gaming entities within the State to identify SNAP recipients with substantial winnings. Gaming entities (both State public agency and private business gaming entities) that enter into the cooperative agreements will share information with the State SNAP agency on individuals within their gaming establishment who win amounts equal to or greater than the maximum allowable resource limit for elderly or disabled SNAP households, as defined in 7 CFR 273.8(b).

The provisions regarding students, felon disqualification and State eligibility verification systems in this final rule do not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995. State agencies will be required to make minimal, one-time changes to their application process in order to comply with the provisions of the felon disqualification attestation requirement. Since State agencies are already required to verify the immigration status of non-citizens applying for the program, the impact of this provision is negligible. Other minimal burdens imposed on State agencies by this final rule are usual and customary within the course of their normal business activities.

These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the information collection requirements have been approved, the Department will publish a separate action in the Federal Register announcing OMB approval.

Requests for additional information or copies of this information collection should be directed to Mary Rose Conroy at 703-305-2803.

Title: Supplemental Nutrition Assistance Program: Student Eligibility, Convicted Felons, Lottery and Gambling, and State Verification Provisions of the Agricultural Act of 2014.

Form Number: [N/A].

OMB Number: [0584-NEW].

Expiration Date: [Not Yet Determined.]

Type of Request: New collection.

Abstract: This final rule will implement section 4009 of the Agricultural Act of 2014 (Ending Supplemental Nutrition Assistance Program Benefits for Lottery or Gambling Winners), which provides that a household in which a member receives substantial lottery or gambling winnings shall lose eligibility for SNAP until the household meets normal income and resource standards. This rule defines lottery or gambling winnings equal to or greater than the resource limit for elderly or disabled households as defined in 7 CFR 273.8(b) as substantial. The provision also requires States to establish cooperative agreements, to the maximum extent practicable, with entities responsible for regulating or sponsoring gaming activities (gaming entities) in their State in order to identify individuals with substantial winnings.

This rule does not carry any recordkeeping burden. Reporting burden details are provided below.

Affected public: State agencies, State gambling entities, gaming entities.

Regulation Section: 7 CFR 272.17.

Respondent Type: State agency and gaming entities.

Estimated number of respondents: 250.

Total annual responses: First year 1,561,350; Ongoing 1,560,800.

Estimated annual burden hours: First year 561,920 hrs; Ongoing 193,920 hrs.

Estimated cost to respondents: First year $23,317,573; Ongoing $3,874,373.

In the proposed rule's information collection burden, the Department assumed that all 53 State agencies would establish cooperative agreements despite large variation in gaming activities among States. The final rule's information collection estimates are based on 50 of the 53 State agencies implementing this provision to establish cooperative agreements. The Department assumes that at least three of the 53 State agencies do not have gambling or lottery in the State. These three State agencies would not be subject to this information collection because the rule does not require States to establish agreements with gaming entities outside of the State. These three State agencies are required to act when a household self-reports substantial lottery or gambling winnings, or the State learns of a household's winnings. Nevertheless, the Department does not anticipate that these States will experience an increased burden for action on this information, as it is estimated that States without gaming entities will have significantly fewer households that receive substantial winnings. Therefore, the estimates in this final information collection are based on 50 State agencies establishing cooperative agreements as required by section 4009.

It is estimated that establishing the cooperative agreements between the State Agency and the gaming entities will take approximately 320 hours per response (80,000 hours total). This includes time for the State agency to reach out to gaming entities in the State, negotiate terms for sharing identifying information of winners, establish secure connections for sharing information, and complete all necessary reviews of agreements by legal counsel and State leadership. Our estimate assumes that 50 of the 53 State Agencies receiving SNAP funding will implement this rule despite large variations in gaming activities among States.

It is estimated that creating a computerized system to match information on winners from gaming entities with State SNAP participation lists will take approximately 4,160 hours per response (208,000 hours total). All States currently make use of other computerized data matching systems ( e.g., SAVE for immigration verification), so costs assume States will re-program existing systems.

Once the computerized matching system is in place, the matches between the winner list and SNAP participation list should occur automatically and with negligible cost. There is no national database of how many people win large amounts of money in State lotteries or through other gaming activities. For this estimate, it is assumed that approximately 36,000 SNAP participants (average 720 per State Agency) nationally will be identified every year through the above matches, but, of these, approximately 23,000 (average 460 per State agency) will be found to have actual substantial lottery or gambling winnings (the others may be simply misidentified because of a similar name, inaccurate reporting, etc.). For each match, an eligibility worker will:

• Generate a notice to an identified match requesting more information (10 minutes).

• Review the returned information from the participant and engage in any additional verification (20 minutes).

• If the matched participant is not a winner—Update the case file (10 minutes).

• If the matched participant is a winner—Un-enroll the household and send notice of adverse action (30 minutes).

Lottery or gambling winners who lose eligibility for SNAP will need to be re-evaluated according to normal program rules if they again decide to apply for SNAP benefits. This process will vary by State depending on the categorical eligibility policy options in place. Eligibility workers will need to identify if a current SNAP applicant previously lost eligibility due to substantial winnings.

Due to the change in the final rule, lowering the threshold for substantial lottery and gambling winnings to the $3,500 resource limit for elderly or disabled households under 7 CFR 273.8(b), the Department anticipates that State agencies will need to reevaluate significantly more households than estimated in the proposed information collection. This will increase the estimated cost and burden for States.

The Department 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.

For the reasons set forth in the preamble, 7 CFR parts 271, 272 and 273 are amended as follows:

On December 18, 2018, the FDIC adopted a final rule relating to the treatment of reciprocal deposits. The final rule was published in the Federal Register on February 4, 2019 (84 FR 1346). Several industry participants have raised concerns about whether a sentence in the preamble of the final rule could be read as changing existing interpretations related to accepting or receiving deposits. The sentence is italicized below:  1

The FDIC does not intend this preamble language to change existing interpretations related to accepting or receiving deposits. Therefore, in an effort to avoid confusion, the FDIC is deleting the sentence in question along with its corresponding footnote and, amending the sentence that immediately follows. The revised paragraph reads as follows:

As discussed above, these changes to the preamble text are technical, and do not change the rule text. Accordingly, the FDIC finds that notice and comment procedures are unnecessary. Further, because the changes are technical, delaying the effective date would serve no purpose. Therefore, these changes will be effective upon publication.

For convenient reference, the FDIC is posting the revised preamble and final rule in their entirety on its website.

Upon request, FDA has classified the ventilatory electrical impedance tomograph as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act and part 807 (21 U.S.C. 360(k) and 21 CFR part 807, respectively).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the 510(k) process, when necessary, to market their device.

On September 29, 2017, TIMPEL Inc. submitted a request for De Novo classification of the ENLIGHT 1810. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on December 20, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 868.1505. We have named the generic type of device ventilatory electrical impedance tomograph, and it is identified as a prescription non-invasive, non-radiological ventilatory device that provides an assessment of local impedance variation within a cross-section of a patient's thorax.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

At the time of classification, ventilatory electrical impedance tomographs are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. 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 the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 868 is amended as follows:

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

The Office of Management and Budget (OMB) issued guidance for Federal agencies on calculating the catch-up adjustment. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-16-06). Under the guidance, the Department identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

The Bureau issued an interim final rule providing for calculated catch-up adjustments on June 30, 2016 (81 FR 42478) with an effective date of August 1, 2016, and requesting comments post-promulgation. The Bureau issued a final rule affirming the catch-up adjustments set forth in the interim final rule on December 2, 2016 (81 FR 86953). The Bureau then issued a final rule making the next scheduled annual inflation adjustment for 2017 on January 23, 2017 (82 FR 7649) and for 2018 on February 6, 2018 (83 FR 5192).

OMB recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act which agencies must complete by January 15, 2019. See December 14, 2018, Memorandum for the Heads of Executive Departments and Agencies, from Mick Mulvaney, Director, Office of Management and Budget, re: Implementation of the Penalty Inflation Adjustments for 2019, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-19-04). The guidance states that the cost-of-living adjustment multiplier for 2019, based on the Consumer Price Index (CPI-U) for the month of October 2018, not seasonally adjusted, is 1.02522. (The annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U. For 2019, OMB explains, October 2018 CPI-U (252.885) / October 2017 CPI-U (246.663) = 1.02522.) The guidance instructs agencies to complete the 2019 annual adjustment by multiplying each applicable penalty by the multiplier, 1.02522, and rounding to the nearest dollar. Further, agencies should apply the multiplier to the most recent penalty amount that includes the initial catch-up adjustment required by the Act.

The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. This final rule adjusts the following civil monetary penalties contained in the Bureau's regulations for 2019 by multiplying 1.02522 ( i.e., the cost-of-living adjustment multiplier for 2019) by each penalty amount as updated by the adjustment made in 2018:

Consistent with the Act, the adjusted penalty levels for 2019 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2019 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015 (the date of the Act). The Act does not, however, change previously assessed penalties that the Bureau is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because the rule makes adjustments for inflation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(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 rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The Act requires agencies to publish annual inflation adjustments by no later than January 15, of each year, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the 2019 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register .

Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. Under section 553(b), the Bureau finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, the Bureau is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish a final rule and to update the civil penalty amounts by applying a specified formula. The Bureau has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment on this rule prior to promulgation. Thus, providing for notice and public comment is impracticable and unnecessary.

Furthermore, the Bureau finds under section 553(d)(3) of the APA that good cause exists to make this final rule effective immediately upon publication in the Federal Register . In the Act, Congress expressly required Federal agencies to publish annual inflation adjustments to civil penalties in the Federal Register by January 15 of each year, notwithstanding section 553 of the APA. Under the statutory framework and OMB guidance, the new penalty levels take effect immediately upon the effective date of the adjustment. The statutory deadline does not allow time to delay this rule's effective date beyond publication. Moreover, an effective date after January 15 would delay application of the new penalty levels, contrary to Congress's intent.

For the reasons given in the preamble, the Department of the Interior amends Chapter 1 of title 25 Code of Federal Regulations as follows.

I. Summary and Explanation Process Safety Management of Highly Hazardous Chemicals (§ 1910.1119)

Appendix A of the Process Safety Management (PSM) standard (§ 1910.1119) contains the “List of Highly Hazardous Chemicals, Toxics and Reactives.” A typographical error was recently discovered in the Chemical Abstract Service (“CAS”) number for the chemical “Methyl Vinyl Ketone.” The published version of the standard incorrectly lists the CAS number as “79-84-4;” the correct CAS number is “78-94-4.” The error first appears in the proposed rule of the standard (55 FR 29167, July 17, 1990). It should be noted that the incorrect CAS number, “79-84-4,” is not a valid CAS number and does not represent a different chemical. The error is that the numerals eight and nine of the CAS number for methyl vinyl ketone were accidentally switched when publishing the proposed rule. That error was repeated in the final rule (57 FR 6407, Feb. 24, 1991).

OSHA is correcting 29 CFR 1910.119 Process Safety Management of Highly Hazardous Chemicals to correct the CAS number for methyl vinyl ketone in Appendix A of the standard.

On June 8, 2011, OSHA updated its standards regulating slings for general industry (§ 1910.184); shipyard employment (§§ 1915.112, 1915.113, and 1915.118), and construction (§ 1926.251). Modifications to these standards included removal of previous load capacity tables (§ 1910.184, tables N-184-1, N-184-3 through N-184-22; and G-1 through G-5, G-7, G-8, and G-10) and references to these tables (§ 1915.112; § 1915.113; and § 1926.251; tables H-1 and H-3 through H-19). The updated rule now requires employers to use slings with permanently affixed identification markings that depict the maximum load capacity. The final rule also provides similar protection for shackles in §§ 1915.113 and 1926.251.

OSHA is correcting 29 CFR 1910.184 Slings to restore two figures, Figure N-184-4 and Figure N-184-5,that were inadvertently removed by amendments published on June 8, 2011 (76 FR 33590; effective July 8, 2011). Figure N-184-4 shows the basic sling configurations with vertical legs. Figure N-184-5 shows the basic sling configurations with angled legs. Both of these figures are referenced in section (b) definitions of the standard and should not have been removed.

OSHA determined that this rulemaking is not subject to the procedures for public notice and comment specified in Section 4 of the Administrative Procedures Act (5 U.S.C. 553), Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)), and 29 CFR 1911.5. This rulemaking only corrects a minor typographical error and the erroneous deletion of illustrative figures and does not affect or change any existing rights or obligations. No stakeholder is likely to object to these corrections. Therefore, the agency finds good cause that public notice and comment are unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

Loren Sweatt, Acting Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this document pursuant to 29 U.S.C. 653,655, and 657, Secretary's Order 1-2012 (77 FR 3912; Jan. 25, 2012), and 29 CFR part 1911.

Accordingly, OSHA is correcting 29 CFR part 1910 with the following technical amendments:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulation are also published on PBGC's website ( https://www.pbgc.gov ).

PBGC uses the interest assumptions in appendix B to part 4022 (“Lump Sum Interest Rates for PBGC Payments”) to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Because some private-sector pension plans use these interest rates to determine lump sum amounts payable to plan participants (if the resulting lump sum is larger than the amount required under section 417(e)(3) of the Internal Revenue Code and section 205(g)(3) of ERISA), these rates are also provided in appendix C to part 4022 (“Lump Sum Interest Rates for Private-Sector Payments”).

This final rule updates appendices B and C of the benefits payment regulation to provide the rates for May 2019 measurement dates.

The May 2019 lump sum interest assumptions will be 1.00 percent for the period during which a benefit is (or is assumed to be) in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for April 2019, these assumptions represent a decrease of 0.25 percent in the immediate rate and are otherwise unchanged.

PBGC updates appendices B and C each month. PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to issue new interest assumptions promptly so that they are available for plans that rely on our publication of them each month to calculate lump sum benefit amounts.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during May 2019, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication. PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

On May 21, 2012 and June 11, 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington Area was designated as marginal nonattainment for the 2008 ozone NAAQS. The Washington Area consists of the Counties of Calvert, Charles, Frederick, Montgomery, and Prince George's in Maryland, the Counties of Arlington, Fairfax, Loudoun, and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in Virginia, and the District of Columbia. See 40 CFR 81.309, 81.321, and 81.347.

Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the State containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA. 1

On March 12, 2018, February 5, 2018, and January 3, 2018, the District, Maryland, and Virginia, respectively, formally submitted requests to redesignate their portions of the Washington Area from marginal nonattainment to attainment for the 2008 ozone NAAQS. 2 Concurrently, the District, Maryland, and Virginia formally submitted, as revisions to their respective SIPs, a joint maintenance plan prepared by the Metropolitan Washington Council of Governments (MWCOG) for the Washington Area to ensure continued attainment for at least 10 years following redesignation. The maintenance plan includes MVEBs for NO X and VOC for the years 2014, 2025, and 2030.

On August 8, 2018 (83 FR 39019), EPA published a notice of proposed rulemaking (NPRM) for the District, Maryland, and Virginia. In the NPRM, EPA proposed approval of Maryland's and Virginia's requests to redesignate to attainment their respective portions of the Washington Area, pursuant to CAA section 107(d)(3). 3 EPA did not propose approval of the redesignation request for the District's portion of the Washington Area and will address the District's redesignation request for its portion of the Area in a separate rulemaking action. EPA also proposed to approve, as a revision to the District's, Maryland's, and Virginia's SIPs, the joint maintenance plan submitted by the District, Maryland, and Virginia that demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the Washington Area. Additionally, EPA proposed to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the 2014, 2025, and 2030 MVEBs for NO X and VOC for the Washington Area identified in the Washington Area maintenance plan.

EPA reviewed the District's, Maryland's, and Virginia's redesignation requests and found that Maryland's and Virginia's portions of the Washington Area have satisfied the requirements for redesignation pursuant to CAA section 107(d)(3)(E). As one of the criteria for redesignation to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA that demonstrates continued attainment of the NAAQS for at least 10 years following redesignation to attainment. EPA reviewed the joint maintenance plan submitted by the District, Maryland, and Virginia and found that it satisfies the requirements of section 175A. The Washington Area maintenance plan includes 2014, 2025, and 2030 MVEBs for NO X and VOC for the 2008 ozone NAAQS. EPA found the submitted MVEBs adequate and approvable as a revision to the District's, Maryland's, and Virginia's SIPs. 4 EPA's rationale for these actions can be found in the August 8, 2018 NPRM and corresponding Technical Support Documents (TSDs) included in the docket for this action available online at www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.

EPA received comments on the August 8, 2018 NPRM from four commenters. Comments from two anonymous commenters did not concern any of the specific issues raised in the NPRM, nor did they address EPA's rationale for the proposed approval of Maryland's and Virginia's redesignation requests or the District's, Maryland's, and Virginia's joint maintenance plan. Therefore, EPA is not responding to those comments. EPA received relevant comments from two commenters. Those comments and EPA's responses are discussed below. All of the comments received and any submitted attachments are included in the docket for this action, available online at www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.

Commenter 1: On August 16, 2018, EPA received anonymous comments on the August 8, 2018 NPRM. The commenter questioned how EPA can redesignate a portion of the Washington Area if the Area was designated as one nonattainment area due to air quality in the entire Area not meeting the standard. The commenter also questioned how the maintenance plan for the entire Washington Area could be approved without first redesignating the District's portion of the Area. The commenter suggested that the entire Washington Area, including the District, be redesignated prior to the approval of the maintenance plan.

EPA Response: Section 107(d)(3)(E) of the CAA, which sets forth the criteria that must be met to redesignate a nonattainment area, specifically mentions redesignating a portion of a nonattainment area. Section 107(d)(3)(E) states that “[t]he Administrator may not promulgate a redesignation of a nonattainment area ( or portion thereof ) to attainment unless . . .” five criteria in sections 107(d)(3)(E)(i)-(v) are met. (Emphasis added). Therefore, that statute allows EPA to redesignate to attainment Maryland's and Virginia's portions of the Washington Area without simultaneously redesignating the District's portion. See, e.g., Pennsylvania portion of the Philadelphia-Wilmington, PA-NJ-DE nonattainment area for the 1997 Annual and 2006 24-Hour fine particulate matter standard, final rulemaking for redesignation, 80 FR 22112 (April 21, 2015); Ohio portion of the Youngstown-Warren-Sharon, OH-PA nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 72 FR 32190 (June 12, 2007); Indiana portion of the Chicago-Gary-Lake County, IL-IN nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 75 FR 26113 (May 11, 2010); and, West Virginia portion of the Huntington-Ashland, WV-KY nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 71 FR 54421 (September 15, 2006).

Regarding the initial nonattainment designation for the Area based on air quality not meeting the standard, air quality in the entire Area has improved, and on November 14, 2017, EPA determined that the entire Washington Area attained the 2008 ozone NAAQS by the July 20, 2016 attainment date. 82 FR 52651. As discussed in the August 8, 2018 NPRM, the entire Washington Area also continues to attain the 2008 ozone NAAQS. Because the entire Area is in attainment, EPA received formal requests from the District, Maryland, and Virginia to redesignate their respective portions of the Washington Area to attainment for the 2008 ozone NAAQS. As explained in the NPRM, EPA found that Maryland and Virginia have satisfied the CAA section 107(d)(3)(E) requirements for redesignation of their respective portions of the Washington Area, so EPA is approving Maryland's and Virginia's requests and redesignating their respective portions of the Washington Area to attainment in accordance with section 107(d)(3)(E) of the CAA. As stated in the NPRM, EPA will act on the District's redesignation request at a later date.

The commenter also questioned how EPA can approve the maintenance plan for the Washington Area prior to redesignating the District's portion of the Area. However, CAA section 107(d)(3)(E)(iv) requires that in order to redesignate an area to attainment, EPA must first have fully approved a maintenance plan for the area meeting the requirements of CAA section 175A. EPA has long interpreted that provision to also allow for concurrent approval of the maintenance plan or other necessary SIP submissions. See Calcagni memorandum at 7. Because a maintenance plan is one of the prerequisites in sections 107(d)(3)(E)(i)-(iv) for redesignation, EPA cannot redesignate an area until the area has a maintenance plan approved by EPA.

Furthermore, nothing in CAA sections 107(d)(3)(E) or 175A prohibits EPA from approving a maintenance plan for an area prior to redesignating the area, and approving the maintenance plan into the District's SIP prior to redesignating the District does not adversely impact the District's ability to maintain the NAAQS and will provide for continued maintenance in the Washington Area, including the District, for the 2008 ozone NAAQS. Therefore, EPA is approving the maintenance plan as a revision to the District's, Maryland's, and Virginia's SIPs.

Commenter 2: On September 7, 2018, Earthjustice submitted comments on the August 8, 2018 NPRM on behalf of Sierra Club. The following is a summary of Earthjustice's comments and EPA's responses:

Comment 1: Earthjustice commented that redesignating the Washington Area under the 2008 ozone standard “would authorize weaker protections against ozone despite the fact that the area continues to have unhealthy levels of ozone.” Earthjustice noted that EPA just designated the Washington Area as nonattainment under the 2015 ozone NAAQS and that the most recent 2017 design value for the Washington Area is in violation of the 2015 standard. Earthjustice provided Air Quality Index (AQI) data for several days from May 2018 to August 2018 and stated that this year, air quality monitors within the Washington Area have “repeatedly recorded ozone pollution levels exceeding the level of even the 1997 standard, while far more often exceeding the level of the 2008 and 2015 standards.”  5 Earthjustice stated that, “It is inconsistent with the Act's [CAA] statutory design to allow protections against the ozone pollution that plagues the region to be weakened via a redesignation under the 2008 ozone standard.”

EPA Response: EPA does not agree that redesignating the Washington Area to attainment for the 2008 ozone NAAQS will authorize weaker protections against ozone in the area. The August 8, 2018 NPRM proposes to redesignate the Washington Area only for the 2008 ozone NAAQS and does not affect the Washington Area's designation as marginal nonattainment for the more stringent 2015 ozone NAAQS. The 2008 ozone NAAQS and 2015 ozone NAAQS are two separate standards: Areas within states are designated for each standard and must satisfy the requirements applicable to their designation for each standard. 6 The redesignation of the Washington Area from marginal nonattainment to attainment of the 2008 ozone NAAQS will not change the Area's marginal nonattainment designation under the 2015 ozone NAAQS, nor exempt the Area from meeting the applicable requirements for marginal nonattainment areas under the 2015 ozone NAAQS. Because the Washington Area was classified as marginal nonattainment under both the 2008 and 2015 ozone standards, the Area is subject to the same statutory and associated regulatory requirements in subchapter I, Part D of the CAA under both standards. Therefore, redesignating the Washington Area for the 2008 ozone NAAQS will not remove any of the protections related to the Washington Area's marginal nonattainment designation under the more stringent 2015 ozone NAAQS.

In addition, as demonstrated in the NPRM, air quality in the Washington Area satisfies the CAA section 107(d)(3)(E)(i) requirement for redesignation to attainment under the 2008 ozone NAAQS, which requires the Administrator (EPA) to determine that the area has attained the applicable NAAQS. Therefore, in order to be redesignated to attainment of the 2008 ozone NAAQS, the Washington Area must, among other requirements, attain the 2008 ozone NAAQS. On November 14, 2017 (82 FR 52651), EPA determined that the entire Washington Area attained the 2008 ozone NAAQS by the July 20, 2016 attainment date because all of the Washington Area monitoring sites with valid data had design values less than or equal to 0.075 ppm during the 2013-2015 monitoring period. The Washington Area continues to attain the 2008 ozone NAAQS, as shown by 2014-2016 and 2015-2017 design values and preliminary 2016-2018 design values throughout the Area that continue to be below the 0.075 ppm level of the 2008 ozone NAAQS. 7

Therefore, the Washington Area has satisfied the requirement in CAA section 107(d)(3)(E)(i) for redesignation to attainment of the 2008 ozone NAAQS. The Washington Area's designation status for the 2015 ozone NAAQS is not relevant to determining if the Area has satisfied the requirement in CAA section 107(d)(3)(E)(i) for redesignation for the 2008 ozone NAAQS.

EPA notes that the 2015-2017 design value exceeds the 2015 ozone standard of 0.070 ppm but does not exceed the 2008 ozone standard of 0.075 ppm. Because this redesignation is only for the less stringent 2008 standard, a design value above the 2015 standard is not relevant, as long as it is below the 2008 standard. In addition, the other monitoring data (the AQI data) provided by Earthjustice are not design values. The values provided by Earthjustice are daily maximum concentrations of ozone at monitors located in the Washington Area. Compliance with the 2008 ozone NAAQS, as well as the 1997 and 2015 NAAQS, is not determined based on daily maximum concentrations, as implied by Earthjustice, but on design values exceeding the particular NAAQS standard. A design value for an air quality monitor is the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations recorded at that monitor. See 40 CFR 50.15(b). An area's design value is based on the monitor in the area which records the highest design value over the three-year period. As discussed in the August 8, 2018 NPRM, an area “attains” the 2008 ozone NAAQS if the area's design value is below 0.075 ppm. The final 2015-2017 design values, shown in Table 1, are below the 2008 ozone NAAQS. The most recent preliminary air quality monitoring data (2016-2018 design value) is also consistent with this finding. Thus, there is no evidence that the ozone design value for the Washington Area exceeded the 2008 ozone standard.

Comment 2: Earthjustice also stated that EPA cannot approve the redesignation of the Washington Area because the Area has not satisfied its anti-backsliding obligations under the 1997 ozone standard. Earthjustice commented that EPA failed to evaluate in the NPRM if the Washington Area has met the anti-backsliding requirements under the 1997 ozone NAAQS and that Virginia lacks EPA-approved reasonably available control technology (RACT) SIPs under the 1997 standard. Specifically, Earthjustice referenced EPA's “SIP Dashboard,” which showed that for Virginia's portion of the Washington, DC-MD-VA nonattainment area for the 1997 ozone NAAQS, 10 EPA had not approved the following RACT VOC control techniques guidelines (CTGs): Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings (Publication No. EPA 453/R-08-006; September 2008) (auto and light-duty truck assembly coatings CTG), Control Techniques Guidelines for Fiberglass Boat Manufacturing (Publication No. EPA 453/R-08-004; September 2008) (fiberglass boat manufacturing materials CTG), Control Techniques Guidelines for Flat Wood Paneling Coatings (Publication No. EPA 453/R-06-004; September 2006) (flat wood paneling coatings CTG), Control Techniques Guidelines for Flexible Package Printing (Publication No. EPA 453/R-06-003; September 2006) (flexible packaging printing materials CTG), Control Techniques Guidelines for Large Appliance Coatings (Publication No. EPA 453/R-07-004; September 2007) (large appliance coatings CTG), Control Techniques Guidelines for Metal Furniture Coatings (Publication No. EPA 453/R-07-005; September 2007) (metal furniture coatings CTG), Control Techniques Guidelines for Paper, Film, and Foil Coatings (Publication No. EPA 453/R-07-003; September 2007) (paper, film, and foil coatings CTG), and Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds (Publication No. EPA 450/2-77-025; October 1977) (refinery vacuum producing systems, wastewater separators, and process unit turnarounds CTG). 11

EPA Response: EPA disagrees that the Washington Area has not met its anti-backsliding requirements for the 1997 ozone standard. In accordance with 40 CFR 51.1105(a)(1), the Washington Area is subject to those anti-backsliding controls listed in 40 CFR 51.1100(o) that were applicable to an area with a moderate nonattainment classification as of the time of revocation, until the area is redesignated to attainment for the 2008 ozone NAAQS. EPA believes Virginia and Maryland have complied with all applicable anti-backsliding requirements for the revoked 1997 ozone NAAQS.

Specifically, with respect to ozone RACT requirements under the revoked 1997 standard, EPA believes that Virginia has met its obligations. The commenter is correct that at the time Earthjustice submitted its comment, EPA's “SIP Dashboard” indicated that Virginia did not have an approved RACT SIP for the refinery vacuum producing systems, wastewater separators, and process unit turnarounds CTG under the 1997 ozone NAAQS. However, this entry in the SIP Dashboard was incorrect. On October 23, 2006, Virginia submitted a SIP revision to EPA that addressed the requirements of RACT under the 1997 ozone NAAQS (also referred to at the time as the “8-hour ozone NAAQS”) for all RACT VOC CTGs that were due at the time (September 15, 2006). EPA found that Virginia met all of the RACT requirements, 12 including those addressing the refinery vacuum producing systems, wastewater separators, and processes unit turnarounds CTG in question. On June 16, 2009 (74 FR 28444), EPA finalized approval of Virginia's October 23, 2006 SIP revision as satisfying the requirements of RACT under the 1997 8-hour ozone NAAQS.

Subsequent to Virginia's 2006 submittal, EPA issued additional CTGs for the 1997 ozone NAAQS in September 2006, 2007, and 2008. 13 With respect to CTG requirements covering lithographic printing materials and letterpress printing materials, industrial cleaning solvents, miscellaneous industrial adhesives, and miscellaneous metal products coatings and plastic parts coatings, Virginia submitted three SIP revisions on February 1, 2016 adopting RACT for these source categories located in the Northern Virginia Volatile Organic Compound Emissions Control Area. On August 23, 2016 (81 FR 57531), EPA approved Virginia's SIP revisions adopting RACT for these source categories.

Other 1997 ozone NAAQS CTGs issued subsequent to Virginia's 2006 SIP submission include those covering flat wood paneling coatings, flexible packaging printing materials, large appliance coatings, paper, film, and foil coatings, metal furniture coatings, fiberglass boat manufacturing materials, and auto and light-duty truck assembly coatings. However, no sources subject to these CTGs are located within the Northern Virginia Volatile Organic Compound Emissions Control Area. 14 Virginia therefore sent negative declaration letters to EPA on November 25, 2008 for the flat wood paneling coatings CTG and flexible packaging printing materials CTG, on December 3, 2008 for the large appliance coatings CTG, paper, film, and foil coatings CTG, and metal furniture coatings CTG, on May 6, 2009 for the fiberglass boat manufacturing materials CTG, and on May 18, 2009 for the auto and light-duty truck assembly coatings CTG. 15 These negative declaration letters certified that there are no sources located in the Northern Virginia Volatile Organic Compound Emissions Control Area subject to the RACT VOC CTGs for fiberglass boat manufacturing materials and auto and light-duty truck assembly coatings and no sources located in the Commonwealth of Virginia subject to the RACT VOC CTGs for large appliance coatings, paper, film, and foil coatings, metal furniture coatings, flat wood paneling coatings, and flexible packaging printing materials. Virginia has recently re-certified that there are no sources located in the relevant Control Area subject to these same CTGs as part of its December 12, 2017 SIP submission addressing Virginia's RACT obligations under the 2008 ozone NAAQS. 16 In addition, EPA consulted the latest version of EPA's National Emissions Inventory (2014 NEI v2) and confirmed that no facilities subject to these CTGs were found in Virginia's portion of the Washington Area.

Comment 3: Earthjustice stated that EPA cannot approve the proposed maintenance plan because the contingency measures do not include implementation of “all measures with respect to the control of the air pollutant concerned which were contained in the State implementation plan for the area before redesignation of the area.” See CAA section 175A(d).

EPA Response: The District, Maryland, and Virginia are not moving any of their existing SIP-approved measures into the contingency plan. These measures remain part of their active SIPs. Therefore, these measures are not included as part of the contingency plan in the maintenance plan for the Washington Area. The District's, Maryland's, and Virginia's maintenance plan states, “This maintenance plan includes a commitment to continue to enforce all applicable requirements of past revisions to the state implementation plan (SIP) after the ozone nonattainment area is redesignated to attainment.”  17 On February 26, 2019, February 27, 2019, and February 6, 2019, EPA received letters from the District, Maryland, and Virginia, respectively, clarifying that this statement in the maintenance plan was intended to mean that, in accordance with section 175A(d) of the CAA, the District, Maryland, and Virginia will implement all measures, with respect to the control of ozone, that were contained in the SIPs for the Washington Area prior to redesignation of the Area to attainment and that any measures currently in the District's, Maryland's, and Virginia's SIPs, with respect to the control of ozone, will be retained as contingency measures for the 20-year maintenance period following redesignation of the Washington Area to attainment for the 2008 ozone NAAQS. 18 Therefore, EPA finds that the maintenance plan for the Washington Area satisfies the requirement of CAA section 175A(d) referenced in Earthjustice's comment.

Comment 4: Earthjustice commented that EPA cannot approve the maintenance plan because EPA proposed to approve “a commitment to adopt contingency measures to address violations” as a contingency measure. Earthjustice stated that EPA cannot approve the contingency measures in the maintenance plan because the commitment to adopt contingency measures to address violations is a “promise to do later what's required now” by CAA section 175A(d).

EPA Response: Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. States are not required to have fully-adopted contingency measures in their SIP in order for the maintenance plan to be approved. 19 Contingency measures are adopted and implemented by a State if a violation of the NAAQS occurs in the maintenance area or if a triggering event (also referred to as an “indicator”) identified by the State in its maintenance plan occurs. 20 The District's, Maryland's, and Virginia's joint maintenance plan identifies specific measures that EPA has found to be appropriate to use as contingency measures. 21 In addition to these measures, the District, Maryland, and Virginia commit in their maintenance plan to adopt, as SIP revisions, additional contingency measures if necessary to address a violation of the 2008 ozone NAAQS in the Washington Area. This commitment strengthens the contingency measures in the maintenance plan by providing assurance that if a violation of the 2008 ozone NAAQS occurs in the Washington Area that may not be responsive using the existing contingency measures in the maintenance plan, the District, Maryland, and Virginia can assess the specific cause of the violation and adopt appropriate, tailored contingency measures as necessary. The contingency measures included in the District's, Maryland's, and Virginia's maintenance plan satisfy the requirements for contingency measures in CAA section 175A as well as the Calcagni memorandum. 22

Comment 5: Earthjustice commented that if EPA approves the proposed redesignation, EPA “should make clear in the final action that the redesignation does not affect obligations that apply via the Washington nonattainment area's severe classification under the 1-hour ozone NAAQS.”

EPA Response: EPA's approval of Maryland's and Virginia's redesignation requests for the Washington Area for the 2008 ozone NAAQS and the associated maintenance plan submitted by the District, Maryland, and Virginia pertains to the 2008 ozone NAAQS and the anti-backsliding requirements for the 1997 ozone NAAQS and does not affect obligations that apply under 40 CFR 51.905(a) for the 1-hour ozone NAAQS. South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 1151 (D.C. Cir. 2018).

Comment 6: Earthjustice stated that EPA should not finalize the August 8, 2018 NPRM nor redesignate the Washington Area to attainment for the 2008 ozone NAAQS.

EPA Response: EPA disagrees with Earthjustice's comment that EPA should not finalize the August 8, 2018 NPRM. EPA finds that Maryland's and Virginia's portions of the Washington Area satisfy the requirements for redesignation under CAA section 107(d)(3)(E) for the 2008 ozone NAAQS. EPA also still finds that the joint maintenance plan submitted by the District, Maryland, and Virginia for the Washington Area satisfies the requirements of CAA section 175A. Therefore, EPA is approving the requests from Maryland and Virginia to redesignate to attainment their respective portions of the Washington Area for the 2008 ozone NAAQS as well as the joint maintenance plan submitted by the District, Maryland, and Virginia.

EPA is approving the requests from Maryland and Virginia to redesignate to attainment their respective portions of the Washington Area for the 2008 ozone NAAQS. EPA is not at this time approving the redesignation request from the District but will address the District's redesignation request in a separate rulemaking action. EPA is also approving, as a revision to the District's, Maryland's, and Virginia's SIPs, the joint maintenance plan submitted by the District, Maryland, and Virginia. The joint maintenance plan demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the Washington Area and includes 2014, 2025, and 2030 MVEBs for NO X and VOCs for the 2008 ozone NAAQS. Finally, EPA has found adequate and is approving these 2014, 2025, and 2030 NO X and VOC MVEBs for the Washington Area.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the air quality designation status of geographical areas and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866.

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 14, 2019. 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 approving Maryland's and Virginia's redesignation requests for their respective portions of the Washington Area as well as the District's, Maryland's, and Virginia's maintenance plan for the Washington Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Title 40 CFR parts 52 and 81 are amended as follows:

The EPA approved North Dakota's UIC program as meeting the requirements for primary enforcement responsibility (primacy) for Class I, III, IV, and V injection wells, under section 1422 of the Safe Drinking Water Act (SDWA), on September 21, 1984. The State has revised its UIC Class I, III, IV, and V program statutes and regulations to transfer this authority from the North Dakota Department of Health to the North Dakota Department of Environmental Quality.

These regulations are being promulgated under authority of sections 1422 and 1450 of the SDWA, 42 U.S.C. 300h-1 and 300j-9.

As required by section 1421 of the SDWA, the EPA promulgated minimum requirements in the Code of Federal Regulations (CFR) at 40 CFR part 145 for effective state UIC programs to prevent underground injection activities that endanger underground sources of drinking water (USDWs). Under section 1422 of the SDWA, once the EPA approves a state UIC program, the state has primary enforcement responsibility for the UIC program. A state may revise its UIC program as provided under 40 CFR 145.32(a) and by following the procedures described under 40 CFR 145.32(b), which require the state to submit a modified program description, an Attorney General's statement, a Memorandum of Agreement, or other such documentation as the EPA determines to be necessary under the circumstances (40 CFR 145.32(b)(1)). States with approved programs are required to notify the EPA whenever they propose to transfer all or part of the approved state agency to any other state agency and to identify any new division of responsibilities among the agencies involved. Organizational charts required in the state's original primacy approval package must be revised and resubmitted. The new agency is not authorized to administer the program until approval by the Administrator (40 CFR 145.32(c)).

All revisions to the UIC program are federally enforceable as of the effective date of the EPA's approval of the respective revision and 40 CFR part 147 codification.

In the EPA's announcement of its proposed rule in the Federal Register on December 4, 2018, Table 1 in the proposed amendment to 40 CFR part 147 indicated a State effective date of 2018 for the revisions to the North Dakota Century Code and North Dakota Administrative Code. In the final rule, the EPA is revising § 147.1751(a) to identify 2019 as the effective date of the statute and regulations that North Dakota submitted to the EPA in its program revision submission. The revised statute specified in § 147.1751(a) was enacted in 2018 and will be fully effective in April 2019. The revised regulations in § 147.1751(a) were promulgated in 2018 and became effective on January 1, 2019.

Consistent with the EPA Guidance 34, Guidance for Review and Approval of State Underground Injection Control (UIC) Programs and Revisions to Approved State Programs, the EPA considers state-initiated program revisions to transfer all or part of any program from the approved authority to another state agency as substantial program revisions. Under the EPA's regulations, this means that there was an opportunity for public comment and to request a public hearing (40 CFR 145.32(b)(2)).

The EPA's approval of North Dakota's application to transfer its SDWA UIC Class I, III, IV, and V primary enforcement authority from the North Dakota Department of Health to the North Dakota Department of Environmental Quality does not extend to Indian lands. Pursuant to the EPA's UIC regulations at 40 CFR 144.3, Indian lands “means `Indian country' as defined in 18 U.S.C. 1151.” As defined in 18 U.S.C. 1151, Indian country generally includes lands within the exterior boundaries of the following Indian reservations located within North Dakota: The Fort Berthold Indian Reservation, the Spirit Lake Reservation, the Standing Rock Sioux Reservation, and the Turtle Mountain Reservation; any land held in trust by the United States for an Indian tribe; and any other areas that are Indian country within the meaning of 18 U.S.C. 1151. The EPA, or eligible Indian tribes, as appropriate, will retain responsibilities under the SDWA UIC program for Class I, III, IV, and V injection wells in Indian country.

On September 18, 2018, the EPA received a complete program revision package from the State of North Dakota, requesting approval of its revised UIC regulations for Class I, III, IV, and V injection wells, to transfer primary enforcement authority from the North Dakota Department of Health to the North Dakota Department of Environmental Quality. The EPA has determined that the application contains all the required elements.

The UIC program revision package from the State of North Dakota includes revised versions of: (1) The description of the State's UIC program (40 CFR 145.23); (2) copies of all applicable State statutes, regulations, and forms (40 CFR 145.22(a)(5)); (3) the Attorney General's statement that the State has adequate legal authority to carry out the program described and to meet the requirements of 40 CFR part 145; and (4) the Memorandum of Agreement between the State of North Dakota and the EPA's Region 8 Administrator (40 CFR 145.25).

On April 12, 2018, the North Dakota Department of Environmental Quality provided public notice of its intent to amend and adopt North Dakota's 1422 Underground Injection Control Rules. The Department published the notice in 52 North Dakota newspapers. The Department accepted written comments on the proposed rule changes between April 12, 2018 and May 31, 2018. The Department received no comments. The Department held a public hearing regarding the UIC rules on March 21, 2018. There were no attendees.

On December 4, 2018, the EPA published a public notice in the Bismarck Tribune announcing the Agency's proposed approval, request for public comment, and notice of a public hearing to be held, if requested within 30 days, on January 8, 2019, and posted it on the EPA Region 8's website at: https://www.epa.gov/uic/underground-injection-control-epa-region-8-co-mt-nd-sd-ut-and-wy.

The EPA received three comments in response to the Agency's proposed rule. Further information regarding the comments can be found in the docket for this action under Docket ID No. EPA-HQ-OW-2018-0669. The EPA did not receive a request for a public hearing; as a result, the EPA announced that no public hearing would be held.

In this final rule, the EPA is approving the State of North Dakota's application to transfer its Class I, III, IV, and V primary enforcement authority from the North Dakota Department of Health to the North Dakota Department of Environmental Quality and to make conforming changes to its regulations to reflect such transfer. Regulations under 40 CFR part 147 set forth the applicable UIC programs for each of the states. This rule updates 40 CFR part 147, subpart JJ, to reflect the transfer of authority.

The supporting documents for this final rule are part of the public record in the EPA's Docket No. EPA-HQ-OW-2018-0669. This action amends 40 CFR part 147, subpart JJ, to incorporate by reference the revised EPA-approved State statutes and regulations. The EPA will continue to administer its UIC program for Class I, III, IV, and V injection wells in Indian country.

The EPA will continue to oversee the State of North Dakota's administration of UIC Class I, III, IV, V, and VI programs as authorized under the SDWA. Part of the EPA's oversight responsibility will require State quarterly reports of non-compliance and annual UIC performance reports pursuant to 40 CFR 144.8. The Memorandum of Agreement between the EPA and the State of North Dakota, signed by the Regional Administrator on September 18, 2018, provides the EPA with the opportunity to review and comment on all draft permits.

In this rule, the EPA is finalizing the Federal regulatory text that incorporates by reference the federally authorized North Dakota UIC program for Class I, III, IV, and V injection wells, except those in Indian country. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the North Dakota statutes and regulations described in the amendments to 40 CFR part 147 set forth below. The EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the U.S. Environmental Protection Agency, Region 8, Library 2nd Floor, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA is revising the incorporation by reference at 40 CFR 147.1751 with “EPA-Approved North Dakota SDWA § 1422 Underground Injection Control Program Statutes and Regulations for Well Classes I, III, IV, V and VI,” dated January 2019.

The EPA is also revising table 1 to paragraph (a) of § 147.1751, which lists the EPA-approved North Dakota statutes and regulations contained in the material incorporated by reference at 40 CFR 147.1751.

This action is not a significant regulatory action and therefore the EPA did not submit it to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose any new information collection burden under the PRA. The OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0042. Reporting or record-keeping requirements will be based on the State of North Dakota's UIC regulations, and the State of North Dakota is not subject to the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This rule does not impose any requirements on small entities as this rule approves the State of North Dakota's UIC program revisions. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. The EPA's approval of the State of North Dakota's program revisions does not constitute a Federal mandate because there is no requirement that a state establish UIC regulatory programs and because the program is a state rather than a Federal program.

This action does not have federalism implications. 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.

This action does not have tribal implications as specified in Executive Order 13175. This action contains no Federal mandates for tribal governments and does not impose any enforceable duties on tribal governments. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it approves the State of North Dakota's UIC program revisions.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA has determined that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action simply approves North Dakota's transfer of its primary enforcement authority for its Class I, III, IV, and V wells, pursuant to which the State of North Dakota will be implementing and enforcing a State UIC regulatory program that is as stringent as the existing Federal program.

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).

For the reasons set out in the preamble, the Environmental Protection Agency is amending 40 CFR part 147 as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

This document announces that, on January 28, 2019, OMB approved, for a period of three years, the information collection relating to the rural call completion registry requirements for intermediate providers contained in the Commission's Order, FCC 18-120, published at 83 FR 47296, September 19, 2018. The OMB Control Number is 3060-1259. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-1259, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on January 28, 2019, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 64. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1259.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1259.

OMB Approval Date: January 28, 2019.

OMB Expiration Date: January 31, 2022.

Title: Rural Call Completion, WC Docket No. 13-39.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 168 respondents; 168 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: Third-party disclosure; one-time reporting requirement; on occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection is contained in sections 1, 4(i), 201(b), 202(a), 217, and 262 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201(b), 202(a), 217, and 262.

Total Annual Burden: 168 hours.

Total Annual Cost: No Cost.

Nature and Extent of Confidentiality: The Commission is not requesting that the respondents submit confidential information to the FCC. Respondents may, however, request confidential treatment for information they believe to be confidential under 47 CFR 0.459 of the Commission's rules.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: The Improving Rural Call Quality and Reliability Act of 2017 (RCC Act), Public Law 115-129, requires the Commission to establish a registry for intermediate providers and requires intermediate providers to register with the Commission before offering to transmit covered voice communications. The information collected through this information collection will be used to implement Congress's direction to the Commission to establish an intermediate provider registry.

This is a summary of the Commission's Report and Order, FCC 19-17, in MB Docket Nos. 18-63, 17-105, adopted on March 11, 2019, and released on March 12, 2019. The complete text of this document is available electronically via the search function on the FCC's Electronic Document Management System (EDOCS) web page at https://apps.fcc.gov/edocs_public/. The document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. Introduction: In this Report and Order, the Commission adopts streamlined procedures for reauthorizing television satellite stations when such stations are assigned or transferred. The revised process will reduce the costs and burdens currently associated with transferring existing satellite stations. In a notice of proposed rulemaking (NPRM), 83 FR 15531 (April 11, 2018), the Commission proposed to streamline this reauthorization process in order to eliminate potentially needless regulatory expense and delay. In response, commenters unanimously agree that the reauthorization process is unnecessarily costly and burdensome for both the station owner and the Commission. The Commission's action to streamline this process stems from its initiative to modernize its media regulations, and it furthers those efforts by reducing unnecessary requirements that can impede competition and innovation in the media marketplace.

2. Background: Television satellite stations are full-power terrestrial broadcast stations authorized under part 73 of the Commission's rules. They generally retransmit some or all of the programming of another full-power television station, known as the parent station, which typically is commonly owned or operated with the satellite station. The Commission authorized television satellite stations initially in sparsely populated areas with insufficient economic bases to support full-service stations and then later in larger markets when a proposed satellite could not viably operate as a full-service station. Television satellite stations are excepted from the Commission's multiple ownership limits, most significantly the Local Television Ownership Rule. The ownership exception is set forth in Note 5 of 47 CFR 73.3555. In order for the exception to apply, a television station must obtain authorization from the Commission to operate as a satellite. If a licensee of a satellite station seeks to assign or transfer the license to a new owner that wishes to continue operating the station as a satellite, the Commission's current procedures require the applicants to the transaction to make the same showing that is required for initial satellite authorization. This showing is required in response to a question concerning compliance with the Commission's multiple ownership rules at Application for Consent to Assignment of Broadcast Station Construction Permit or License, FCC Form 314, Section III, Question 6.b., and at Application for Consent to Transfer Control of Entity Holding Broadcast Station Construction Permit or License, FCC Form 315, Section IV, Question 8.b.

3. In 1991, the Commission revised the standards for television stations seeking to obtain satellite status and adopted a rebuttable presumption that stations would qualify for satellite status if: (1) There was no “City Grade” contour overlap between the parent and the satellite station; (2) the satellite station served an underserved area; and (3) no alternative operator was ready and able to construct or to purchase and operate the satellite station as a full-service station. The Commission established detailed evidentiary standards for meeting the second and third criteria. If an applicant did not qualify for the presumption, the Commission evaluated the proposal on an ad hoc basis and granted the application if there were compelling circumstances warranting approval. The Commission stipulated that owners of authorized satellite stations seeking to assign or transfer the station were required to demonstrate that the conditions under which the station had been accorded satellite status continued to exist at the time of the assignment or transfer.

4. The transition to digital television service in 2009 rendered ineffectual the first prong of the Commission's presumptive standard as there is no precise digital counterpart to a station's analog City Grade contour. Accordingly, in its 2010/2014 media ownership review, the Commission clarified that, consistent with case law developed after the transition, it would evaluate all requests for new and continued satellite status on an ad hoc basis. As a practical matter, the second and third prongs of the Commission's presumptive standard continued to serve as guidelines under the ad hoc review. This shift in approach did not change the burden of proof for applicants seeking either an initial satellite station authorization or the continuation of existing satellite status in the transfer or assignment context.

5. In May 2017, the Commission launched an initiative to review its media regulations and eliminate or modify rules that are outdated, unnecessary, or unduly burdensome. That review prompted the suggestion from broadcasters that the Commission streamline the process for demonstrating the continued eligibility of a television satellite station in connection with an assignment or transfer of such a station. Based on those suggestions, the Commission proposed to revise the steps required for reauthorization of satellite status in the context of assignments and transfers and sought comment on all aspects of its proposal. Several broadcasters filed supporting comments, in which they assert that a streamlined process would reduce unnecessary costs and burdens for broadcasters, conserve Commission resources, and benefit consumers in underserved areas by encouraging investment in satellite stations. Although the Commission contemplated limiting its proposal to satellite stations sold in combination with their previously approved parent stations, commenters argue that any revised procedures also should apply when the assignment or transfer results in the satellite station combining with a different parent station. No comments were filed opposing the Commission's proposal to streamline the reauthorization process.

6. Discussion: We adopt streamlined procedures for reauthorizing satellite status when the license of a television satellite station is assigned or transferred. Specifically, we allow the applicants to the transaction to use streamlined procedures in those situations where there has been no material change in the circumstances that warranted the grant of a station's existing authorization and upon submission of a complete copy of the most recent written Commission decision granting the satellite exception. For reasons explained below, we allow the applicants to use these streamlined procedures regardless of whether the satellite station that is the subject of the assignment or transfer application maintains the same parent station or becomes associated with a different parent station.

7. This streamlined process will avoid the unnecessary expenditure of resources by both applicants and the Commission in situations where the facts and circumstances surrounding the station have not changed materially. The record demonstrates that the evidentiary showings currently required in connection with satellite station reauthorization often involve time and expense for both applicants and Commission staff. Commenters attest that it can cost several thousand dollars and many man-hours to prepare a reauthorization request, which typically can involve the services of lawyers, economists, engineers, and/or brokers. We conclude that these regulatory burdens are unwarranted in the absence of material change. Indeed, the Commission has no record of having ever denied a reauthorization request. We note further that declining populations in many rural areas make it likely that most satellite stations will continue to meet the reauthorization criteria. The revisions we adopt will reduce the burden on applicants but at the same time will not alter or limit the public's opportunity to object to a reauthorization request, as the procedures for doing so will remain unchanged.

8. Notably, no commenter has presented any argument or evidence suggesting that our action will harm the public interest or contravene any Commission policy goals. To the contrary, the record enumerates several likely public interest benefits that should produce a positive outcome for broadcasters, consumers, and the Commission. The cost-savings to broadcasters will reduce their regulatory expenses and allow them to invest their resources more productively. In addition, easing the transfer of satellite stations, and thereby promoting their viability, will benefit consumers in remote and underserved areas who are beyond the reach of the parent station's signal. Finally, a streamlined review process will enable the Commission to allocate its own resources more efficiently.

9. As proposed in the NPRM, we permit applicants to a transaction involving a satellite station to avail themselves of our streamlined reauthorization procedures if they satisfy two conditions. First, the assignment or transfer application must include a certification by both parties to the transaction that the underlying circumstances upon which the Commission relied in granting the current satellite authorization have not changed materially since the issuance of the most recent satellite authorization. Second, the assignment or transfer application must include a complete copy of the most recent written Commission decision ( e.g., Letter Order) granting the satellite exception. If the applicants cannot meet one of these conditions because there has a been a material change in circumstances or because they cannot locate the Commission's most recent written decision, then the streamlined procedures will not apply, and the applicants may apply for reauthorization in the same way as before with evidentiary showings that meet our ad hoc review criteria. If the Commission has issued a written satellite decision but the decision does not specify the facts and circumstances surrounding the grant or does not provide sufficient information from which to discern the Commission's basis for the grant, then the applicants should submit a standard reauthorization request instead of a streamlined request. The applicants may not avail themselves of the new streamlined procedures if the Commission did not identify in sufficient detail the facts and circumstances upon which it relied in approving the existing satellite exception because the constancy of those facts and circumstances would not be able to be certified or verified.

10. Procedurally, applicants may submit the required materials—both their certification and copy of the Commission's most recent written decision granting the previous satellite exception—as an exhibit to the relevant Commission form and in particular the question on the form that pertains to compliance with the Commission's multiple ownership rules ( i.e., Application for Consent to Assignment of Broadcast Station Construction Permit or License, FCC Form 314, Section III, Question 6.b., or Application for Consent to Transfer Control of Entity Holding Broadcast Station Construction Permit or License, FCC Form 315, Section IV, Question 8.b.) The certification, for which both parties will be accountable, may entail a general statement that there has been no material change in the underlying circumstances upon which the Commission relied in granting the satellite station's most recent satellite exception. We do not require applicants to attest to a set of more specific facts as the certification, by its very terms, encapsulates the facts and circumstances existing at the time of the prior grant of the satellite exception and avows that those facts remain true at the time of assignment or transfer. We emphasize, however, that materiality certifications should be informed by the specific factors relied upon by the applicants and the Commission in the prior grant. In addition, applicants are welcome to add any explanatory details they consider helpful.

11. Furthermore, we decline to restrict the term “material change” to specific, pre-defined situations. In particular, we reject the suggestion that the Commission consider all changes to be non-material except when: (1) A satellite station seeks to modify its facilities voluntarily such that its service contour would exceed 20 percent of the prior overlap with the parent station; (2) the seller has received a bona fide offer within the preceding three years to purchase and operate the satellite as a standalone station; or (3) information submitted to support an alternative showing has changed fundamentally. We fear such an approach might not be appropriate for all reauthorization requests. We believe that the circumstances of each case should guide the determination of whether there has been a material change in the underlying circumstances upon which the Commission originally granted the existing satellite authorization.

12. We conclude that requiring applicants to certify that no material changes have occurred and to attach the Commission's most recent written satellite authorization will provide sufficient information to allow Commission staff to determine if continued satellite status is appropriate and to enable interested parties to decide whether to object to a reauthorization request. Commission staff can ask the applicants to provide additional information if needed to reach a finding. As we explained in the NPRM, objections may be filed as part of the existing petition to deny and informal comment process applicable to all proposed license assignments and transfers of control. The applicants will have the opportunity to respond to an objection within the normal pleading cycle, and the Commission then will have a record upon which to make a determination. If an objection is filed, the Commission or its staff will issue a written reauthorization decision explaining its reasoning. Absent an objection, and if the Commission approves the transaction simply by issuing an FCC Form 732 rather than by rendering a letter decision, the Commission will not issue a separate written ruling addressing the reauthorization request. In those cases, we will follow commenters' suggestion to memorialize the reauthorization decision in the “Special Conditions” section of the FCC Form 732 approving the transaction. We will include a brief statement that the reauthorization grant is based upon both parties' certification and may add any necessary or helpful explanatory details, such as a cross-reference to the prior grant of the satellite exception upon which the applicants rely. When satellite stations that have been reauthorized in this manner are assigned or transferred in the future, the applicants to those transactions should attach the most recent written decision the Commission or staff issued that specifies the operative facts and circumstances that provided the basis for approval of satellite status. The applicants also should provide the dates of any intervening Commission reauthorizations memorialized on FCC Form 732 approvals, but the FCC Form 732 itself shall not constitute a decision upon which an applicant may rely in requesting streamlined reauthorization. If there has been no material change in the underlying circumstances supporting the Commission's or staff's most recent written decision, then that decision remains relevant and useful even if it also was used to support previous reauthorizations and may be many years old.

13. We adopt these streamlined procedures regardless of whether the identity of the parent station changes as a result of the transaction. In the NPRM, we sought comment on whether we should restrict any new streamlined reauthorization procedures to those transactions that involve the assignment or transfer of control of a satellite station in combination with its previously approved parent station. Commenters contend that our proposed streamlined procedures also should apply when the satellite station combines with a different parent station as a result of the transaction. They assert that the Commission determines satellite designations based on the conditions and characteristics related to the satellite station, not the parent station, and so the identity of the parent station should not affect the reauthorization decision. The Commission never has denied a satellite reauthorization request when the underlying transaction resulted in a different parent station, and interested parties would be able to raise any concerns about a proposed new combination. Our ad hoc review of reauthorization requests is guided by considerations of whether the satellite station serves an underserved area and whether it could survive as a standalone station. Because a reauthorization review focuses on the health and viability of the satellite station and provides ample opportunity for public comment, we agree with commenters that our streamlined procedures should apply regardless of whether the parent station changes or stays the same post-transaction.

14. We conclude that this action to streamline the reauthorization process for television satellite stations will benefit broadcasters, consumers, and the Commission. Further, removing unnecessary constraints on the transferability of satellite stations is consistent with our efforts to modernize our regulations.

15. Final Regulatory Flexibility Act Certification. The Regulatory Flexibility Act of 1980, 5 U.S.C. 604, as amended (RFA), requires that a final regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” See 5 U.S.C. 605(b). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” See 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. See 5 U.S.C. 601(3). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

16. In this Report and Order, the Commission adopts streamlined procedures for reauthorizing television satellite stations when they are assigned or transferred. The revisions stem from an initiative the Commission launched in May 2017 to modernize its media regulations. Commenters in the proceeding assert that the Commission should streamline the process for demonstrating that a television satellite station remains eligible for satellite status in connection with an assignment or transfer of the station because, they contend, the current process is lengthy, costly, unnecessary, and serves no rational purpose. Indeed, the time and expense of filing satellite reauthorization requests may discourage potential purchasers of satellite stations, which typically are in rural and economically depressed areas and often in need of investment. The revised procedures are intended to reduce unnecessary regulation and regulatory burdens that can impede competition and innovation in the media marketplace.

17. Specifically, if there has been no material change in the underlying circumstances since the Commission granted the current satellite authorization, the parties to the proposed transaction can certify to that fact instead of having to make the same type of showing required for the station's initial satellite authorization. In addition, a complete copy of the written Commission decision granting the current satellite exception must be provided with the assignment or transfer application.

18. As transactions involving television satellite stations usually comprise a very small percentage of the total number of television transactions processed by the Commission and originate from a similarly small segment of the overall industry, the number of small entities impacted will not be substantial for RFA purposes. Therefore, the Commission certifies that the rule changes adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Report and Order, including a copy of this Final Regulatory Flexibility Act Certification, to the Chief Counsel for Advocacy of the SBA. This final certification also will be published in the Federal Register . See 5 U.S.C. 605(b).

19. Paperwork Reduction Act. The Office of Management and Budget (OMB) approved non-substantive changes for the information collection requirements contained in this rulemaking on March 28, 2019 under OMB control number 3060-0031. See 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 previously sought specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” See 44 U.S.C. 3506(c)(4).

20. Congressional Review Act. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A).

21. Ordering Clauses: Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), 303(r), 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 309, and 310, this Report and Order is adopted .

22. It is further ordered that this Report and Order, including the revisions to title 47 of the Code of Federal Regulations shown below, shall be effective 30 days after publication in the Federal Register , which shall be preceded by OMB approval of the modified information collection requirements adopted herein.

23. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Act Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

24. It is further ordered that the Commission shall send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

25. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 18-63 shall be terminated and its docket closed.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

I. Background

The HUDAR is codified at title 48, chapter 24 of the Code of Federal Regulations. HUD revises the HUDAR from time to time. The revision prior to this one was published on March 15, 2016 (81 FR 13747).

This final rule follows a proposed rule that was published at 83 FR 15101 (April 9, 2018). The rule proposed, among other things, a change in terminology from “Government Technical Representative” to “Contracting Officer's Representative,” abbreviated COR. The rule also proposed to codify previously used agency-specific clauses entitled “Level of Effort and Fee Payment” and “Labor Categories, Requirements, and Estimated Level of Effort.” A clause was proposed to address access to controlled unclassified information, which is defined as any information the disclosure of which would harm the national interest, the conduct of Federal programs, or the privacy to which individuals are entitled under the Privacy Act; the clause requires offerors with whom the government shares this kind of information to execute a nondisclosure agreement. The proposed rule also included a clause requiring contractors to report on the status of Personal Identity Verification (PIV) cards on a quarterly basis. A number of other minor revisions were made. Please refer to the proposed rule (83 FR 15101) for details.

The public comment period opened on publication and closed on June 8, 2018. No relevant public comments were received.

At this final rule stage, HUD adopts the proposed rule without change.

The information collection requirements contained in this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2535-0091. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any Federal mandate on any state, local, or tribal government or the private sector within the meaning of UMRA.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule makes technical changes to existing contracting procedures and does not make any major changes that would significantly impact businesses. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments regarding less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Accordingly, for the reasons discussed in the preamble, HUD amends 48 CFR parts 2402, 2416, 2437, 2442, and 2452 as follows:

On January 30, 2017, the President issued Executive Order 13771, which requires, when an agency proposes a new significant regulation, it must identify at least two existing regulations to repeal. FRA reviewed the Railroad Noise Emission Compliance Regulations in 49 CFR part 210  1 (“part 210”) and identified for potential elimination the requirement that railroads display a permanent badge or tag in the cabs of their locomotives certifying the locomotives comply with locomotive noise emission standards. Eliminating this requirement will reduce economic burdens on the rail industry without adversely impacting compliance with the standards. Therefore, in this final rule, FRA eliminates the badge or tag requirement. FRA is making this rule effective upon its publication, as this rule relieves a regulatory burden, consistent with 5 U.S.C. 553(d)(1).

FRA estimates there will be no cost burden associated with this final rule. In fact, the elimination of the requirement to install a badge or tag in locomotives will save railroads the cost of labor to install the badge or tag, and the cost of the badge or tag itself. Over a 20-year period, FRA estimates railroads will accrue a net present value of $1 million using a 7 percent discount rate.

Pursuant to the Noise Control Act of 1972 (86 Stat. 1234, Pub. L. 92-574), the Environmental Protection Agency (EPA) promulgated standards in 40 CFR part 201 to limit the noise emitted by railroad locomotives, cars, and other equipment. In consultation with EPA, FRA developed regulations in 49 CFR part 210 to ensure compliance with the noise emission standards. See 41 FR 49183, 49183-84 (Nov. 8, 1976).

Part 210 requires railroads to certify that locomotives built after December 31, 1979, comply with locomotive noise emission standards. Under § 210.27(d), railroads must attach a permanent badge or tag in the cab of the locomotive displaying the results of the certification test (including the method, date, and location of the test, and the sound level reading obtained during the test).

In 2014, the Association of American Railroads (AAR) requested FRA eliminate the requirement to display the certification of compliance with locomotive noise emission regulations in the locomotive, in its comments on a separate proposed rule concerning stenciling requirements for window glazing. AAR Comment, November 25, 2014, Docket No. FRA-2012-0103. AAR noted that when FRA added § 210.27(d) in 1983, few locomotives had been tested and certified to comply with the noise emission standards. AAR contended that instead of testing individual locomotives for compliance with the noise emission standards, railroads currently test locomotives by model. Locomotives are built to the manufacturer's written specifications and those written specifications detail the technical features of a locomotive's particular model, including its certification under § 210.27. Documentation of that testing is maintained by the railroads as a usual and customary practice, and may be consulted if FRA has a doubt about whether a locomotive has been tested for compliance with locomotive noise emission regulations.

FRA declined to eliminate the display requirement for noise certification at that time because it was beyond the scope of the window-glazing rulemaking. However, FRA said it would consider the merits of AAR's request and evaluate how to address the issue in the future. 81 FR 6775, 6778 (Feb. 9, 2016).

FRA continually reviews and revises its regulations to ensure the regulatory burden on the rail industry is not excessive, clarify the application of existing requirements and remove requirements no longer necessary, and keep pace with emerging technology, changing operational realities, and safety concerns. In addition, on January 30, 2017, the President issued Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), which requires agencies to identify at least two existing regulations to repeal when they propose a new significant regulation. Because the badge or tag requirement is unnecessary for FRA enforcement of the noise testing requirements, FRA determined repealing § 210.27(d) would reduce the burden on the rail industry without adversely impacting FRA's ability to ensure compliance with locomotive noise emission regulations. Accordingly, on July 16, 2018 (83 FR 32826), FRA published a notice of proposed rulemaking (NPRM) proposing to eliminate the requirement for locomotives to display a permanent badge or tag certifying compliance with noise emission standards.

The NPRM solicited written comments from the public under the Administrative Procedure Act (5 U.S.C. 553). By the close of the comment period on September 14, 2018, FRA received one comment, a joint comment from AAR and the American Short Line and Regional Railroad Association (ASLRRA).

In the comment, AAR and ASLRRA stated railroads have been advocating for the removal of the certification display requirement since 2011. AAR and ASLRRA explained the certification display requirement is no longer necessary because the overwhelming majority of locomotives have already been tested by the manufacturers on a model-by-model basis. Accordingly, AAR and ASLRRA supported the NPRM's proposal to eliminate the certification display requirement.

FRA received no public comments conveying a need to change the scope or substance of the proposed rule. Therefore, in this final rule FRA eliminates the requirement for locomotives to display a permanent badge or tag certifying compliance with noise emission standards.

Section 210.27 requires railroads to certify that their locomotives comply with noise emission standards. Specifically, paragraph (a) requires railroads to certify that locomotives built after December 31, 1979, comply with the noise emission standards. Paragraph (b) provides railroads must determine certification for each locomotive model by load cell testing or passby testing. Paragraph (c) states if railroads use passby testing, they should conduct the test with the locomotive operating at maximum rated horsepower output. Under paragraph (d), railroads must attach a permanent badge or tag in the cab of the locomotive to display the results of the certification test.

FRA determined this permanent badge or tag is no longer necessary, and this final rule removes paragraph (d) in its entirety. FRA notes although railroads no longer need to display a badge or tag in the locomotive cab, the locomotives still need to be tested and certified to comply with the noise emission standards, as required under paragraphs (a) through (c) of this section.

FRA evaluated this final rule consistent with existing policies and procedures, and determined it to be non-significant under Executive Order 12866 as well as DOT policies and procedures (44 FR 11034 (February 26, 1979)). This final rule is considered an Executive Order 13771 deregulatory action. Details on the estimated cost savings of the rule can be found in the rule's economic analysis.

FRA is eliminating the requirement that locomotives display a permanent badge or tag to demonstrate they have been certified to comply with noise emission standards. (The permanent badge or tag will hereafter be referred to as a “badge” in this analysis.) A badge is typically a metal plate installed inside the cab of the locomotive. Railroads will benefit from this final rule because a badge had been required in all locomotives. Any railroad purchasing new locomotives will not be required to display a badge, therefore saving it money. Also, badges will no longer need to be replaced when locomotives are overhauled.

FRA estimates there will be no cost burden associated with this final rule. The elimination of the requirement to install a badge in locomotives will save railroads the cost of labor to install the badge, and the cost of the badge itself. Over a 20-year period, this analysis finds $1 million in present value cost savings, estimated using a 7 percent discount rate. FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this rule.

The Regulatory Flexibility Act (RFA) (94 Stat. 1164, Pub. L. 96-354), as amended, and codified as amended at 5 U.S.C. 601-612, and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking), require agency review of proposed and final rules to assess their impact on “small entities” for purposes of the RFA. An agency must prepare a regulatory flexibility analysis unless it determines and certifies a rule is not expected to have a significant economic impact on a substantial number of small entities. FRA has determined this final rule will not have a significant economic impact on a substantial number of small entities.

Federal agencies may adopt their own size standards for small entities, in consultation with the Small Business Administration and in conjunction with public comment. FRA published a final statement of agency policy that formally designates “small entities” or “small businesses” as being railroads, contractors, and hazardous materials shippers with the revenue of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 2003), codified at 49 CFR part 209, appendix C. FRA is using this definition for this rulemaking.

FRA estimates there are 704 Class III railroads, most of which will be affected by this final rule. Most Class III railroads do not purchase new locomotives; rather, they purchase used locomotives from Class I and Class II railroads. Therefore, any badges required will have already been installed when obtained from the larger railroad. If a small railroad did purchase a new locomotive, however, they would save money because the badge would no longer be required. Small railroads will also benefit since they will not need to replace badges as they age or when locomotives are overhauled. Therefore, any impact on small railroads by this final regulation will likely be small and entirely beneficial. Thus, pursuant to the RFA, 5 U.S.C. 601(b), the FRA Administrator hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The information collection requirements in this final rule are being submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The sections that contain the current information collection requirements and the estimated time to fulfill each requirement are as follows:

All estimates include the time for reviewing instructions, searching existing data sources, gathering or maintaining the needed data, and reviewing the information.

For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Collection Clearance Officer, Office of Railroad Safety, FRA, at 202-493-6292, or Ms. Kimberly Toone, Information Collection Clearance Officer, Office of Information Technology, FRA, at 202-493-6132.

Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan at Robert.Brogan@dot.gov, or to Ms. Toone at Kim.Toone@dot.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The current OMB control number for this information collection is OMB No. 2130-0527.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132 (Federalism), agencies may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation.

FRA analyzed this final rule consistent with the principles and criteria in Executive Order 13132. FRA determined the final rule will not have substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA determined this final rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

However, this final rule could have preemptive effect under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970 (former FRSA), repealed and re-codified at 49 U.S.C. 20106, and the former Locomotive Boiler Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and re-codified at 49 U.S.C. 20701-03. The former FRSA provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “local safety or security hazard” exception to section 20106. Moreover, the U.S. Supreme Court has held the former LIA preempts the field concerning locomotive safety. See Napier v. Atl. Coast Line R.R., 272 U.S. 605 (1926) and Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625 (2012). Therefore, it is possible States could be preempted from requiring that locomotives display a permanent badge or tag certifying the locomotive complies with noise emission standards.

FRA has evaluated this final rule consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures), 64 FR 28545 (May 26, 1999), as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28547-48.

Under section 4(c) and (e) of FRA's Procedures, the agency has further concluded no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. Consequently, FRA finds this final rule is not a major Federal action significantly affecting the quality of the human environment.

Under Section 201 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act, 2 U.S.C. 1532, further requires that before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year (adjusted annually for inflation), and thus preparation of such a statement is not required.

For the reasons discussed in the preamble, FRA amends part 210 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: