A. Background

The Legislative Branch Appropriations Act, 2019, Public Law 115-244, sec. 102, 132 Stat. 2897, 2926 (2018) (“Appropriations Act”) amended the Federal Election Campaign Act, 52 U.S.C. 30101-30145 (“FECA”) to require that all reports, designations, and statements required to be filed under FECA must be filed with the Commission. 52 U.S.C. 30102(g). Previously, candidates for the United States Senate, their principal campaign committees, and the Republican and Democratic Senatorial Campaign Committees (collectively “Senate filers”) were required to file on paper with the Secretary of the Senate. 52 U.S.C. 30102(g)(1) (2015) ( amended 2018). All other filers were required to submit their reports, designations, and statements with the Commission. See 52 U.S.C. 30102(g)(3) (2015) ( amended 2018); see also 11 CFR part 105. To implement the change in the point of entry for reports, designations, and statements filed under FECA, the Commission is amending several regulations that state or refer to the point of entry for reports, designations, or notices.

Additionally, Senate filers are now subject to the electronic filing requirements of FECA and Commission regulations. Under these requirements, persons who are required to file with the Commission and have made expenditures or received contributions (or expect to make expenditures or receive contributions) aggregating over $50,000 in a calendar year must file electronically. 52 U.S.C. 30104(a)(11)(A)(i); 11 CFR 104.18(a). The Commission accordingly is amending its regulations to clarify that these electronic filing requirements apply to all filers, including Senate filers.

Currently, 11 CFR part 105 contains four separate regulations setting forth the place of filing for different types of filers. See 11 CFR 105.1 (House candidates and their authorized committees), 105.2 (Senate candidates, their authorized committees, and committees supporting only Senate candidates), 105.3 (Presidential candidates and their authorized committees), and 105.4 (other political committees and persons). Because all filers must now file with the Commission, the Commission is replacing 11 CFR 105.1 through 105.4 with new section 105.1 stating that all reports, designations, or statements required by FECA must be filed with the Commission.

Additionally, 11 CFR 105.5 requires the Secretary of the Senate to transfer all reports it receives pursuant to section 105.2 to the Commission. Because this provision is no longer necessary, the Commission is deleting it.

Current section 104.4(e) instructs filers to file their independent expenditure reports based on the office sought by the candidate identified in the communication. For independent expenditures in support of, or in opposition to, Senate candidates, regularly scheduled reports must be filed with the Secretary of the Senate and the Secretary of State in the state in which the candidate is seeking election, while 24- and 48-hour reports must be filed with the Commission and the Secretary of State in the state in which the candidate is seeking election. 11 CFR 104.4(e)(2). The Commission is removing this paragraph. The Commission also is renumbering current paragraph (e)(3) (currently applicable to independent expenditures referencing House of Representatives candidates) as paragraph (e)(2) and revising the new paragraph to require that reports of independent expenditures referencing House candidates, Senate candidates, or both, are filed with the Commission and the Secretary of the State in the state in which the candidate is seeking election; renumbering current paragraph (e)(4) as paragraph (e)(3); and making conforming edits to the cross-references to current paragraphs (e)(2) and (e)(3).

The Commission is revising 11 CFR 104.18(a) and (b) to make clear that all persons — including Senate filers — required by FECA to file reports and who meet certain qualifications must do so electronically with the Commission. In paragraph (a), for sake of completeness, the Commission is adding a cross-reference to parts 101, 102, 104, and 109, which also require persons to file reports. In paragraph (b), the Commission is removing the reference to part 105 because it is no longer necessary.

The Commission also is making conforming revisions to a number of regulations that refer either to the Secretary of the Senate as a place of filing or to the current place of filing provisions in 11 CFR part 105.

The Commission is removing the words “the Secretary of the Senate,” “file with the Commission” and, in one instance, the Secretary of the Senate's address, in the following provisions: 11 CFR 100.5(e)(3) (definition of “political committee”), 100.19 (“File, filed, or filing”), 104.3(e)(5) (“Contents of reports”), 104.5(f) (“Filing dates”), 104.14(c) (“Formal requirements regarding reports and statements”), 104.22(d) (“Disclosure of bundling by Lobbyists/Registrants and Lobbyist/Registrant PACs”), 108.8 (“Exemption for the District of Columbia”), 110.6(c)(1)(i) and (ii) (“Earmarked contributions”), and 114.6(d)(3) and (5) (“Twice yearly solicitations”).

The Commission also is removing cross-references to 11 CFR part 105 and, where appropriate, inserting the words “with the Commission” in the following provisions: 11 CFR 101.1(a) and (b) (“Candidate designations”), 102.1(a) and (d) (“Registration of political committees”), 102.2(a)(1) (“Statement of organization: Forms and committee identification number”), 102.3(a)(1) (“Termination of registration”), 104.22(d) (“Disclosure of bundling by Lobbyists/Registrants and Lobbyist/Registrant PACs”), and 110.6(c)(1)(i) (“Earmarked contributions”).

The Commission is taking this action without advance notice and comment because it falls under the “good cause” exception of the Administrative Procedure Act (“APA”), 5 U.S.C. 553(b)(B). The revisions are necessary to conform the Commission's regulations to FECA as amended by the Appropriations Act. Because this action does not involve any Commission discretion or policy judgments, notice and comment are unnecessary. 5 U.S.C. 553(b)(B), (d)(3).

For the same reasons, these revisions fall within the “good cause” exception to the APA's delayed effective date provision and the requirements of the Congressional Review Act. 5 U.S.C. 553(d)(3), 808(2). Moreover, because this interim final rule is exempt from the APA's notice and comment procedure under 5 U.S.C. 553(b), the Commission is not required to conduct a regulatory flexibility analysis under 55 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). Nor is the Commission required to submit these revisions for Congressional review under FECA. See 52 U.S.C 30111(d)(1), (4) (providing for congressional review when the Commission “prescribe[s]” a “rule of law”). Accordingly, these revisions are effective upon publication in the Federal Register .

For the reasons set out in the preamble, the Federal Election Commission amends 11 CFR chapter I, as follows:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because the substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds that good cause exists for making these special conditions effective upon publication in the Federal Register .

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

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On June 15, 2017, Greenpoint applied for a supplemental type certificate for single-occupant, side-facing seats with airbag devices in shoulder belts, and a floor-level, leg-flail-prevention device to limit the axial rotation of the upper leg, installed in Boeing Model 787-8 airplanes. The Boeing Model 787-8 airplane, which is a derivative of the Boeing Model 787 currently approved under Type Certificate No. T00021SE, is a twin-engine, transport-category airplane with a maximum takeoff weight of 502,500 pounds. The airplanes, as modified by Greenpoint, will have a business-jet interior with a maximum seating capacity of 41.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Greenpoint must show that the Boeing Model 787-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00021SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 787-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 787-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 787-8 airplane, as modified by Greenpoint, will incorporate the following novel or unusual design features:

Single-occupant, side-facing seats with airbag devices in shoulder belts.

Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in § 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing, although § 25.785 does require occupants of all seats that are occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.

For some time the FAA granted exemptions for the multiple-place side-facing-seat installations because the existing test methods and acceptance criteria did not produce a level of safety equivalent to the level of safety provided for forward- and aft-facing seats. These exemptions were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of the exemption issuance. The FAA also issued special conditions to address single-place side-facing seats because we believed that those conditions provided the same level of safety as for forward- and aft-facing seats.

Continuing concerns regarding the safety of side-facing seats prompted the FAA to conduct research to develop an acceptable method of compliance with §§ 25.562 and 25.785(b) for side-facing seat installations. That research has identified injury considerations and evaluation criteria in addition to those previously used to approve side-facing seats (see published report DOT/FAA/AR-09/41, July 2011). One particular concern that was identified during the FAA's research program, but not addressed in the previous special conditions, was the significant leg injuries that can occur to occupants of both single- and multiple-place side-facing seats. Because this type of injury does not occur on forward- and aft-facing seats, the FAA determined that, to achieve the level of safety envisioned in Amendment 25-64, additional requirements would be needed as compared to previously issued special conditions. Nonetheless, the research has now allowed the development of a single set of special conditions applicable to all fully side-facing seats.

On November 5, 2012, the FAA released PS-ANM-25-03-R1, “Technical Criteria for Approving Side-Facing Seats,” to update existing FAA certification policy on §§ 25.562 and 25.785(a) at Amendment 25-64 for single- and multiple-place side-facing seats. This policy addresses both the technical criteria for approving side-facing seats and the implementation of those criteria. The FAA methodology detailed in PS-ANM-25-03-R1 has been used to establish a new set of proposed special conditions.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to Boeing Model 787-8 airplanes modified by Greenpoint. Should Greenpoint apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00021SE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 787-8 airplanes modified by Greenpoint.

In addition to the airworthiness standards in §§ 25.562 and 25.785, special conditions 1 and 2 apply to all side-facing seat installations, and special conditions 3 through 16 apply to side-facing seats equipped with an airbag system in the shoulder-belt system and an airbag system in the leg-flail arresting device.

1. Additional requirements applicable to tests or rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8), and these special conditions must have an ES-2re Anthropomorphic Test Dummy (ATD) (49 CFR part 572, subpart U) or equivalent, or a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent, occupying each seat position and including all items contactable by the occupant ( e.g., armrest, interior wall, or furnishing) if those items are necessary to restrain the occupant. If included, the floor representation and contactable items must be located such that their relative position, with respect to the center of the nearest seat place, is the same at the start of the test as before floor misalignment is applied. For example, if floor misalignment rotates the centerline of the seat place nearest the contactable item 8 degrees clockwise about the airplane x-axis, then the item and floor representations must be rotated by 8 degrees clockwise also to maintain the same relative position to the seat place. Each ATD's relative position to the seat after application of floor misalignment must be the same as before misalignment is applied. To ensure proper loading of the seat by the occupants, the ATD pelvis must remain supported by the seat pan, and the restraint system must remain on the pelvis and shoulder of the ATD until rebound begins. No injury-criteria evaluation is necessary for tests conducted only to assess seat-strength requirements.

b. The longitudinal test(s) conducted in accordance with § 25.562(b)(2), to show compliance with the injury assessments required by § 25.562(c) and these special conditions, may be conducted separately from the test(s) to show structural integrity. In this case, structural-assessment tests must be conducted as specified in paragraph 1a, above, and the injury-assessment test must be conducted without yaw or floor misalignment. Injury assessments may be accomplished by testing with ES-2re ATD (49 CFR part 572, subpart U) or equivalent at all places. Alternatively, these assessments may be accomplished by multiple tests that use an ES-2re at the seat place being evaluated, and a Hybrid-II ATD (49 CFR part 572, subpart B, as specified in § 25.562) or equivalent used in all seat places forward of the one being assessed, to evaluate occupant interaction. In this case, seat places aft of the one being assessed may be unoccupied. If a seat installation includes adjacent items that are contactable by the occupant, the injury potential of that contact must be assessed. To make this assessment, tests may be conducted that include the actual item, located and attached in a representative fashion. Alternatively, the injury potential may be assessed by a combination of tests with items having the same geometry as the actual item, but having stiffness characteristics that would create the worst case for injury (injuries due to both contact with the item and lack of support from the item).

c. If a seat is installed aft of structure ( e.g., an interior wall or furnishing) that does not have a homogeneous surface contactable by the occupant, additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different injury considerations and may require additional analysis or separate test(s) to evaluate.

d. To accommodate a range of occupant heights (5th percentile female to 95th percentile male), the surface of items contactable by the occupant must be homogenous 7.3 inches (185 mm) above and 7.9 inches (200 mm) below the point (center of area) that is contacted by the 50th percentile male size ATD's head during the longitudinal test(s) conducted in accordance with paragraphs a, b, and c, above. Otherwise, additional head-injury criteria (HIC) assessment tests may be necessary. Any surface (inflatable or otherwise) that provides support for the occupant of any seat place must provide that support in a consistent manner regardless of occupant stature. For example, if an inflatable shoulder belt is used to mitigate injury risk, then it must be demonstrated by inspection to bear against the range of occupants in a similar manner before and after inflation. Likewise, the means of limiting lower-leg flail must be demonstrated by inspection to provide protection for the range of occupants in a similar manner.

e. For longitudinal test(s) conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:

i. ATD positioning—Lower the ATD vertically into the seat while simultaneously:

1. Aligning the midsagittal plane (a vertical plane through the midline of the body; dividing the body into right and left halves) with approximately the middle of the seat place.

2. Applying a horizontal x-axis direction (in the ATD coordinate system) force of about 20 lb (89 N) to the bottom of the feet of the ES-2re Hybrid-II, to compress the seat back cushion.

3. Keeping the lower and upper legs nearly horizontal by supporting at the bottom of the feet.

ii. Once all lifting devices have been removed from the ATD:

1. Rock it slightly to settle it in the seat.

2. Bend the knees of the ATD.

3. Separate the knees by about 4 inches (100 mm).

4. Set the ES-2re's head at approximately the midpoint of the available range of z-axis rotation (to align the head and torso midsagittal planes).

5. Position the ES-2re's arms at the joint's mechanical detent that puts them at approximately a 40 degree angle with respect to the torso. Position the Hybrid-II ATD hands on top of its upper legs.

6. Position the feet such that the centerlines of the lower legs are approximately parallel to a lateral vertical plane (in the airplane coordinate system).

iii. ATD clothing: Clothe each ATD in form-fitting, mid-calf-length (minimum) pants and shoes (size 11E) weighing about 2.5 lb (1.1 kg) total. The color of the clothing should be in contrast to the color of the restraint system. The ES-2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition if desired.

iv. ES-2re ATD lateral instrumentation: The rib-module linear slides are directional, i.e., deflection occurs in either a positive or negative ATD y-axis direction. The modules must be installed such that the moving end of the rib module is toward the front of the airplane. The three abdominal-force sensors must be installed such that they are on the side of the ATD toward the front of the airplane.

f. The combined horizontal/vertical test, required by § 25.562(b)(1) and these special conditions, must be conducted with a Hybrid II ATD (49 CFR part 572, subpart B, as specified in § 25.562), or equivalent, occupying each seat position.

g. Restraint systems:

i. If inflatable shoulder and leg-flail restraint systems are used, they must be active during all dynamic tests conducted to show compliance with § 25.562.

ii. The design and installation of seat-belt buckles must prevent unbuckling due to applied inertial forces or impact of the hands/arms of the occupant during an emergency landing.

2. Additional performance measures applicable to tests and rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:

a. Body-to-body contact: Contact between the head, pelvis, torso, or shoulder area of one ATD with the adjacent-seated ATD's head, pelvis, torso, or shoulder area is not allowed. Contact during rebound is allowed.

b. Thoracic: The deflection of any of the ES-2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Data must be processed as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214.

c. Abdominal: The sum of the measured ES-2re ATD front, middle, and rear abdominal forces must not exceed 562 lbs (2,500 N). Data must be processed as defined in FMVSS 571.214.

d. Pelvic: The pubic symphysis force measured by the ES-2re ATD must not exceed 1,350 lbs (6,000 N). Data must be processed as defined in FMVSS 571.214.

e. Leg: Axial rotation of the upper-leg (femur) must be limited to 35 degrees in either direction from the nominal seated position. The leg-flail-prevention mechanism must:

i. Be shown to function as intended in consideration of post-structural deformation of the seat assembly.

ii. Retract such that it does not impede rapid egress of occupants.

f. Neck: As measured by the ES-2re ATD and filtered at CFC 600 as defined in SAE J211:

i. The upper-neck tension force at the occipital condyle (O.C.) location must be less than 405 lbs (1,800 N).

ii. The upper-neck compression force at the O.C. location must be less than 405 lbs (1,800 N).

iii. The upper-neck bending torque about the ATD x-axis at the O.C. location must be less than 1,018 in-lbs (115 Nm).

iv. The upper-neck resultant shear force at the O.C. location must be less than 186 lbs (825 N).

g. Occupant (ES-2re ATD) retention: The pelvic restraint must remain on the ES-2re ATD's pelvis during the impact and rebound phases of the test. The upper-torso restraint straps (if present) must remain on the ATD's shoulder during the impact.

h. Occupant (ES-2re ATD) support:

i. Pelvis excursion: The load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of its seat's bottom seat-cushion supporting structure.

ii. Upper-torso support: The lateral flexion of the ATD torso must not exceed 40 degrees from the normal upright position during the impact.

3. For seats with a shoulder and leg-flail airbag system, the shoulder and leg-flail airbag system must deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th percentile male. The airbag systems in the shoulder belts must provide a consistent approach to energy absorption throughout that range of occupants. At some buttock popliteal length and effective seat-bottom depth, the lower legs will not be able to form a 90-degree angle with the upper leg; at this point, the lower-leg flail would not occur. The leg-flail airbag system must provide a consistent approach to prevention of leg flail throughout that range of occupants whose lower legs can form a 90-degree angle relative to the upper legs when seated upright in the seat. Items that need to be considered include, but are not limited to, the range of occupants' popliteal height, the range of occupants' buttock popliteal length, the design of the seat effective height above the floor, and the effective depth of the seat bottom cushion. When the seat system includes an airbag system, that system must be included in each of the certification tests as it would be installed in the airplane. In addition, the following situations must be considered:

a. The seat occupant is holding an infant.

b. The seat occupant is a pregnant woman.

4. The airbag system in the shoulder belt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system in the shoulder belt.

5. The design must prevent the airbag system in the shoulder belt from being either incorrectly buckled or incorrectly installed, such that the airbag system in the shoulder belt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required injury protection.

6. It must be shown that the shoulder and leg-flail airbag system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), and other operating and environmental conditions (vibrations, moisture, etc.) likely to occur in service.

7. Deployment of the shoulder and leg-flail airbag system must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress. This assessment should include an occupant whose belt is loosely fastened.

8. It must be shown that inadvertent deployment of the shoulder and leg-flail airbag system, during the most critical part of the flight, will either meet the requirement of § 25.1309(b) or not cause a hazard to the airplane or its occupants. This also includes preventing inadvertent airbag deployment from a static discharge.

9. If the airbag system is connected to the dynamic seat and must inflate through 9g static structure, then the static structure must not fail in such a way that it could impede egress or otherwise present a hazard to the occupants or to the airbag system.

10. The shoulder and leg-flail airbag system must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lighting, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection.

11. The shoulder and leg-flail airbag system must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the airbag system in the shoulder belt does not have to be considered.

12. It must be shown that the shoulder and leg-flail airbag system will not release hazardous quantities of gas, sharp injurious metal fragments, or particulate matter into the cabin.

13. The shoulder and leg-flail airbag system installation must be protected from the effects of fire such that no hazard to occupants will result.

14. A means must be available for a crewmember to verify the integrity of the shoulder and leg-flail airbag system activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals. The FAA considers that the loss of the airbag-system deployment function alone ( i.e., independent of the conditional event that requires the airbag-system deployment) is a major-failure condition.

15. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).

16. The shoulder and leg-flail airbag system, once deployed, must not adversely affect the emergency-lighting system ( i.e., block floor proximity lights to the extent that the lights no longer meet their intended function).

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the Federal Register on September 17, 2018 (83 FR 46895). The NPRM was prompted by an incident of uncommanded NWS in-service; subsequent investigation revealed that the SSV is susceptible to jamming in the open position due to particulate contamination of the hydraulic system. The NPRM proposed to require modifying the left-hand hydraulic system of the NWS control system and, for certain airplanes, torqueing the fittings on a certain tube assembly.

We are issuing this AD to address jamming of the SSV after independent failure of a second component of the NWS control system, which could result in uncommanded NWS and a possible runway excursion.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2018-11, dated April 5, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0792.

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

Bombardier requested that we correct a typographical error in the DATES section of the proposed AD. The proposed AD stated “We must receive comments on this proposed AD by November 1, 20181.” Bombardier noted that the sentence should state “We must receive comments on this proposed AD by November 1, 2018.”

We acknowledge this typographical error. However, the section containing this statement does not get carried over to this final rule. Therefore, we have not changed this AD regarding this issue.

Bombardier requested that we update their contact information in the ADDRESSES and Related Information sections of the proposed AD. Bombardier noted that their email and street addresses changed recently and updating them in our final rule would allow operators to contact Bombardier with questions.

We agree with the commenter's request for the reasons stated. We have updated the contact information for Bombardier in the ADDRESSES section and paragraph (k)(3) of this AD.

NetJets requested that we provide an exception to paragraph (g) of the proposed AD for airplanes having serial numbers 20720 and 20722. NetJets noted that the actions specified in Bombardier Service Bulletin 350-32-007 were incorporated in accordance with Bombardier Service Bulletin 350-32-007 on those airplanes during production. NetJets added that the actions required by paragraph (h) of the proposed AD would still apply to those airplanes.

We agree to clarify. Paragraph (g) of this AD only applies to airplanes not identified in paragraph (h) of this AD. Any airplane that has incorporated Bombardier Service Bulletin 350-32-007 dated January 4, 2018; Revision 01, dated January 23, 2018; or Revision 02, dated March 14, 2018, as of the effective date of this AD must complete the actions required by paragraph (h) in this AD, but does not have to complete the actions specified in paragraph (g) of this AD. Therefore, this AD has not been changed with regard to this request.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. We have determined that these minor changes:

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

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

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

Bombardier has issued Service Bulletin 100-32-31, Revision 03; and Service Bulletin 350-32-007, Revision 03; both dated March 27, 2018. This service information describes procedures for modifying the left-hand hydraulic system of the NWS control system by installing a hydraulic filter into the hydraulic line between the direct current motor pump and the SSV and, for certain airplanes, torqueing the fittings on a certain tube assembly. These documents are distinct since they apply to different airplane configurations.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 534 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 and 787-9 airplanes. The NPRM published in the Federal Register on August 31, 2018 (83 FR 44508). The NPRM was prompted by a determination that certain areas in the tire/wheel threat zones could be susceptible to damage, which could result in loss of braking on one MLG truck, loss of nose wheel steering, and loss of directional control on the ground when below rudder effectiveness speed. The NPRM proposed to require installing hydraulic tubing, a pressure-operated check valve, and new flight control software.

We are issuing this AD to address damage from a MLG thrown tire tread or tire burst event, which could result in loss of directional control on the ground and consequent runway excursion.

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

The Air Line Pilots Association, International (ALPA) stated it agrees with the intent of the NPRM. Boeing stated it concurs with the contents of the NPRM.

American Airlines asked that Boeing Information Notice B787-A-29-00-0032-01A-931E-D, Issue 001, dated June 12, 2018, be added to paragraph (g)(1) of the proposed AD as an additional source of service information for accomplishing the required actions. American Airlines stated that the information notice contains corrections to Boeing Alert Service Bulletin B787-81205-SB290032-00, Issue 001, dated November 17, 2017, including to the aircraft configuration and accomplishment instructions. American Airlines added that, as written, the proposed AD would require an alternative method of compliance for operators to accomplish the modification following the instructions in this service information.

We agree to address the corrections in Boeing Information Notice B787-A-29-00-0032-01A-931E-D, Issue 001, dated June 12, 2018, in this AD. Boeing has issued Boeing Alert Service Bulletin B787-81205-SB290032-00, Issue 002, dated February 1, 2019, which includes the corrections and clarifications specified in Boeing Information Notice B787-A-29-00-0032-01A-931E-D, Issue 001, dated June 12, 2018. We have determined these corrections and clarifications to the service information do not change the substantive requirements of this AD but rather make the requirements more accurate and understandable. We have further determined that Issue 002 of Boeing Alert Service Bulletin B787-81205-SB290032-00 does not require additional work for airplanes on which the actions specified in Issue 001 have been done.

Therefore, we revised the “Related Service Information under 1 CFR part 51” paragraph of this final rule, and paragraphs (c)(1) and (g)(1) of this AD, to refer to Boeing Alert Service Bulletin B787-81205-SB290032-00 Issue 002, dated February 1, 2019. We also provide credit in this AD for using Boeing Alert Service Bulletin B787-81205-SB290032-00, Issue 001, dated November 17, 2017; and for using Boeing Alert Service Bulletin B787-81205-SB290032-00, Issue 001, dated November 17, 2017, in conjunction with Boeing Information Notice B787-A-29-00-0032-01A-931E-D, Issue 001, dated June 12, 2018.

Japan Airlines requested that we refer to a revised service bulletin to address two errors found in Boeing Alert Service Bulletin B787-81205-SB290033-00, Issue 001, dated November 17, 2017. Japan Airlines stated that there are incorrect part numbers in multiple locations in Figure 10 and Figure 11. Japan Airlines stated it contacted Boeing to correct the errors, and Boeing stated that a revision was in work.

We agree we should address the errors identified by the commenter in this AD. We have confirmed the errors with Boeing; however, Boeing has not yet issued revised service information. We have included the corrections to the service information, including the part number corrections identified by the commenter, as exceptions in this AD.

United Airlines asked that Boeing Information Notice B787-A-27-00-0039-01A-931E-D, Issue 001, dated September 7, 2017, be approved as an additional source of service information for accomplishing the required actions (in paragraph (g)(2) of the proposed AD). United Airlines stated that the information notice contains corrections to Boeing Alert Service Bulletin B787-81205-SB270039-00, Issue 001, dated July 31, 2017, but noted the required software part numbers did not change.

We agree with the commenter since the information notice provides the correct software location identification for a couple of steps and refers to an alternative method of compliance to a different AD. We have provided credit in this AD for using Boeing Alert Service Bulletin B787-81205-SB270039-00, Issue 001, dated July 31, 2017, in conjunction with Boeing Information Notice B787-A-27-00-0039-01A-931E-D, Issue 001, dated September 7, 2017.

Paragraph (g)(2) of the proposed AD specifies to install new software as specified in Boeing Alert Service Bulletin B787-81205-SB270039-00, Issue 002, dated March 8, 2018, for certain Model 787-9 airplanes. In addition to the software identified in Boeing Alert Service Bulletin B787-81205-SB270039-00, Issue 002, dated March 8, 2018, we have determined that later-approved software versions are acceptable for compliance, provided those later-approved versions meet certain conditions. We have revised paragraph (g)(2) of this AD to allow later-approved software versions.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

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

We reviewed Boeing Alert Service Bulletins B787-81205-SB290032-00, Issue 002, dated February 1, 2019, and B787-81205-SB290033-00, Issue 001, dated November 17, 2017. This service information describes procedures for installing hydraulic tubing and installing a pressure-operated check valve. These documents are distinct since they apply to different airplane models.

We also reviewed Boeing Alert Service Bulletin B787-81205-SB270039-00, Issue 002, dated March 8, 2018. This service information describes procedures for installing new flight control software.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 87 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Introduction

The Federal Trade Commission previously requested comments on the Holder Rule as part of its comprehensive regulatory review program. 1 Specifically, the Commission sought comments on the Holder Rule's costs and benefits, and on whether there is a continuing need for it. Commenters uniformly supported the Rule, and a few suggested restating a previously announced advisory opinion of the Rule, clarifying portions of the Rule, or expanding the reach of the Rule. After considering the comments and evidence, the Commission has determined to retain the Rule without modification.

On November 14, 1975, the Commission promulgated its Trade Regulation Rule Concerning the Preservation of Consumers' Claims and Defenses. The Holder Rule protects consumers who enter into credit contracts with a seller of goods or services by preserving their right to assert claims and defenses against any holder of the contract, even if the seller subsequently assigns the contract or works with a third-party creditor who finances the sale. It requires sellers that arrange for or offer credit to finance consumers' purchases to include the following Notice in at least ten-point, bold face type in their contracts: “ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED . . . WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.”  2 A creditor or assignee of the contract is thus subject to any claims or defenses that the consumer could assert against the seller. The Commission adopted the Rule to provide recourse to consumers who otherwise would be legally obligated to make full payment to a creditor or assignee despite breach of warranty, misrepresentation, or even fraud on the part of the seller. 3

The Commission received nineteen comments in response to its Federal Register notice. 4 Three comments were from consumer groups and legal advocacy organizations, three comments were from offices of State Attorneys General, five comments were from industry and trade association groups, four comments were from credit unions and a credit union association, and four comments were from consumers. As discussed below, all commenters who addressed the issue agreed that the Commission should retain the Rule, although some suggested modifying or clarifying the Rule.

The Commission discusses the comments in three sections. In Section A, the Commission discusses the comments that support retaining the Rule. Section B discusses the comments concerning affirmative recoveries and the Commission's 2012 advisory opinion on that topic. In Section C, the Commission analyzes the comments that propose modifications to the Rule. 5 The Commission has analyzed the proposed benefits to consumers of proposed changes to the Rule's coverage, including any evidence provided of those benefits, and balanced those proposed benefits against the cost of implementing the changes, the need for the change, and alternative means of providing these benefits for consumers, such as consumer education materials.

All of the commenters who addressed the issue supported maintaining the Rule; none advocated rescinding it. For example, a comment on behalf of consumer groups stated, “The Holder Rule is one of the most important actions the Commission has ever taken in preventing and remedying unfair and deceptive practices in the marketplace.”  6 This comment also noted, “The Holder Rule has resulted in no cost to consumers and only minimal cost to businesses.”  7 Another comment stated that “[c]onsumer advocates have described the Holder Rule as the `FTC's most effective tool against fraud.' ”  8 NACA stated that the Rule “protects consumers in the marketplace from unscrupulous vendors by providing a valuable avenue for redress when sellers act badly.”  9 The Iowa Attorney General's office described how the Rule has benefitted consumers in Iowa, and encouraged the Commission to retain the Rule. 10 Industry members and credit unions also supported maintaining the Rule. The American Financial Services Association (“AFSA”) and National Independent Automobile Dealers Association (“NIADA”) urged the Commission not to make any changes to the Rule. 11 The National Auto Dealer Association (“NADA”) similarly supported retention of the Rule as is, citing wide industry compliance with the Rule in its current form. 12 The Heartland Credit Union Association (“Heartland”) supported the consumer protection goals of the Rule and “supports compliance with the Holder Rule.”  13

In light of the comments received, and in the absence of any opposition, the Commission concludes that a continuing need exists for the Rule. The comments indicate that the Rule benefits consumers and does not impose significant costs, and the Commission has no evidence to the contrary. Accordingly, the Commission has decided to retain the Rule.

Two commenters asked the Commission to reiterate the Commission's May 3, 2012 advisory opinion concerning affirmative recoveries. 14 The Commission restates that opinion as part of this rule review. 15 In particular, the Rule does not limit affirmative recovery to circumstances where rescission is warranted or where the goods or services sold to the consumer are worthless. Indeed, the Rule places no limits on a consumer's right to an affirmative recovery other than limiting recovery to a refund of monies paid under the contract. As the Commission previously stated, to give full effect to the Commission's original intent to shift seller misconduct costs away from consumers, consumers must have the right to recover funds already paid under the contract if such recovery is necessary to fully compensate the consumer for the misconduct—even if rescission of the transaction is not warranted.

One commenter further urged the Commission to affirm that the ability of consumers to bring an affirmative claim based on the Holder Rule does not depend upon whether state law authorizes affirmative actions against holders. 16 The commenter was specifically concerned with the Eighth Circuit's decision in LaBarre v. Credit Acceptance Corp., in which the court concluded that a Minnesota consumer could not rely on the Holder Rule Notice to bring an action against an assignee because a state consumer protection statute that provided similar protections specified that consumers may raise the statutory protections only as a defense or set-off. 17 Although the Minnesota statute stated that this restriction on the manner in which consumers could assert rights applied to “the rights of the consumer under this subdivision,” the Eighth Circuit applied this restriction to a claim based on the Holder Rule Notice in the consumer's contract. In our judgment, the court erred by limiting recovery under the Holder Rule to defense or set-off under the Minnesota statute. The Minnesota statutory limitation might apply to claims and defenses asserted under the specific subdivision of the Minnesota Code, but would not apply to other claims and defenses that a consumer might assert against the seller. 18

Several commenters supported the Rule and additionally suggested modifications to the Rule. As discussed in detail below, none of the comments that proposed changing the Rule provided the Commission with specific evidence of the potential costs and benefits of such modifications.

Several commenters suggested modifying the contractual language notifying consumers of their rights under the Rule and requiring additional notices to consumers. The Office of the New York Attorney General, joined by the Attorneys General of Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Virginia, and Washington (“Joint Attorneys General”) recommended amending the Rule to use “less `legalistic' language,” to “explicitly state that the consumer's right to an affirmative recovery is unqualified,” and to require that collection notices include a notice advising consumers of their rights under the Rule. 19 The Office of the District of Columbia Attorney General (“DC AG”) also recommended modifying the “legalistic” wording of the Rule and requiring the Rule's notice in collection notices. 20 Other commenters recommended modifying the Rule to require lenders to notify consumers of their rights under the Rule and “proactively and meaningfully respond to consumer complaints.”  21

None of the comments proposing these modifications to the Rule provided the Commission with evidence showing how and the extent to which these changes would benefit consumers, and they did not address whether the benefits to consumers would outweigh the potential increased costs in adopting such changes. Industry commenters noted that businesses would pass any increased costs of compliance with the Holder Rule along to consumers. 22

The Commission believes that the record does not support modification of the Rule language. To assist with consumers' understanding of the Rule, however, the Commission will review and consider revising its existing consumer education materials to help inform consumers of the Rule's protections.

Three comments discussed the Rule's application to leases. Two comments advocated for the Rule's application to leases, and one of these commenters proposed a rulemaking to extend the Rule to consumer motor vehicle leases. 23 A third comment urged the Commission to confirm that the Rule applies only to consumer credit contracts. 24 NCLC noted that courts generally have found that the Rule does not apply to leases. NCLC further asserted that leases today (in contrast to 1976) are widespread, and the Rule's protections are just as essential for leasing as consumer credit. This comment also indicated that, under state law, lessees typically can bring seller-related defenses but cannot assert claims against the assignee. AFSA, however, stated that the “plain language of the Rule does not apply to consumer vehicle leases” and urged the Commission not to amend or expand the Rule's application to leases. 25

The Commission appreciates the information provided by these comments and notes that the Rule does apply to certain leases. Certain contracts labelled as “leases” are credit transactions in which a consumer repays debt by paying the lease installments. Such contracts, when used in the sale or lease of goods or services, are subject to the Rule. 26 None of the comments that advocated expanding coverage to all leases provided evidence as to how such a change would benefit consumers. 27 Furthermore, none of the comments addressed the increased costs to businesses, if any, that would result from modifying the Rule to cover all leases. Thus, the Commission does not propose changing the Rule. 28

Six comments addressed whether the Rule's limitation on recovery to “amounts paid by the debtor” allows or should allow consumers to recover attorneys' fees above that cap: Four comments supported having no cap on recovery of attorneys' fees, while one opposed it and one proposed a set fee schedule in some circumstances. 29 According to the comments, some courts have permitted fees above the cap, while others have not. NCLC argued that liability for attorneys' fees under fee-shifting statutes is independent from an assignee's derivative liability under the Holder Rule, and therefore is not capped by the Rule's limitation to “recovery hereunder.” NCLC further argued that the purpose of fee-shifting statutes is to encourage settlement and make it feasible for consumers to pursue cases through small claims actions—which NCLC asserted would be ineffective if attorneys' fee recoveries were limited by the Rule to amounts paid by the debtor. This comment noted that the Staff Guidelines indicate that the holder is liable both for seller misconduct under the Holder Rule and for its own conduct independent of any cap:

We conclude that if a federal or state law separately provides for recovery of attorneys' fees independent of claims or defenses arising from the seller's misconduct, nothing in the Rule limits such recovery. Conversely, if the holder's liability for fees is based on claims against the seller that are preserved by the Holder Rule Notice, the payment that the consumer may recover from the holder—including any recovery based on attorneys' fees—cannot exceed the amount the consumer paid under the contract. Claims against the seller for attorneys' fees or other recovery may also provide a basis for set off against the holder that reduces or eliminates the consumer's obligation. The Commission does not believe that the record supports modifying the Rule to authorize recovery of attorneys' fees from the holder, based on the seller's conduct, if that recovery exceeds the amount paid by the consumer. 32 Additionally, one commenter suggested that the Commission use the Rule to establish a schedule of attorneys' fees and circumstances under which the fees could be awarded. 33 Such measures, however, are beyond the scope of the Rule, and not supported by any showing that such an expansion of the Rule is necessary to achieve its objectives.

Some commenters asked the Commission to modify the Rule language so that Holder Rule protections would apply even where the consumer credit contract does not include the Holder Rule Notice. 34 According to the comments, if the contract does not contain the Holder Notice, consumers may not be able to preserve claims and defenses in all the circumstances contemplated by the Rule.

This issue would arise only in those instances where sellers make contracts or accept the proceeds from purchase money loans that omit a required Holder Rule Notice. The comments do not provide evidence that such violations are widespread. 35 Moreover, where such violations occur, a consumer may be able assert claims and defenses against a holder. Several state laws build upon the Holder Rule by providing that, if an instrument is used to finance consumer transactions subject to the Holder Rule, a holder's rights against a consumer are subject to the limitations imposed by the Holder Rule Notice—just as if the Notice was included in the instrument. 36 The comments do not provide evidence that there are a significant number of transactions in which sellers violate the Holder Rule and, despite laws limiting holders' remedies, the sellers' violations allow a holder to cut off consumer claims and defenses. Therefore, the Commission declines to propose modifying the Rule to address these concerns.

Two comments urged that the FTC state that consumers' rights under the Rule cannot be waived. 37 These commenters, however, did not describe specific “waiver”-related practices that they believed were not adequately addressed by the current Rule, or provide evidence of unfair practices involving waivers.

The Holder Rule was adopted, in part, to prevent the use of contractual waivers to cut off consumer claims and defenses. 38 Courts have recognized that the contractual provision required by the Rule makes unenforceable other provisions that purport to waive or otherwise undermine the consumers' ability to assert the claims or defenses. 39 Some states have also recognized a private right of action under state law against sellers, lenders or holders that attempt to undermine the Rule through contractual provisions or notices that might be described as a waiver. 40 Moreover, the Commission, in an unlitigated settlement of an enforcement action, indicated that it is an unfair or deceptive practice under federal law for a creditor to represent that consumers waive their rights under the Holder Rule if they do not give the creditor written notice of their complaints about sellers. 41

Thus, practices that purport to waive a consumer's rights under the Holder Rule are contrary to its purpose, and companies that engage in such practices risk liability under federal and state laws. Because the current record does not provide examples of misconduct associated with waivers that is occurring despite the existing law, the Commission is not convinced that these comments warrant considering changes to the Rule. However, the Commission staff will continue to monitor this issue. 42

Two comments recommended that the Commission expand the Rule to cover lenders, in addition to retail “sellers.”  43 Specifically, these comments urged the Commission to require lenders to include Holder Rule language in their contracts because they assert that most credit contracts are drafted by the assignee, rather than the seller, and both the seller and the lender should have joint responsibility to include the Holder Rule Notice. 44 However, industry commenters explained that expanding the requirements to lenders under the Rule would have meaningful costs to lenders that would ultimately be passed on to consumers. 45 Upon review of the comments, the Commission concludes that the record does not include sufficient evidence to support proposing an expansion of the Rule to apply to lenders. 46

The comments uniformly favored retention of the Rule and stated that there is a continuing need for the Rule; that the Rule benefits consumers; that the Rule does not impose substantial economic burdens; and that the benefits outweigh the minimal costs the Rule imposes. Although commenters recommended that the Commission modify certain aspects of the Rule, none of the comments provided sufficient evidence demonstrating that such modifications were necessary and would, in fact, help consumers. Moreover, none of the comments proposing such modifications analyzed the associated costs.

The FTC plans to review and consider revising our consumer education materials to address the concerns raised in the comments submitted pursuant to this rule review to ensure that consumers more easily understand the Rule's protections. Furthermore, as noted in both NCLC's and NACA's comments, the Commission has a variety of enforcement tools available to help ensure compliance. 47 If, at a later date, the Commission concludes that the Rule, case law interpreting the Rule, and the FTC's other enforcement tools do not provide adequate guidance and protection for consumers in the marketplace, it can then consider, based on a further record, whether and how to amend the Rule. Accordingly, the Commission has determined to retain the current Rule and is terminating this review.

This final rule makes certain reporting and disclosure of multiemployer information to PBGC and interested parties more efficient and reflects the repeal of the multiemployer plan reorganization rules. The rule reduces costs by allowing smaller plans terminated by mass withdrawal to perform actuarial valuations less frequently and by removing certain notice requirements for insolvent plans. This reduces plan administrative costs and, in turn, may reduce financial assistance provided by PBGC.

PBGC's legal authority for this action is based on section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA; section 4041A(f)(2) of ERISA, which gives PBGC authority to prescribe reporting requirements for terminated plans; section 4245(e) of ERISA, which directs PBGC to prescribe requirements for notices regarding multiemployer plan insolvency; section 4261 of ERISA, which authorizes PBGC to provide financial assistance to insolvent plans; and section 4281(d)(3) of ERISA, which directs PBGC to prescribe requirements for notices to plan participants and beneficiaries in the event of a benefit suspension by an insolvent plan.

The plan sponsor of a multiemployer plan terminated by mass withdrawal is responsible for specific duties, including an annual actuarial valuation of the plan's assets and benefits. This final rule reduces administrative burden by allowing a plan sponsor to perform an actuarial valuation only every 5 years if the present value of the plan's nonforfeitable benefits is $50 million or less. The final rule adds a new requirement for plan sponsors of certain terminated plans and insolvent plans to file actuarial valuations with PBGC. Where the present value of the plan's nonforfeitable benefits is $50 million or less, a plan receiving financial assistance from PBGC may file alternative valuation information.

The plan sponsor of a multiemployer plan also is responsible for determining, giving notice of, and collecting withdrawal liability. The final rule requires plan sponsors of certain terminated plans and insolvent plans to file with PBGC information about withdrawal liability payments and whether any employers have withdrawn but have not yet been assessed withdrawal liability.

The plan sponsor of a multiemployer plan terminated by mass withdrawal that is insolvent or is expected to be insolvent for a plan year must provide certain notices to PBGC and participants and beneficiaries. Similarly, the plan sponsor of a multiemployer plan that is certified by the plan's actuary to be in critical status and that is expected to become insolvent under section 4245 of ERISA must provide certain notices to PBGC and interested parties. Notices include a notice of insolvency and a notice of insolvency benefit level. The final rule eliminates outdated information included in the notices and changes the frequency of the notices. A plan sponsor is required to provide notices of insolvency if the plan sponsor determines the plan is insolvent in the current plan year or is expected to be insolvent in the next plan year. The final rule also eliminates the requirement to provide most annual updates to the notices of insolvency benefit level.

The Pension Benefit Guaranty Corporation (PBGC) administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): A single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. In general, a multiemployer pension plan is a collectively bargained plan involving two or more unrelated employers. This final rule deals with multiemployer plans.

Under section 4041A of ERISA, a mass withdrawal termination of a plan occurs when all employers withdraw or cease to be obligated to contribute to the plan. A plan terminated by mass withdrawal continues to pay all vested benefits from existing plan assets and withdrawal liability payments from withdrawn employers. PBGC's financial assistance to the terminated plan starts only if and when the plan sponsor determines that the plan is insolvent under section 4281(d) of ERISA. PBGC also provides financial assistance to certain plans in critical status that are not terminated or are terminated by plan amendment  1 if the plan sponsor determines that the plan is insolvent under section 4245 of ERISA.

Before 2015, financially troubled multiemployer plans entered a “reorganization” status if their funding was below a certain level. Plans in reorganization status were subject to certain rules affecting plan funding, benefits, and reporting and disclosure. The plan sponsor of a plan in reorganization that determined the plan was insolvent or was expected to be insolvent for a plan year was required to provide PBGC and interested parties notices regarding the plan's insolvency. The Pension Protection Act of 2006 established critical and endangered statuses for underfunded plans and provided new tools to help multiemployer plans in those statuses improve plan funding but did not repeal the reorganization rules. Section 108 of the Multiemployer Pension Reform Act of 2014 (MPRA) repealed the rules on reorganization under section 4241 of ERISA effective for plan years beginning after December 31, 2014. MPRA also amended the notice requirements under section 4245(e) of ERISA and 418E(e) of the Internal Revenue Code (Code) to replace the references to a plan in reorganization with references to a plan in critical status. These amendments did not substantively change the notice requirements.

On July 16, 2018 (at 83 FR 32815), PBGC published a proposed rule to reduce reporting and disclosure requirements for multiemployer plans that are terminated by mass withdrawal or in critical status and that are, or are expected to be, insolvent. 2 PBGC identified the proposed amendments as part of its ongoing retrospective review under Executive Order 13563 “Improving Regulation and Regulatory Review.” Executive Order 13563 provides for Federal regulations to use less burdensome means to achieve policy goals, and for agencies to give careful consideration to the benefits and costs of those regulations. Comments received from one commenter in response to PBGC's July 2017 Request for Information  3 support the changes to reduce notice requirements for insolvent plans.

In response to PBGC's proposed rule, two commenters submitted comments generally supporting PBGC's efforts to reduce regulatory burden. These commenters also made some suggestions and recommendations for changes. In response to the comments, PBGC is making modifications to the forms and instructions associated with this final rule, but the final rule is substantially the same as the proposed rule. The public comments, PBGC's responses, including modifications to the forms and instructions, and the provisions of this final rule are discussed below.

PBGC's regulation on Termination of Multiemployer Plans (29 CFR part 4041A) establishes rules for the administration of multiemployer plans that have terminated by mass withdrawal, including basic duties of plan sponsors of plans terminated by mass withdrawal. Among the requirements, the plan sponsor of a plan terminated by mass withdrawal must value the plan's nonforfeitable benefits and assets as of the last day of the plan year in which the plan terminates and the last day of each plan year thereafter. The details of the annual actuarial valuation requirement are provided in subpart B of PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281).

The plan sponsor of a plan terminated by mass withdrawal uses the annual actuarial valuation to determine whether the value of nonforfeitable benefits exceeds the value of assets. If benefits exceed assets, the plan may need to reduce benefits. If no benefits are subject to reduction, the plan sponsor will continue to make periodic determinations of plan solvency. The final rule revises § 4041A.25 of the multiemployer termination regulation to clarify the timing of the plan sponsor's determinations of plan solvency by combining similar provisions to eliminate repetition and by removing potentially confusing language.

The plan sponsor of a plan in critical status must also make determinations of plan solvency. If the plan sponsor determines under section 4245(d) of ERISA that the plan is expected to be insolvent for a plan year, the plan sponsor must file a notice with PBGC, including a copy of the most recent actuarial valuation for the plan. PBGC uses the annual actuarial valuation to estimate the liabilities PBGC will incur when the plan becomes insolvent and for purposes of its financial statements.

The final rule reduces the number of plans terminated by mass withdrawal that are required to prepare an annual actuarial valuation. Section 4041A.24 of the multiemployer termination regulation provides that if the value of nonforfeitable benefits for a plan terminated by mass withdrawal is $25 million or less as determined for a plan year, the plan sponsor may use the actuarial valuation for the next two years and perform a new actuarial valuation for the third plan year. The final rule increases the threshold requirement for plan sponsors and allows them to use less frequent actuarial valuations. A plan sponsor may use an actuarial valuation for 5 years if the present value of the plan's nonforfeitable benefits is $50 million or less and be in compliance with the statutory requirement that there be an annual written determination of the value of the plan's nonforfeitable benefits and the plan's assets.

If the present value of a plan's nonforfeitable benefits exceeds $50 million, the plan sponsor continues to be required to perform actuarial valuations annually. 4 Plans may move in and out of the 5-year or annual valuation cycle, as applicable, as the value of nonforfeitable benefits changes. Thus, a plan sponsor that had been using an actuarial valuation for 5 years is required to perform actuarial valuations annually if the most recent actuarial valuation indicates that the present value of the plan's nonforfeitable benefits exceeds $50 million. Similarly, a plan sponsor that had been performing the actuarial valuation annually may use the actuarial valuation for 5 years if the most recent actuarial valuation shows the present value of the plan's nonforfeitable benefits to be $50 million or less.

To estimate PBGC's multiemployer plan liabilities, PBGC is adding the annual actuarial valuation requirement for plan sponsors of insolvent plans receiving financial assistance from PBGC (whether terminated or not terminated) and plan sponsors of plans terminated by plan amendment that are expected to become insolvent. 5 The provision allowing smaller plans to use less frequent actuarial valuations is available to these plan sponsors. In addition, where the present value of the plan's nonforfeitable benefits is $50 million or less, a plan receiving financial assistance from PBGC may comply with the actuarial valuation requirement by filing alternative information as specified in valuation instructions on PBGC's website.

PBGC received two comments with respect to its proposed changes to the actuarial valuation filing requirements. One commenter supported PBGC's proposed change to allow plan sponsors of plans terminated by mass withdrawal to use an actuarial valuation for 5 years if the present value of the plan's nonforfeitable benefits is $50 million or less. A second commenter raised concerns about the annual actuarial valuation requirement for plan sponsors of insolvent plans receiving financial assistance from PBGC. The commenter suggested that plan sponsors of plans receiving financial assistance from PBGC be able to comply with the actuarial valuation requirement by filing every 5 years the alternative information specified in instructions. The commenter stated that requiring actuarial valuations from plan sponsors of insolvent plans with nonforfeitable benefits exceeding $50 million is not an effective use of PBGC's limited resources.

PBGC considered the comment, PBGC's need for data to measure its liabilities, and the minimal cost of requiring plans to file actuarial valuations, and decided to adopt in the final rule its proposed changes to the annual actuarial valuation requirements. The final rule enables PBGC to continue to have reasonably reliable data to measure its liabilities, while reducing burden on plans that present smaller exposure to PBGC. While PBGC currently obtains actuarial valuations for plans receiving financial assistance by contacting plan sponsors, a change in process is needed because of the increasing number of insolvent plans. The final rule requires a plan sponsor to file the plan's actuarial valuation or alternative valuation information with PBGC within 180 days after the end of the plan year. Having plans file the actuarial valuation or alternative valuation information within that time period provides for a more efficient process for plan sponsors and PBGC and is a more effective use of PBGC's resources.

The final rule also adopts the proposed rule's clarifications and other editorial changes to part 4041A.

The plan sponsor of a multiemployer plan is required to determine and collect withdrawal liability in accordance with section 4219 of ERISA. The plan sponsor assesses withdrawal liability by issuing a notice to an employer, including the amount of the employer's liability and a schedule of payments. The plan sponsor of a plan terminated by mass withdrawal must file with PBGC a certification that notices have been provided to employers. 6

PBGC uses information about withdrawal liability payments and settlements, and whether employers have withdrawn from the plan but have not yet been assessed withdrawal liability, to estimate PBGC's multiemployer liabilities for purposes of its financial statements and to provide financial assistance to plans. 7 It is particularly important for PBGC to identify all sources of available funding given the declining financial position of the multiemployer program. In the year ended September 30, 2018, there were 78 insolvent plans that received financial assistance from PBGC and 64 terminated plans not yet receiving financial assistance. 8 The number of plans receiving and expected to receive financial assistance led PBGC to examine the way it obtains withdrawal liability information.

PBGC's rulemaking requires plan sponsors of plans subject to the actuarial valuation requirement (plans terminated by mass withdrawal, plans terminated by plan amendment that are expected to become insolvent, and insolvent plans receiving financial assistance from PBGC (whether terminated or not terminated)), to file with PBGC information about withdrawal liability, in the aggregate and by employer, that the plan has or has not yet assessed withdrawn employers. The information is specified in the withdrawal liability instructions on PBGC's website. For each employer not yet assessed withdrawal liability, information includes the name of the employer, contribution owed in the plan year before withdrawal, and the reasons the employer has not yet been assessed withdrawal liability. For each employer assessed withdrawal liability, information includes the name of the employer and whether there are scheduled periodic payments or there has been a lump-sum settlement. For periodic payments, information includes the start date, end date, frequency of payment (monthly, quarterly, annually), amount of payment, and whether the employer is current on making its payments. For lump sum settlements, information includes the amount and date of payment. To satisfy the filing requirement for employers assessed withdrawal liability, a plan sponsor may choose to file documents already prepared containing the withdrawal liability information for each employer, such as withdrawal liability notices setting forth scheduled payments or withdrawal liability settlement agreements.

The final rule requires a plan sponsor to file the withdrawal liability information with PBGC within 180 days after the earlier of the end of the plan year in which the plan terminates or becomes insolvent and each plan year thereafter. If a plan sponsor has previously filed the withdrawal liability information with PBGC, the plan sponsor may satisfy the filing requirement by submitting a statement that there is no change in the information from what was filed in a previous year. Having plan sponsors file the withdrawal liability information electronically and within the time period provides for an efficient process for plan sponsors and PBGC.

The two commenters expressed concerns about the scope of the withdrawal liability information required to be filed with PBGC, including whether a plan is required to provide information as to its entire historical experience. In response to these comments, PBGC is modifying the withdrawal liability instructions to clarify that withdrawal liability information for plan years ending before the effective date of the final rule will not be required to be filed. For a plan year filing, information will be required for each employer that withdrew during the plan year and has not yet been assessed withdrawal liability. For each employer that has been assessed withdrawal liability, information will be required on payments received in the plan year and/or expected to be received in future plan years. In addition, PBGC is clarifying in the withdrawal liability instructions that a plan sponsor is not required to file withdrawal liability information already filed with PBGC. In December 2018, PBGC sent a withdrawal liability survey to plan sponsors of terminated plans and insolvent plans with 500 or more participants to obtain information about withdrawal liability assessed and not yet assessed withdrawn employers. 9 The information obtained from this survey will provide PBGC information about withdrawal liability that contributing employers owe or owed in prior plan years.

The commenters also expressed concerns about the withdrawal liability information becoming publicly available, especially with respect to individual settlement of withdrawal liability and withdrawal liability not yet assessed withdrawn employers. One commenter suggested that PBGC collect aggregated information, or, if PBGC collects information about a given employer's withdrawal liability, that reasonable safeguards be put in place to ensure the protection of confidential and proprietary information. PBGC considered these comments and decided to adopt in the final rule the proposed amendment to require filing of withdrawal liability information and to modify the withdrawal liability instructions. As explained above, the withdrawal liability information is required to be filed in the aggregate and on an employer basis. PBGC needs this information, including by employer, to estimate with more precision PBGC's current and projected future financial assistance needs and the financial position of the multiemployer insurance program. PBGC will use employer information to corroborate filed information to financial assistance requests and other plan records, which will allow for more utility of information received. PBGC's rules providing and restricting access to its records are set forth in PBGC's regulation on Examination and Copying of PBGC Records (29 CFR part 4901). If PBGC receives a request for confidential information, it notifies the submitter of the records, and affords them a reasonable period of time to object to the disclosure, pursuant to PBGC procedures and as required under Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information. If PBGC decides not to sustain a submitter's objection in any request, it provides the submitter with a written statement explaining why it has determined to disclose the information within a reasonable number of days before a specified disclosure date. PBGC is adding this explanation about its rules providing and restricting access to records to the Paperwork Reduction Act notice included with the withdrawal liability instructions.

Finally, one of the commenters stated that the information collected on why employers may not have been assessed withdrawal liability suggests that PBGC may use the information for purposes outside of its authority. PBGC's authority for requiring withdrawal liability information to be filed by terminated plans and insolvent plans and use of the information are amply explained in this preamble and in the supporting statement for the information collection.

The plan sponsor of a multiemployer plan terminated by mass withdrawal must make determinations of insolvency annually in accordance with section 4281 of ERISA and the plan sponsor of a multiemployer plan in critical status must make determinations of insolvency in accordance with section 4245(d) of ERISA. When the plan sponsor of a multiemployer plan determines that the plan's resources are not sufficient to pay the promised level of benefits stated in the plan when due during the plan year, the plan sponsor must suspend benefits above the amount that assets will cover. However, benefits may not be reduced to an amount less than the PBGC guarantee level. Plan sponsors that are not able to pay benefits at the promised level of benefits stated in the plan are required to notify PBGC and plan participants and beneficiaries.

The notice requirements for plans that have terminated by mass withdrawal are provided under subpart D of PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281). Similar notice requirements are provided for plans that are in critical status under PBGC's regulation on Notice of Insolvency (29 CFR part 4245). Under the latter, in addition to notifying PBGC and participants and beneficiaries, plan sponsors must notify other interested parties, including employers required to contribute to the plan and employee organizations that, for collective bargaining purposes, represent participants employed by such employers.

There are two types of notice that plan sponsors must provide: a “notice of insolvency,” stating the plan year that the plan is insolvent or is expected to be insolvent, and a “notice of insolvency benefit level,” stating the level of benefits that will be paid during a plan year in which a plan is insolvent. The final rule requires the plan sponsor of a critical status plan or of a plan terminated by mass withdrawal to provide notices of insolvency if it determines that the plan is insolvent in the current plan year or is expected to be insolvent in the next plan year. The timing of the delivery of the notice of insolvency and the notice of insolvency benefit level is the same—by the later of 90 days before the beginning of the insolvency year or 30 days after the date the insolvency determination is made. In addition, the final rule allows the plan sponsor to provide one combined notice for the same insolvency year.

PBGC's regulations currently require plan sponsors to provide the notice of insolvency benefit level annually. PBGC's experience has been that virtually all multiemployer plans that become insolvent will remain so. Thus, once a plan sponsor has provided the initial notice of insolvency benefit level, there is little need to require the plan sponsor to provide similar subsequent notices. Consequently, PBGC's final rule eliminates most of the annual updates to the notices of insolvency benefit level. The plan sponsor is required to provide updated notices to PBGC and to all participants and beneficiaries only if there is a change in the amount of benefits paid that affects participants and beneficiaries generally. If a participant or beneficiary enters pay status or is reasonably expected to enter pay status during the insolvency year, or there is a change in benefit level that affects only one participant or beneficiary or a participant class, a notice is only required to be provided to PBGC and to each affected person. For example, in the latter case, if a participant enters pay status or a participant's death results in the payment of benefits to the participant's beneficiary, only PBGC and those affected participants and beneficiaries are provided notices. One commenter encouraged PBGC to finalize these changes to eliminate redundant notice requirements for terminated plans and insolvent plans.

Plan sponsors are required to electronically file notices of termination, notices of insolvency, and notices of insolvency benefit level. 10 The final rule moves the content requirements for these notices filed with PBGC from the regulations to instructions available on PBGC's website. PBGC generally considers it preferable to describe information to be filed only in the filing instructions, and not in the regulation prescribing the filing, to avoid having two authoritative descriptions of the same requirements and to make it easier for filers to find the information they need in one place.

One commenter expressed concern that the approach of moving information from the rule to instructions will not give interested parties enough notice about changes or the opportunity to comment on recommended changes. PBGC does not agree. Although changes to the forms and instructions need not always go through notice and comment rulemaking under the Administrative Procedure Act, they often would still be open to public comment and reviewed by OMB under the Paperwork Reduction Act (PRA). The PRA requires two sequential public notices to be published in the Federal Register , each with their own comment periods, resulting in a total of 90 days for the public to comment. PBGC posts Paperwork Reduction Act submissions on its website and generally flags material changes to forms and instructions in its regular “What's New” postings. Moving the information to the forms and instructions will allow PBGC to be more flexible in responding to future developments, such as changes in information technology.

The final rule also makes changes to the contents of the notice of insolvency and notice of insolvency benefit level by eliminating outdated information and, consistent with MPRA, by removing references to reorganization in the notice of insolvency regulation. The final rule changes the permissible methods of issuance to alternate payees for the notices in parts 4245 and 4281 to exclude the methods of posting the notice at participants' work sites or publishing the notice in a union newsletter or in a newspaper of general circulation in the area or areas where participants reside. The final rule also adopts the proposed rule's clarifications and other editorial changes to parts 4245 and 4281.

The plan sponsor of a multiemployer plan must apply to PBGC for financial assistance if the plan sponsor determines that the plan's resource benefit level will be below the level of benefits guaranteed by PBGC or that the plan will be unable to pay guaranteed benefits when due for any month during the year. Section 4281.47 of PBGC's duties of plan sponsor regulation requires a plan sponsor to file an initial application with PBGC at the same time that it files a notice of insolvency benefit level. When the plan sponsor determines an inability to pay guaranteed benefits for any month, the plan sponsor must file a recurring application within 15 days after the plan sponsor makes the determination.

To provide PBGC adequate time to review applications for financial assistance, the final rule requires an initial application to be filed no later than 90 days before the first day of the month for which the plan sponsor has determined that the resource benefit level will be below the level of guaranteed benefits. The final rule requires a recurring application to be filed as soon as practicable after the plan sponsor determines the plan will be unable to pay guaranteed benefits when due for a month and makes other editorial changes. The contents of the applications for financial assistance are moved from the regulations to instructions on PBGC's website. One commenter suggested that the final rule require a statement to be added to the annual funding notice when a plan sponsor submits an application for financial assistance to alert participants about the status of the plan. Because the annual funding notice is an ERISA title I disclosure, PBGC does not have the authority to require such a statement. However, as discussed earlier in the preamble, the notice of insolvency and notice of insolvency benefit level contain similar information to notify participants about the solvency of the plan and, under the final rule, are required to be issued by the later of 90 days before the beginning of the insolvency year, or 30 days after the date the insolvency determination is made.

PBGC has determined that this rulemaking is not a “significant regulatory action” under Executive Order 12866 and Executive Order 13771. Accordingly, this final rule is exempt from Executive Order 13771 and OMB has not reviewed the rule under Executive Order 12866.

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 is associated with PBGC's ongoing retrospective review program to identify and ameliorate inconsistencies, inaccuracies, and requirements made irrelevant over time.

Although this is not a significant regulatory action under Executive Order 12866, PBGC has examined the economic implications of this final rule and has concluded that the amendments to the annual actuarial valuation requirements and notice of insolvency and notice of insolvency benefit level will reduce costs for multiemployer plans by approximately $540,400. The analysis is as follows.

PBGC has estimated the value of this final rule for the annual actuarial valuation requirements for plans terminated by mass withdrawal that are not insolvent. PBGC has assumed an annual actuarial valuation cost of $12,000 per plan for plans whose nonforfeitable benefits have a present value of $25 million or less and a cost of $30,000 per plan for plans whose nonforfeitable benefits have a present value in the range of $25 to $50 million. 11 In the year ended September 30, 2018, there were 64 terminated plans that were not insolvent. Of that total, there were 46 plans whose nonforfeitable benefits have a present value of $25 million or less that will be able to use an actuarial valuation for 5 years instead of 3 years for annual savings of approximately $73,600 (46 × $12,000 × .1333 (1/3-1/5)) and 9 plans whose nonforfeitable benefits have a present value in the range of $25 to $50 million that will be able to use an actuarial valuation for 5 years instead of 1 year for annual savings of approximately $216,000 (9 × $30,000 × .8 (1-1/5)). PBGC estimates annual aggregate savings of approximately $289,600 to these plans. In the year ended September 30, 2018, there were 78 insolvent plans. Of that total, there were 14 insolvent plans whose nonforfeitable benefits have a present value exceeding $50 million. As PBGC currently obtains actuarial valuations from these insolvent plans and provides financial assistance for the cost of performing the actuarial valuations, PBGC believes there is no additional cost under this final rule for performing insolvent plan actuarial valuations.

The savings under the final rule are offset by the annual cost of the actuarial valuation and alternative valuation filing requirements. PBGC estimates that each year, approximately 34 plans will file actuarial valuations and approximately 12 plans will file alternative valuation information. As discussed below under the Paperwork Reduction Act analysis, PBGC estimates an annual aggregate hour burden of 20 hours at an estimated dollar equivalent of $1,500 and an annual aggregate cost burden of $8,000.

The annual aggregate savings offset by the annual cost of the filing requirements is $280,100 ($289,600−$1,500−$8,000).

Under the final rule, PBGC expects to receive withdrawal liability information from approximately 140 plans. As discussed below under the Paperwork Reduction Act analysis, PBGC estimates an annual hour burden of 140 hours at an estimated dollar equivalent of $10,500 and an annual cost burden of $56,000.

As discussed below under the Paperwork Reduction Act analysis, PBGC estimates that the annual hour burden of preparing the notice of insolvency and notice of insolvency benefit level without the final rule is approximately 1,320 hours (20 + 1,300) at an estimated dollar equivalent of $99,000 and the annual aggregate cost is approximately $627,400 ($12,000 + $615,400). This estimate is based on an estimated 11 plans required to issue the notice of insolvency and 55 plans required to issue an annual update to the notice of insolvency benefit level. Allowing plans to issue a combined notice and eliminating most of the annual updates to the notice of insolvency benefit level reduces the annual hour burden to 256 hours (16 + 240) at an estimated dollar equivalent of $19,200 and the annual aggregate cost to $380,400 ($10,000 + $370,400), saving plans approximately $326,800 ($99,000−$19,200 + $627,400−$380,400).

The Regulatory Flexibility Act imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the Regulatory Flexibility Act requires that the agency present a regulatory flexibility analysis at the time of the publication of the final rule describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions.

For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations  12 and is consistent with certain requirements in title I of ERISA  13 and the Code, 14 as well as the definition of a small entity that the Department of Labor has used for purposes of the Regulatory Flexibility Act. 15

Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act. PBGC therefore requested comments on the appropriateness of the size standard used in evaluating the impact on small entities of the proposed amendments. PBGC did not receive any such comments.

On the basis of its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that the amendments in this rule will not have a significant economic impact on a substantial number of small entities. Based on data for the 2018 fiscal year, PBGC estimates that only 15 small plans of the approximately 1,400 plans covered by PBGC's multiemployer program will be required to file withdrawal liability information and an actuarial valuation or alternative valuation information under the final rule. While this is not a substantial number of small plans, the final rule provides less burdensome filing requirements for small plans. Most small plans are not required to file actuarial valuations. An estimated 12 of the small plans are insolvent and have nonforfeitable benefits less than $50 million, enabling these plans to file alternative valuation information. In addition, the final rule will reduce administrative burden for preparing notices for terminated plans and insolvent plans, including small plans. An estimated three small plans will be relieved of the burden to prepare and distribute an annual notice of insolvency benefit level update to participants and beneficiaries. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), sections 603 and 604 do not apply.

PBGC is submitting the information requirements under this final rule to the Office of Management and Budget (OMB) under 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 it displays a currently valid OMB control number.

The collection of information in part 4041A is approved under control number 1212-0020 (expires November 30, 2021). PBGC estimates that without the final rule there would be 2,111 notices and responses and that the notice of termination and other requirements in part 4041A would have an annual burden of 69 hours and an annual cost of $50,000.

PBGC estimates that the changes to file withdrawal liability information electronically will have a minimal hour and cost burden as it is expected that the information is easily accessible and that most plans will use documents already prepared containing withdrawal liability information. PBGC estimates that approximately 140 plans will file withdrawal liability information and that it will take each plan sponsor approximately 2 hours to electronically file the information. PBGC further estimates that the filings will be completed by pension fund office staff (50%) and outside attorneys (50%). The total hour burden is approximately 140 hours of pension fund office time at an estimated dollar equivalent of $10,500 (based on an assumed hourly rate of $75 for administrative, clerical, and supervisory time). The total cost burden is approximately $56,000 (based on 140 contracted hours assuming an average hourly rate of $400).

PBGC expects that an estimated 34 plans (23 plans with nonforfeitable benefits that exceed $50 million plus 11 plans with nonforfeitable benefits of $50 million or less) will file actuarial valuations and that it will take each plan 30 minutes to file the information electronically (approximately 17 hours for 34 plans). PBGC expects that an estimated 12 plans receiving financial assistance from PBGC will file alternative valuation information and that it will take each plan 2 hours to file the information electronically (approximately 24 hours for 12 plans). PBGC further estimates that the filings will be completed by pension fund office staff (50%) and outside attorneys (50%). The total estimated hour burden to file the actuarial valuations and to complete and file the alternative valuation information is approximately 20 hours of pension fund office time at an estimated dollar equivalent of $1,500 (based on an assumed hourly rate of $75 for administrative, clerical, and supervisory time). PBGC estimates the total cost burden is $8,000 (based on approximately 20 contracted hours assuming an average hourly rate of $400).

PBGC estimates that with the final rule there will be approximately 2,300 notices and responses each year and that the total annual burden of the collection of information is an hour burden of about 229 hours for pension fund office time (69 + 140 + 20) at an estimated dollar equivalent of $17,175 and a cost burden for work by outside consultants of $114,000 ($50,000 + $56,000 + $8,000).

The collection of information in part 4245 is approved under control number 1212-0033 (expires November 30, 2021). PBGC estimates that only 1 plan will issue new notices of insolvency under part 4245 and that each year there will be 1,038 notices or combined notices issued to participants and beneficiaries, PBGC, and other interested parties. PBGC estimates that without the final rule the annual hour burden would be 20 hours and the annual cost burden would be $12,000. The final rule will reduce the burden by allowing plans to combine the notice of insolvency and the notice of insolvency benefit level and by eliminating most of the annual updates to participants and beneficiaries. PBGC estimates that the final rule will reduce the annual hour burden to 16 hours of pension fund office time at an estimated dollar equivalent of $1,200 and the annual cost burden for work by outside consultants to $10,000.

The collection of information in part 4281 is approved under control number 1212-0032 (expires November 30, 2021). PBGC expects to receive the following notices under part 4281: 1 notice of benefit reduction; 10 notices of insolvency; 55 notices of insolvency benefit level; 10 initial applications for financial assistance; and 300 non-initial applications for financial assistance. PBGC estimates that without the final rule the annual hour burden would be 1,300 hours at an estimated dollar equivalent of $97,500 and the annual cost burden would be $615,400. Under the final rule, most of the annual updates to the notice of insolvency benefit level will be eliminated unless there is a change in benefit level. PBGC estimates the change will reduce the number of plans issuing notices of insolvency benefit level from 55 plans to approximately 5 plans. PBGC estimates that 13,826 notices and applications will be issued annually under part 4281. PBGC estimates that the final rule will reduce the annual hour burden of pension fund office time to 240 hours at an estimated dollar equivalent of $18,000 and the annual cost burden for work by outside consultants to $370,400.

For the reasons given above, PBGC is amending 29 CFR parts 4041A, 4245, and 4281 as follows:

The Captain of the Port Sector Ohio Valley (COTP) is establishing, amending, and updating its current list of recurring special local regulations codified under 33 CFR 100.801 in Table no. 1, for the COTP Ohio Valley zone.

On March 28, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Ohio Valley Annual and Recurring Special Local Regulations Update (84 FR 11688). During the comment period that ended April 12, 2019, zero comments were received.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with these marine events.

The Coast Guard's authority for establishing a special local regulation is contained at 33 U.S.C. 1233. The Coast Guard is amending and updating the special local regulations under 33 CFR part 100 to include the most up to date list of recurring special local regulations for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include marine parades, boat races, swim events, and others. The current list under 33 CFR 100.801 requires amending to provide new information on existing special local regulations, include new special local regulations expected to recur annually or biannually, and to remove special local regulations that are no longer required. Issuing individual regulations for each new special local regulation, amendment, or removal of an existing special local regulation creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring special local regulations.

As noted above, we received zero comments on our NPRM published March 28, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

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

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

The Coast Guard expects the economic impact of this rule to be minimal, and therefore a full regulatory evaluation is unnecessary. This rule establishes special local regulations limiting access to certain areas under 33 CFR 100 within Sector Ohio Valley's AOR. The effect of this rulemaking will not be significant because these special local regulations are limited in scope and duration. Deviation from the special local regulations established through this proposed rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis. Broadcast Notices to Mariners and Local Notices to Mariners will inform the community of these special local regulations so that they may plan accordingly for these short restrictions on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted areas.

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

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the special local regulation areas during periods of enforcement. The special local regulations will not have a significant economic impact on a substantial number of small entities because they are limited in scope and will be in effect for short periods of time. Before the enforcement period, the Coast Guard COTP will issue maritime advisories widely available to waterway users. Deviation from the special local regulations established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of special local regulations related to marine event permits for marine parades, regattas, and other marine events. It is categorically excluded from further review under paragraph L61 of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:

The Postal Service published a notice of proposed rulemaking on March 1, 2019, (84 FR 7005-7010) to amend the DMM in various sections for clarity and consistency in the standards regarding forms of identification.

The Postal Service received 4 formal responses to the proposed rule. Two responses were in agreement with the revisions to provide clarity and consistency regarding forms of identification.

Two responses questioned the proposal to eliminate university identification cards as a form of acceptable photo identification.

Response: The Postal Service has reconsidered its position and will allow U.S. university identification cards as a form of acceptable photo identification for certain retail products and services. Additions to the Proposed Rule are included below in section 608.10.3 and Exhibit 608.10.3.

As discussed in the Proposed Rule, the Postal Service is adding a new section 608.10.0, Forms of Identification. This new section will act as the primary source for consistent standards on forms of acceptable and unacceptable identification. DMM section 608.10.0 will include subsections that: (1) Provide a table of the products and services that require forms of acceptable identification and the number of forms (primary and secondary) required, (2) provide a description of “primary” forms of acceptable identification and include a table of which “primary” forms are acceptable for each product and service, (3) provide a description of “secondary” forms of acceptable identification, and (4) provide examples of forms of unacceptable identification.

Changes to the “primary” forms of acceptable identification will also specify that some forms of foreign identification are accepted, including for establishing Post Office Box service.

The Postal Service is also amending the applicable product and service sections to point to new section 608.10.0. This will remove inconsistent and redundant text from the DMM. This includes amending current section 507.2.1.4a to expressly require a “primary” form of acceptable identification under 608.10.3 when presenting Form 3575, Mail Forwarding Change of Address Order, at a Post Office. Other than requiring a “primary” form of acceptable identification when Form 3575 is presented at a Post Office, the filing methods for a change-of-address will remain the same ( i.e., mail, presenting at a Post Office, or using internet Change of Address (ICOA) at https://moversguide.usps.com ). The Postal Service will also update Form 3575 to reflect this requirement.

In addition, the Postal Service will update Mailing Standards of the United States Postal Service, International Mail Manual (IMM®) and Publication 52, Hazardous, Restricted, and Perishable Mail, under separate cover.

We believe these revisions will ensure clarity and consistency enabling the Postal Service to provide a superb customer experience from sender to receiver.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is amended as follows:

On February 13, 2019 (84 FR 3742), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of a SIP revision addressing the VOC CTG RACT requirements set forth by the CAA for the 2008 8-hour ozone NAAQS for Allegheny County (the 2018 VOC CTG RACT Submission for Allegheny County). The formal SIP revision was submitted by Pennsylvania on behalf of Allegheny County on July 24, 2018.

On July 24, 2018, PADEP submitted a SIP revision for Allegheny County to address the VOC CTG RACT requirements set forth by the CAA for the 2008 8-hour ozone NAAQS. Specifically, the 2018 VOC CTG RACT Submission for Allegheny County includes: (1) A certification that for certain categories of sources, previously-adopted VOC RACT controls in the Allegheny County portion of Pennsylvania's SIP that were approved by EPA under the 1979 1-hour and 1997 8-hour ozone NAAQS continue to be based on the currently available technically and economically feasible controls, and continue to represent RACT for implementation of the 2008 8-hour ozone NAAQS; and (2) a negative declaration that certain CTG sources of VOC do not exist in Allegheny County, PA. This SIP revision does not cover non-CTG sources in Allegheny County. PADEP will address RACT for major sources of NO X and for major non-CTG VOC sources for Allegheny County in another SIP submission.

Allegheny County's Regulations and Statutes, under Allegheny County Article XXI 2105.10, 2105.11, 2105.12, 2105.13, 2105.15, 2105.16, 2105.19, 2105.70, 2105.71, 2105.72., 2105.74, 2105.76, 2105.77, 2105.78, 2105.79, 2105.80, 2105.81, 2105.82, 2105.83, 2015.84, 2105.85, and 2105.86 contain the VOC CTG RACT controls that were implemented and approved into Pennsylvania's SIP under the 1-hour and 1997 8-hour ozone NAAQS. PADEP is certifying that these regulations, all previously approved by EPA into the SIP, continue to meet the RACT requirements for the 2008 8-hour ozone NAAQS for CTG-covered sources of VOCs in Allegheny County, PA. PADEP also submitted a negative declaration for the CTGs that have not been adopted because Allegheny County does not contain the affected source categories. More detailed information on these provisions as well as a detailed summary of EPA's review can be found in the Technical Support Document (TSD) for this action which is available on line at https://www.regulations.gov, Docket number EPA-R03-OAR-2018-0764.

An explanation of the Clean Air Act requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA is approving Pennsylvania's 2018 VOC CTG RACT Submission for Allegheny County on the basis that it demonstrates that existing regulations in the Allegheny County portion of Pennsylvania's SIP represent RACT for the purposes of compliance with the 2008 8-hour ozone standard for all stationary sources of VOCs covered by a CTG issued prior to July 20, 2014.

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

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

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

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

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

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

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

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

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

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

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

In addition, 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 July 1, 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 the 2018 VOC CTG RACT Submission for Allegheny County may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

On February 12, 2019 (84 FR 3387), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed to incorporate low sulfur fuel oil provisions for Allegheny County into the Pennsylvania SIP. These provisions will reduce the amount of sulfur in fuel oils used in combustion units in Allegheny County. The formal SIP revision was submitted by the Allegheny County Health Department (ACHD) through the Pennsylvania Department of Environmental Protection (PADEP) on May 8, 2018.

The SIP revision consists of an amendment to implement the use of low sulfur fuel oils used in combustion units in Allegheny County, adding sampling and testing methods, and amending associated definitions. The SIP revision submittal adds Sections 2104.10 (Commercial Fuel Oil) and 2107.16 (Sulfur in Fuel Oil) of Article XXI to the Pennsylvania SIP and amends, within the SIP, Section 2101.20 (Definitions) of Article XXI.

Section 2104.10 implements low sulfur fuel oil provisions that will reduce the amount of sulfur in fuel oils that are offered for sale, delivered for use, exchanged in trade or permitted to use in Allegheny County, Pennsylvania. Section 2104.10(a) establishes maximum allowable sulfur content for commercial fuel oil, expressed as parts per million (ppm) by weight or percentage by weight, for number 2 and lighter distillate oil to 0.05 percent sulfur content by weight (500 ppm), number 4 residual oil to 0.25 percent sulfur content by weight (2,500 ppm), and 0.5 percent sulfur content by weight (5,000 ppm) for number 5 and number 6 and heavier commercial fuel oils by no later than July 1, 2016. Commercial fuel oil stored by the ultimate consumer in Allegheny County prior to the applicable compliance date may be used after the applicable compliance date if the fuel oil met the applicable maximum allowable sulfur content at the time it was stored. Section 2104.10(c) and (d) of Article XXI establish sampling, testing, recordkeeping, and reporting requirements. Definitions for terminology which relate to reporting and recordkeeping requirements were added and amended. Section 2107.16 of Article XXI establishes the sampling methods that must be used.

Other specific requirements of commercial fuel oil sulfur limits for combustion units in Allegheny County and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No adverse public comments were received on the NPRM. One positive comment was received.

EPA is approving Pennsylvania's May 8, 2018 SIP submittal regarding sulfur limits in fuel oil for combustion units in Allegheny County as a revision to the Pennsylvania SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Allegheny County's rules regarding sulfur content in commercial fuel oils discussed in Sections I and II of this action. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

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

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

In addition, 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 July 1, 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 which limits the sulfur content in fuel oil used by combustion units in Allegheny County may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows: