Need for Correction

On July 9, 2019 (84 FR 32607), the Rural Utilities Services (RUS) issued a final rule entitled “Streamlining Electric Program Procedures,” to revise several regulations to streamline its procedures for Electric Program borrowers, including its loan application requirements, approval of work plans and load forecasts, use of approved contracts and system design procedures.

Inadvertently, revisions were made to the entire paragraph (c) of section 1717.856, which resulted in eliminating paragraphs (c)(1) through (4) instead of revising the introductory text only of paragraph (c). This document corrects the final regulation to add those portions that were removed by mistake.

On February 12, 2019 (84 FR 3351), USAID issued a proposed rule to rescind part 203 of title 22 of the Code of Federal Regulations (CFR) (22 CFR part 203) to streamline the registration process for PVOs. Effective upon the publication of this final rule, PVOs would no longer be required to register with USAID to compete for funding, with the exception of organizations that apply for the Limited Excess-Property Program (LEPP), the Ocean-Freight Reimbursement Program (OFR), or to other Federal Departments and Agencies under Section 607(a) of the Foreign Assistance Act (FAA). Applicants to the LEPP, the OFR, and for assistance under Section 607(a) of the FAA must complete and submit to USAID a self-certification form to indicate they qualify as a PVO. The self-certification form, which an authorized representative of the applicant organization must sign, requires that a PVO confirm whether it is registered as a U.S.-based organization or an international PVO. Rescission of 22 CFR part 203 is expected to reduce the burden on the public significantly; produce a total estimated annual cost savings of $779,406 to USAID; and offer significant savings for the PVO community, projected to range from approximately $2 million to $11 million per year.

USAID received one set of comments from an individual in response to the proposed rule. A discussion of these comments follows:

The commenter sought clarification on the rule and the rulemaking process, in addition to the laws associated with the registration of PVOs. The three USAID programs that require registration because of statute are the LEPP, the OFR, and applications to other U.S. Government Departments and Agencies that seek to provide foreign assistance in accordance with Section 607(a) of the FAA. The statute is silent on the methodology for registration. While 22 CFR part 203 details a specific process, USAID has determined it is duplicative of pre-award assessments and due-diligence requirements the Agency already undertakes with all prospective awardees. Maintaining both sets of requirements imposes a significant cost burden on PVOs (and PVOs only) to obtain and maintain registration, a process largely duplicated if a PVO is considered for an award. Replacing 22 CFR part 203 with a legally compliant, simplified self-certification would streamline the process significantly. USAID is updating this process not because of changes in law or new legal requirements, but to reduce costs and eliminate unnecessary regulation. Only PVOs participating in the three specific programs mentioned above would have to self-certify, and the Bureaus and Independent Offices within USAID that manage these programs would provide guidance as necessary as part of implementing them. Maintenance of a PVO registry is not necessary to implement these programs. In addition, no law requires maintaining a database of PVOs, which is duplicative of the role private rating organizations now play. While different from the focus of the PVO-registration program, initially established to help achieve USAID's international-development mission, private rating organizations offer the transparency on service organizations that the PVO-registration process had also provided, although that was not the purpose of USAID's PVO-registration program.

USAID published the proposed rule on February 12, 2019, and issuance of this final rule serves as USAID's notification to, and request for, input from the public on the streamlined registration process for PVOs.

USAID is issuing this final rule to rescind 22 CFR part 203, which codified the rules for PVO registration with USAID and provided the registration process for PVOs, including the conditions for registration and documentation required to be submitted to USAID to complete a registration, as well as detailing the annual renewals and termination processes.

USAID has rescinded 22 CFR part 203 because the process to register PVOs is no longer needed for the majority of programs open to PVOs across the Agency. Therefore, the Agency has streamlined it to apply only to programs that require registration by statute (LEPP, OFR, and applications to other U.S. Government Departments and Agencies that seek to provide foreign assistance in accordance with Section 607(a) of the FAA). Combined, these programs serve fewer than 50 organizations.

USAID initially established its process to register PVOs to ensure an organization met the definition of a PVO and specific organizational standards. Today, USAID examines all potential partner organizations, PVOs or otherwise, via a pre-award assessment managed by warranted USAID Agreement/Contract Officers in accordance with Agency policy (Automated Directives System [ADS] Chapter 303: Grants and Cooperative Agreements to Non-Governmental Organizations; and ADS Chapter 302: USAID Direct Contracting), and as required by relevant regulations ( i.e., 2 CFR 200.205 for assistance, and 48 CFR part 9 for contracts). The due-diligence process for registering PVOs under 22 CFR part 203 is duplicative of these pre-award assessments, and organizations spend a substantial amount of time and money to obtain and maintain registration. Finally, USAID's PVO registration has historically played the role that private rating organizations now play—publishing data on PVOs and other types of non-governmental organizations. The extensive information publicly available through other providers has eliminated the Agency's need to produce information on the sector through the maintenance and publication of a registry.

Under E.O. 12866, USAID must determine whether a regulatory action is “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). USAID has determined that 22 CFR part 203 is not an “economically significant regulatory action” under Section 3(f)(1) of E.O. 12866. This final rule is not a major rule under Section 804 of Title 5 of the United States Code (U.S.C.).

E.O.s 12866 and 13563 direct Federal Departments and Agencies to assess all the costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Streamlining the duplicative Agency-wide registration program would eliminate thousands of labor hours and save hundreds of thousands of dollars for USAID and the estimated 550 PVOs currently registered with the Agency.

USAID uses a contractor to manage the PVO-registration process, which costs the Agency approximately $700,000 per year. In addition, internal USAID annual labor costs related to the registration process amount to $79,406 in burdened salary and benefit expenses (50 percent of a General Schedule [GS]-13 Full-Time Equivalent [FTE]). With this deregulation, USAID anticipates saving $779,406 in Federal Government costs per year.

Moreover, USAID estimates that the deregulation would generate significant cost-savings for affected PVOs. USAID recently surveyed all 550 PVO registrants to quantify the burden associated with the registration process. Within the past ten years, the number of PVOs registered with USAID on an annual basis has been consistent, ranging from 550 to 553 PVOs per year. Based on the results of the survey, USAID estimates that all 550 PVO registrants spent a total of 4,378 hours per year to prepare and file the registration forms.

Using market research, USAID estimates that the burdened labor cost for PVO staff to conduct tasks related to registration ranges from $40 to $80 per hour. 1 Applying those rates to the total 4,378 personnel hours yields an estimated cost that ranges from $175,120 to $350,240 for PVO staff to register.

In addition, with rescission of the rule, USAID concludes that PVOs would achieve significant further cost-savings, because a component of the registration process is the requirement to conduct an external financial audit. USAID estimated the total number of external audits conducted only for the purposes of registering as a PVO, but not used because the organization did not receive an award from USAID, range from 183 to 367. Based on market research, 2 past experience, and consultations with registered PVOs, the average cost of an independent audit ranges from $10,000 to $30,000. USAID then calculated a low estimate and high estimate of cost-savings. For the high estimate, USAID applied the rate of $30,000 to 367 registrants (two-thirds of the 550 total registrants) that do not receive an award. This yields an annual total of $11,010,000 in “unfruitful” expenses avoided. For the low estimate, we applied the $10,000 rate as the audit cost, and added the assumption that half of registrants without awards would have procured financial audits even in the absence of the rule. Multiplying $10,000 by 183 (one-third of the 550 total registrants) yields a total of $1,830,000 for our low-cost estimate of cost-savings associated with avoided audit expenses. When estimates for PVO staff time and financial audits are combined, the cost savings for affected PVOs ranges from $2,005,120 to $11,360,240. When added to the expected costs internal to USAID of $779,406, the annual total of incremental cost savings as a result of the rescission ranges from $2,784,526 to $12,139,646. Therefore, the rescission of our PVO-registration rule would benefits USAID and our PVOs by streamlining processes and achieving significant cost-savings.

This rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost-savings of this rule appear in the rule's economic analysis.

Because the rescission of this regulation removes, rather than imposes, the collection of information, USAID certifies that the rescission would not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act (44 U.S.C. 3507) applies to this rule, because it removes information-collection requirements formerly approved by OMB. Rescission of this rule would reduce paperwork significantly and eliminate information-collection requirements on the 550 PVOs that currently register with the Agency. USAID collects information from all registered PVOs as part of the registration requirement, such as financial data and a costly external financial audit, to determine whether the PVO meets the conditions of registration. Under the revised approach, only organizations that apply for the Agency's LEPP or OFR, or to other U.S. Government Departments and Agencies that seek to provide foreign assistance (about 50 organizations in total) would have to certify they meet USAID's PVO requirements through the new, streamlined certification process described earlier. USAID would not collect any other data or demand extra financial audits from these organizations.

USAID previously collected information for to register PVOs under the OMB-approved AID Form 1550-2 (OMB Approval Number 0412-0035), but inadvertently operated in non-compliance with the PRA when OMB approval of this form expired, and USAID did not seek extension of the OMB approval when the Agency moved to an on-line system for PVO registration. USAID's online PVO-registration system required that PVOs provide the same information requested on AID Form 1550-2, including financial data. As such, the public-reporting burden for collection of information remained the same under the on-line system.

USAID is issuing this deregulatory action to remove an unneeded hurdle to doing business with the Agency that imposes unnecessary and excessive costs on the private sector with no value to the Government. The rescinded rule originally called for the collection of information, such as a company's make-up of volunteers—since obviated once statutory changes removed the volunteer requirement. Apart from that requirement, statutory references to the registration of PVOs (such as those in Sections 123 or 607 of the FAA) provide no further guidance or requirements to the Agency on what such registration should entail. By rescinding this rule, the Agency would be free to simplify and streamline registration to remove barriers that impose expenses on smaller organizations that wish to compete for USAID funds.

USAID also conducted surveys of the primary stakeholders to the registration process—that of Agency's internal stakeholders and the PVO community. Surveys of registered PVOs in 2012 and 2017 showed that the PVO community did not see significant value in the registration program delineated by 22 CFR part 203, and internal stakeholders for the Agency determined that the information collected in accordance with 22 CFR 203 served no purpose for the Agency. These findings contributed to the decision to remove both the registration program and the rule that required such a rigorous registration process. Additionally, USAID does not plan to replace the current rule with any other.

For the LEPP, the OFR, and PVOs that apply to other U.S. Government Departments and Agencies that are seeking to provide foreign assistance under Section 607(a) of the FAA, all of which still require registration because of legislative requirements, as provided above, the Agency has developed a simplified registration process as part of the application process.

Purpose: The USPTO revises the rules in parts 2 and 7 of title 37 of the Code of Federal Regulations to require electronic filing through the USPTO's Trademark Electronic Application System (TEAS) of all trademark applications based on section 1 and/or section 44 of the Trademark Act (Act), 15 U.S.C. 1051, 1126, and submissions filed with the USPTO concerning applications or registrations. These submissions include, for example, responses to Office actions, registration maintenance filings, international applications, subsequent designations, and direct filings with the USPTO relating to extensions of protection through the international registration system. In addition, this rulemaking requires the designation of an email address for receiving USPTO correspondence concerning these submissions.

The requirement to file an initial application through TEAS does not apply to applications based on section 66(a) of the Act, 15 U.S.C. 1141f, because these applications are initially filed with the International Bureau (IB) of the World Intellectual Property Organization and subsequently transmitted electronically to the USPTO. However, section 66(a) applicants and registrants are required to electronically file all subsequent submissions concerning their applications or registrations and to designate an email address for receiving USPTO correspondence. This rulemaking does not encompass electronic filing of submissions made to the Trademark Trial and Appeal Board (TTAB) in ex parte or inter partes proceedings. Such submissions are currently required to be filed through the USPTO's Electronic System for Trademark Trials and Appeals (ESTTA).

This rule is intended to maximize end-to-end electronic processing of applications and related submissions, as well as registration maintenance filings. Achieving complete end-to-end electronic processing of all trademark submissions is an IT objective of the USPTO. End-to-end electronic processing means that an application and all application- and registration-related submissions are filed and processed electronically, and any related correspondence between the USPTO and the relevant party is conducted entirely electronically. Thus, an application that is processed electronically end to end would be filed through TEAS, and all submissions related to the application, such as voluntary amendments, responses to Office actions, or allegations of use, would also be filed through TEAS. With this change, outgoing USPTO correspondence regarding the application will be sent by email. Likewise, all submissions related to a registration must be filed through TEAS and outgoing USPTO correspondence regarding the registration will be sent by email.

Although more than 99% of applications under section 1 or section 44 are now filed electronically, just under 88% are currently prosecuted electronically from end to end. This means that approximately 12% of these filings still involve paper processing. Prior reductions in the filing fees for electronic submissions resulted in almost 100% of new applications being filed electronically, but have not achieved complete end-to-end electronic processing. By mandating electronic filing of trademark applications and submissions concerning applications or registrations through TEAS, the amended rules will reduce paper processing to an absolute minimum and thus maximize end-to-end electronic processing.

End-to-end electronic processing of all applications, related correspondence, statutorily required registration maintenance submissions, and other submissions will benefit trademark customers and increase the USPTO's administrative efficiency by facilitating electronic file management, optimizing workflow processes, and reducing processing errors. Paper submissions hinder efficiency and accuracy and are more costly to process than electronic submissions because they require manual uploading of scanned copies of the documents into the USPTO electronic records system and manual data entry of information in the documents. Electronic submissions through TEAS, on the other hand, generally do not require manual processing and are automatically categorized, labeled, and uploaded directly into an electronic file in the USPTO electronic records system for review by USPTO employees and the public. If a TEAS submission contains amendments or other changes to the information in the record, often those amendments and changes are automatically entered into the electronic records system. Furthermore, TEAS submissions are more likely to include all necessary information because the USPTO can update its forms to specifically tailor the requirements for a particular submission and require that the information be validated prior to submission. Consequently, preparing and submitting an application or related document, or a registration maintenance filing, through TEAS is likely to result in a more complete submission and take less time than preparing and mailing the paper equivalent. Thus, TEAS submissions help ensure more complete filings, expedite processing, shorten pendency, minimize manual data entry and potential data-entry errors, and eliminate the potential for lost or missing papers.

This rule also requires the designation of an email address for receiving USPTO correspondence concerning these submissions, which is either that of the applicant or registrant, if unrepresented, or an authorized attorney, if one has been appointed. Currently, in order to receive a filing date for a new application under section 1 or section 44, the USPTO requires, among other things, that the applicant designate an “address for correspondence.” 37 CFR 2.21(a)(2). Applicants who filed using the TEAS Plus or TEAS Reduced Fee (TEAS RF) filing options have been required to designate an email address for correspondence, while those who filed on paper or through the regular TEAS application were permitted to designate a postal address. This rule requires applicants and registrants, and parties to a proceeding before the TTAB, to provide and maintain an email address for correspondence. The requirement to designate an email address for receiving USPTO correspondence benefits the USPTO and its customers by reducing costs and increasing efficiency. Email correspondence can be sent, received, and processed faster than paper correspondence, which must be printed, collated, scanned, and uploaded to the electronic records system, and mailed domestically or internationally, at greater expense. Under this rule, applicants and registrants, and parties to a proceeding before the TTAB, are also required to provide and maintain a postal address. The domicile address specified for an applicant, registrant, or party to a proceeding will be treated by the Office as the postal address for the applicant, registrant, or party. In the rare circumstance where mail cannot be delivered to its domicile address, the applicant, registrant, or party may request to designate a postal address where mail can be delivered.

A qualified practitioner representing an applicant, registrant, or party also is required to provide and maintain a postal address. This requirement ensures the USPTO's ability to contact the applicant, registrant, party, or practitioner by mail in certain limited circumstances, such as when an appointed practitioner is suspended or excluded from practice before the USPTO and is no longer the correspondent, or when the Office sends a physical registration certificate.

Previous Initiatives to Increase End-to-End Electronic Processing: The USPTO previously amended its rules to encourage electronic filing through TEAS and email communication by establishing the TEAS Plus and TEAS RF filing options for applications based on section 1 and/or section 44. See 37 CFR 2.6. These filing options have lower application fees than a regular TEAS application, but, unlike a regular TEAS application, they require the applicant to (1) provide, authorize, and maintain an email address for receiving USPTO correspondence regarding the application and (2) file certain application-related submissions through TEAS. See 37 CFR 2.22, 2.23. If the applicant does not fulfill these requirements, the applicant must pay an additional processing fee. See 37 CFR 2.6, 2.22, 2.23.

Despite these additional requirements, and the potential additional processing fee for noncompliance, the TEAS RF filing option is now the most popular filing option among USPTO customers, followed by TEAS Plus. These two filing options currently account for nearly 99% of all new trademark applications filed under section 1 and/or section 44, suggesting that applicants are comfortable with filing and communicating with the USPTO electronically.

Furthermore, in January 2017, the USPTO revised its rules to increase fees for paper filings to bring the fees nearer to the cost of processing the filings and encourage customers to use lower-cost electronic options. As a result of these rule changes, the USPTO is now processing nearly 88% of applications filed under section 1 and/or section 44 electronically end to end.

(1) New Applications. Under this rule, § 2.21 is amended to require applicants to file electronically, through TEAS, any trademark, service mark, certification mark, collective membership mark, or collective trademark or service mark application for registration on the Principal or Supplemental Register under section 1 and/or section 44. As noted above, the requirement to file an application through TEAS does not apply to applications based on section 66(a) because they are initially processed by the IB and subsequently transmitted electronically to the USPTO.

The TEAS RF filing option, which required applicants to maintain an email address for receiving USPTO correspondence regarding the application and to file the application and related submissions through TEAS, will become the default, or “standard,” filing option and will be renamed “TEAS Standard” on the effective date of this rule. The filing fee for this option remains at $275 per class. The TEAS Plus option also remains at $225 per class, while the TEAS option under 37 CFR 2.6(a)(1)(ii) at $400 per class is eliminated. However, the per-class fee of $400 in § 2.6(a)(1)(ii), which is the current filing fee for applications under section 66(a), is retained as the filing fee for such applications.

Under this rule, an application filed on paper under section 1 and/or section 44 will not receive a filing date unless it falls under one of the limited exceptions discussed below.

(2) Additional Processing Fee. Previously, the additional processing fee under § 2.6(a)(1)(v) applied to TEAS Plus and TEAS RF applications that failed to meet the requirements under § 2.22(a) or § 2.23(a) at filing, and to TEAS Plus and TEAS RF applications when certain submissions were not filed through TEAS or when the applicant failed to maintain a valid email address for receipt of communications from the Office. Under this rule, the processing fee applies only to TEAS Plus applications that fail to meet the amended filing requirements under § 2.22(a). All applicants and registrants, except those specifically exempted, are now required to electronically file any submissions in connection with an application or registration and to designate and maintain an email address for correspondence. A TEAS Plus or TEAS Standard (previously TEAS RF) applicant who meets the amended filing requirements, but thereafter seeks acceptance of a submission filed on paper, pursuant to new § 2.147, or a waiver of the requirement to file such submissions electronically, must then pay the relevant paper filing fee and the paper petition fee for any submission filed on paper.

(3) Submissions Required to Be Filed Through TEAS. This rule amends § 2.23 to also require that correspondence concerning a trademark application or registration under section 1, section 44, or section 66(a) be filed through TEAS, except for correspondence required to be submitted to the Assignment Recordation Branch or through ESTTA. Although all correspondence is required to be filed electronically, the USPTO recognizes that there may be certain circumstances when a paper filing is necessary. For those instances, the Office codifies a new regulatory section, at 37 CFR 2.147, which sets out a procedure for requesting acceptance of paper submissions under particular circumstances. This section is discussed below in the explanation of the limited exceptions to the amended requirements.

Although this rule requires correspondence to be filed through TEAS, current USPTO practice regarding informal communications is unchanged. Thus, for example, an applicant or an applicant's attorney may still conduct informal communications with an examining attorney regarding a particular application by telephone or email. See Trademark Manual of Examining Procedure (TMEP) § 709.05.

(4) Email Correspondence Address. This rule amends §§ 2.21, 2.23, and 7.4 to require that applicants and registrants provide a valid email address for themselves and any appointed practitioner for receipt of correspondence from the USPTO. Thus, except in the case of nationals from exempted treaty countries, as discussed below, the USPTO's required method of corresponding with applicants and registrants is via Office actions and notices sent to the designated email address. If the email transmission were to fail because, for example, the applicant or registrant provided an incorrect email address, the recipient's mailbox is full, or the email provider has a service outage, the USPTO will not attempt to contact the correspondent designated pursuant to § 2.18(a) by other means. Instead, pursuant to amended § 2.23(d), the applicant or registrant is responsible for monitoring the status of the application or registration using the USPTO's Trademark Status and Document Retrieval (TSDR) system, which displays any USPTO Office actions and notices that have issued, any submissions properly filed with the USPTO, and any other actions taken by the USPTO.

As noted above, applications under section 66(a) are processed and transmitted electronically to the USPTO from the IB. These applications do not include an email address for receiving USPTO correspondence, and the USPTO does not anticipate the IB will update its systems to include email addresses prior to implementation of this rule. In addition, only 2.9% of Madrid applications were approved for publication upon first action in fiscal year 2017. Therefore, the USPTO believes it is appropriate to waive the requirement for an email address prior to publication in this limited situation and until such time as the IB's systems are updated. However, Madrid applicants are subject to the requirements under §§ 2.23(b) and 2.32(a)(2), (4) to file all submissions electronically and to provide an email address on such submissions for receipt of correspondence from the USPTO.

Under § 2.18(c), an applicant, registrant, or party to a proceeding must maintain a current and accurate correspondence address for itself and its qualified practitioner, if one is designated.

(5) Changes from the Proposed Rule. The USPTO further amends § 2.22(a) by revising amended paragraph (a)(3) to limit the requirement for the names and citizenship of general partners to domestic partnerships and to add a requirement for the names and citizenship of active members of domestic joint ventures. These changes are added for consistency with current §§ 2.32(a)(3)(iii) and (iv). The USPTO also revises § 2.22(a)(4) to set out the requirements for sole proprietorships in order to further clarify the requirements for TEAS Plus applicants at filing.

The USPTO amends § 2.32(a)(3)(i) to require the applicant's legal entity type in addition to its citizenship and adds § 2.32(a)(1)(v) to require the state of organization of a sole proprietorship and the name and citizenship of the sole proprietor. These requirements are added for consistency with current § 2.22(a)(2) and new § 2.22(a)(4).

The USPTO further amends § 2.56(a) to include cross references to § 2.160 and § 7.36 and also amends § 2.56(b) and (c) to update these paragraphs with criteria for electronic submissions and better conform them to existing requirements in the Trademark Act and precedential case law for specimens of use, including that web pages must show the URL and access or print date. The amendments also more clearly conform the rule language to the statutory requirements for use in commerce by requiring that the specimen show use of the mark placed on the goods, on containers or packaging for the goods, or on labels or tags affixed to the goods.

The USPTO further amends § 2.147(b)(2) to require a copy of the previously mailed paper submission since the USPTO will not process the original submission and will destroy it after 90 days. This requirement is analogous to the requirements in §§ 2.64(a)(2)(i), 2.197(b)(2), and 2.198(e)(2) for a copy of previously submitted correspondence in order to establish timeliness.

The USPTO further amends § 7.25 to delete the proposed cross reference to § 2.198 and to delete the cross reference to § 2.197 since these sections could be applicable to extensions of protection in some circumstances.

Limited Exceptions for Paper Submissions: As discussed below, the USPTO will permit paper submissions of applications and correspondence in limited situations. This rule establishes a process for filing paper submissions in such situations.

(1) International Agreements: The United States (U.S.) is a member of both the Trademark Law Treaty (TLT) and the subsequent Singapore Treaty on the Law of Trademarks (STLT), which treaties constitute two separate international instruments that may be ratified or acceded to independently by member countries. One provision of TLT mandates that its members accept paper trademark applications from nationals of other TLT members. STLT, on the other hand, allows its members to choose the means of transmittal of communications, whether on paper, in electronic form, or in any other form. This incongruity between the treaties was addressed in Article 27(2) of STLT, which provides that any Contracting Party to both STLT and TLT shall continue to apply TLT in its relations with Contracting Parties to TLT that are not parties to STLT. Accordingly, nationals of TLT members that are not also members of STLT at the time of submission of the relevant document to the USPTO are not required to file applications electronically or receive communications from the USPTO via email, nor are they required to submit a petition with a paper filing, until such time as their country joins STLT. Currently, the USPTO must accept paper trademark applications from nationals of the following countries: Bahrain, Bosnia and Herzegovina, Burkina Faso, Chile, Colombia, Costa Rica, Cyprus, Czech Republic, Dominican Republic, Egypt, El Salvador, Guatemala, Guinea, Honduras, Hungary, Indonesia, Monaco, Montenegro, Morocco, Nicaragua, Oman, Panama, Slovenia, Sri Lanka, Trinidad and Tobago, Turkey, and Uzbekistan.

(2) Specimens for Scent, Flavor, or Other Non-Traditional Marks: This rule allows for the separate submission of physical specimens when it is not possible to submit the specimens using TEAS because of the nature of the mark. For example, if the application or registration is for a scent or flavor mark, because the required specimen must show use, or continued use, of the flavor or scent, it cannot be uploaded electronically. In that situation, the applicant may submit the application through TEAS and indicate that it is mailing the specimen to the USPTO. In these circumstances, all other requirements of this rulemaking apply. However, the applicant or registrant is not required to submit a petition requesting acceptance of a specimen filed on paper or waiver of the requirement to file the specimen electronically. This exception does not apply to specimens for sound marks, which can be attached to the TEAS form as an electronic file.

(3) Petition to Accept a Paper Submission: This rule includes a new regulatory section titled “Petition to the Director to accept a paper submission,” which is codified at § 2.147. Under this section, an applicant or registrant may file a petition to the Director requesting acceptance of a submission filed on paper in three situations.

Under new § 2.147(a), the petition may be submitted if TEAS is unavailable on the date of the deadline for the submission specified in a regulation in parts 2 or 7 of this chapter or in a section of the Act. Under this provision, the applicant or registrant is required to submit proof that TEAS was unavailable because a technical problem, on either the USPTO's part or the user's part, prevented the user from submitting the document electronically. Generally, if users receive an error message the first time they attempt to submit a filing electronically, the USPTO expects that they will try to resolve any failures due to user error. In situations where the inability to submit the filing was not due to user error, the USPTO encourages users to try to submit the document again electronically before resorting to the paper petition process.

The second scenario applies to the specific documents with statutory deadlines identified in new § 2.147(b) when such a document was timely submitted on paper, but not examined by the Office because it was not submitted electronically in accordance with § 2.21(a) or § 2.23(a). The Office will issue a notice informing the applicant, registrant, or petitioner for cancellation that the paper submission will not be processed or examined because it was not submitted electronically. The applicant, registrant, or party may file a petition to request that the timely filed paper submission be accepted only if the applicant, registrant, or party is unable to timely resubmit the document electronically by the statutory deadline.

Finally, under new § 2.147(c), when an applicant or registrant does not meet the requirements under § 2.147(a) or (b) for requesting acceptance of the paper submission, the applicant or registrant may petition the Director under § 2.146(a)(5), requesting a waiver of § 2.21(a) or § 2.23(a) and documenting the nature of the extraordinary situation that prevented the party from submitting the correspondence electronically. The Office addresses petitions under § 2.146(a)(5) on a case-by-case basis because the assessment of what would qualify as an extraordinary situation depends on the specific facts and evidence presented.

With respect to USPTO technical problems that render TEAS unavailable, the USPTO intends to continue to follow its current approach. For example, when verifiable issues with USPTO systems prevent electronic filing for extended periods, the Office has waived non-statutory deadlines on petition, such as the deadline for response to a post-registration Office action, as well as petition fees. Such measures help avoid negatively impacting applicants and registrants in the event of USPTO technical problems. Because the impact of technical problems varies depending on the specific facts, the USPTO cannot provide advance guidance about all possibilities or specific measures the USPTO may take in the future. Moreover, applicants and registrants must be mindful of the fact that statutory deadlines, such as those for submission of a statement of use or an affidavit or declaration of use under section 8 or section 71, cannot be waived. The USPTO strongly encourages applicants and registrants to ensure that they are able to timely submit the relevant document by mail using the certificate of mailing or Priority Mail procedures in § 2.197 and § 2.198 in the event of an unexpected technical problem to avoid missing a statutory deadline.

Furthermore, the inability to submit an application or submission electronically due to USPTO regularly scheduled system maintenance generally does not qualify for relief under new § 2.147 or as an extraordinary situation under § 2.146. The USPTO routinely performs system maintenance between midnight and 5:30 a.m. Eastern Time on weeknights and at all hours on Saturdays, Sundays, and holidays. Advance notice of the maintenance is generally posted on the USPTO Systems Status and Availability page on the USPTO website.

(4) Postal-service Interruptions or Emergencies. The Office intends to continue the approach it has employed when there has been a postal-service interruption or emergency related to a natural disaster. In such events, the Office has generally waived certain requirements of the rules for those in the affected area, such as non-statutory deadlines and petition fees. The Office also issues notices regarding the specific procedures to be followed in such circumstances and posts the notices on the “Operating Status” page of the USPTO website.

(5) Applications and Post-Registration Maintenance Documents Filed Prior to the Effective Date of this Rule. Paper, TEAS Regular, and Madrid applications filed prior to the effective date of this rule are not subject to the requirements to provide an email address for the applicant and its attorney, if represented, or to communicate with the USPTO electronically. Such applications are “grandfathered” under the prior rules until the application registers or is abandoned and cannot be revived or reinstated pursuant to 37 CFR 2.64, 2.66, or 2.146. Similarly, post-registration maintenance documents submitted prior to the effective date of the rule are not subject to the requirements and are grandfathered under the prior rules until the document has been accepted or the registration has been cancelled or expired and cannot be revived or reinstated pursuant to 37 CFR 2.64, 2.66, or 2.146.

However, on the effective date of this rule, because all new applications and post-registration maintenance documents are required to be filed electronically through TEAS, all TEAS forms will be updated to require the applicant's or registrant's email address and the email address of applicant's or registrant's attorney, if represented. Therefore, if a grandfathered applicant or registrant files a TEAS document after the effective date of this rule, the TEAS form will not validate for submission without the email address(es) being provided. Furthermore, if such an applicant, registrant, or attorney chooses to correspond electronically with the Office using one of the TEAS forms, the USPTO will presume that email communication is authorized and will send all future correspondence to the email address of the applicant, registrant, or attorney, as appropriate.

Applicants who filed an application prior to the effective date of the rule using the TEAS RF or TEAS Plus option are currently subject to the requirement to correspond electronically with the USPTO, as well as all the other requirements in current § 2.22(a)-(b) and § 2.23(a)-(b). After the effective date of this rule, if a TEAS Plus or TEAS RF applicant submits a response to an Office action or other document on paper, the applicant will no longer be charged the additional processing fee under prior § 2.22(c) or § 2.23(c), but must submit a petition requesting acceptance of the paper filing under § 2.146 or § 2.147, as appropriate.

Requirements for Paper Submissions: Because paper submissions are permitted in the limited circumstances described above, the current rules addressing the requirements for paper submissions are retained and modified, as necessary, for consistency with the other revisions in this rulemaking. In addition, the rules governing the certificate-of-mailing and Priority Mail Express® procedures, 37 CFR 2.197 and 2.198, are amended to make filing with a certificate of mailing or via Priority Mail Express® available for all submissions, including new applications, on the rare occasions when filing on paper is permitted. This rule also simplifies how the filing date of a submission utilizing these procedures is determined. Streamlining the requirements for filing with a certificate of mailing or via Priority Mail Express® provides greater clarity to parties who seek to use these procedures and make the rules easier to administer for the Office. Although the certificate-of-mailing and Priority Mail Express® procedures are retained, facsimile transmissions, which are currently permitted for certain types of trademark correspondence, are not permitted under this rule for any applications or submissions. Continuing to accept fax transmissions would be counterproductive to maximizing end-to-end electronic processing because such submissions require manual processing similar to paper submissions.

The USPTO published a proposed rule on May 30, 2018, at 83 FR 24701, soliciting comments on the proposed amendments. In response, the USPTO received comments from four groups and ten individual commenters, representing law firms, organizations, individuals, and other interested parties. Some commenters expressed general support for the amendments, while raising concerns or providing suggestions about particular provisions. Other commenters objected to the amendments mandating electronic filing because of concerns about the stability and usability of the USPTO's current electronic filing systems or the possibility that some parties may not have adequate access to the internet. In addition, some commenters objected to the requirement that an email address be provided for correspondence, because of concerns that this would be burdensome to applicants or that the public availability of email addresses will be misused by third parties engaging in scams or unwanted solicitations. Similar or related comments have been grouped together and summarized below, followed by the USPTO's responses. All comments are posted on the USPTO's website at https://www.uspto.gov/trademark/trademark-updates-and-announcements/comments-proposed-rulemaking-related-changes-trademark.

Comment: Several commenters objected to the requirement to file submissions electronically because they believe it will adversely affect parties who do not have adequate internet access or are otherwise unable to file electronically.

Response: The USPTO appreciates the concerns raised in these comments and has given them careful consideration. As noted above, more than 99% of all initial applications based on section 1 and/or section 44 of the Act are now filed electronically. For example, in fiscal year 2018, a total of 468,926 applications were filed, with only 144 applications filed on paper. Accordingly, the USPTO has determined that, as a general matter, the requirement to file all submissions electronically would not be impracticable or burdensome for the USPTO's customers, most of whom already file electronically.

Customers who do not have personal access to the internet have the option to use the internet at one of the 85 Patent and Trademark Resource Centers (PTRC) around the U.S. to electronically file submissions with the USPTO. A PTRC is part of a nationwide network of public, state, and academic libraries designated by the USPTO to support the public with federal trademark- and patent-filing assistance. Although PTRC representatives are not attorneys and cannot provide legal advice, they can provide access to USPTO resources and explain the application process and fee schedule. Public libraries provide another resource for parties without internet access. According to the American Library Association Fact Sheet 26, “Internet Access and Digital Holdings in Libraries,” 98% of libraries offer free public internet access and 76% of libraries assist patrons in using online government programs and services ( http://www.ala.org/tools/libfactsheets/alalibraryfactsheet26; accessed Sept. 24, 2018). Applicants, registrants, or parties also have the option to hire an attorney to file electronically on their behalf. Finally, if an extraordinary situation requires a particular applicant, registrant, or party to file on paper, the rule allows such submissions to be considered on petition by the USPTO on a case-by-case basis.

Comment: A commenter suggested that the USPTO has already sufficiently advanced its objective of electronic filing by increasing the fees associated with paper filing.

Response: As noted above, the USPTO previously revised its rules to increase fees for paper filings to bring the fees nearer to the cost of processing the filings and to encourage customers to use lower-cost electronic options. Despite these fee increases, approximately 12% of applications and registrations under section 1 and/or section 44 of the Act still involve some paper processing. Fee increases have not been effective in eliminating the volume of non-application paper submissions. Therefore, the USPTO has determined that mandatory electronic filing is necessary to attain, as closely as possible, its goal of end-to-end electronic processing.

Comment: The USPTO received several comments regarding its electronic systems. Some commenters expressed concerns that the USPTO's current electronic systems, including the payment system, are not sufficiently reliable to support a mandate of electronic filing, noting that removing the paper filing option eliminates a failsafe way to file if the internet or the electronic filing system is unavailable. Other commenters suggested that the usability of TEAS forms should be improved and stated that TEAS currently lacks forms to address all filing situations. Some commenters noted that TEAS sometimes will not allow submissions due to erroneous status information in the USPTO's electronic record. Relatedly, a commenter urged that any rulemaking that would remove the paper filing option should be accompanied by the provision of a “none of the above” TEAS form to address the circumstances when the internet or TEAS is unavailable, and that every TEAS form should include a “miscellaneous” section in which free-text comments and evidence can be provided. One commenter asked whether fax transmission will remain as an alternative method for filing if the electronic system is not available and suggested that the USPTO either provide an alternative method that is electronic but not tied to the TEAS system or allow for a deadline extension when the TEAS system is not operational at the time of deadline. Finally, a commenter suggested that the USPTO implement contingency servers and systems that would serve as a backup to the USPTO's primary electronic systems and reduce the need for paper filings if the primary systems experience an outage.

Response: The USPTO recognizes that the successful implementation of mandatory electronic filing requires reliable, well-functioning electronic filing and payment systems. To that end, the USPTO is actively engaged in enhancing the Office's systems to significantly improve reliability and stability with the result of reducing unscheduled outages and instabilities and mitigating any that do occur. For example, the USPTO recently upgraded the main server that houses the TEAS and payment systems, which will significantly enhance reliability and responsiveness.

The USPTO also acknowledges the comments concerning the general usability of TEAS forms and is enhancing its electronic systems to accommodate the requirements of mandatory electronic filing, and also plans to improve the overall functionality of the TEAS forms. In addition, remedies are already available to customers who are unable to file a TEAS submission because of incorrect status information in the USPTO electronic record. To request assistance, such as correction of the status information so that TEAS will allow submission of the appropriate form, customers may call or email the USPTO. Furthermore, when a party is unable to file electronically because of an extraordinary situation, § 2.147(c) allows the party to petition the Director under § 2.146(a)(5), requesting that the Director waive § 2.23(a) and accept a paper submission.

Regarding the commenter's request to retain fax transmission, the rule removes this submission option. As noted above, continuing to accept fax transmissions would be counterproductive to maximizing end-to-end electronic processing because such submissions require manual processing similar to paper submissions. If a significant outage or other emergency occurs, the USPTO may consider waiving the relevant rules to accept certain submissions by fax or another means for specific purposes.

Regarding the comment requesting the rule allow for a deadline extension when the TEAS system is not operational at the time of deadline, the USPTO has previously waived non-statutory deadlines on petition when verifiable issues with USPTO systems prevented electronic filing for extended periods. The USPTO may make this option available, if appropriate. However, the USPTO has no authority to extend deadlines set by statute.

Comment: One commenter who assists “low-wealth entrepreneurs” with trademark matters noted that, while most of these entrepreneurs have computer access and an email address, some have little understanding of the application and prosecution process and the rules governing this process. This commenter expressed concern that these entrepreneurs would be required to handle email communications from the USPTO that may significantly impact their ability to conduct their business. The commenter urged that USPTO communications be written in a way that ensures understanding by a lay person. Other commenters expressed concerns that the current TEAS forms are too complicated for the lay person, with one commenter suggesting that the USPTO permit applicants to file already completed applications in .pdf form.

Response: The USPTO is dedicated to making its communications comprehensible for all customers, but recognizes that the trademark application process is legal in nature and can be complex and difficult to understand for some applicants, regardless of whether submissions are filed on paper or electronically. Filing a trademark application with the USPTO starts a legal proceeding that is governed by U.S. law. Therefore, it may be advisable for an applicant to hire a qualified trademark attorney licensed to practice law in the United States who can give legal advice, help avoid pitfalls with the filing and prosecution of an application, and help enforce trademark rights. Applicants may also seek to avail themselves of free or reduced-fee legal services through such resources as the USPTO's Law School Clinic Certification Program, the list of Pro Bono IPL Resources provided by the American Bar Association, and the International Trademark Association trademark pro bono clearinghouse pilot program.

Further, the USPTO believes that the requirement to file electronically benefits those applicants who are unable to hire an attorney and must represent themselves. Specifically, electronic filing costs less than paper filing, especially if the lower-fee TEAS Plus application filing option is utilized. In addition, electronic filing simplifies and increases the efficiency of the application process for applicants. Those who file electronically are more likely to provide the necessary information in their submissions because the USPTO can update its electronic forms to specifically tailor the requirements for a particular submission and require that the information be validated prior to submission. Consequently, preparing and submitting an application or related document through TEAS is likely to result in a more complete submission and take less time than preparing and mailing the paper equivalent. In addition, the USPTO is dedicated to providing future enhancements to its online filing systems to further simplify the process for applicants by, for example, providing more informative, interactive, and user-friendly forms.

Regarding the comment suggesting that applicants be permitted to file completed applications in .pdf form, this approach would be counterproductive to maximizing end-to-end electronic processing because submissions in .pdf form require manual processing similar to paper submissions.

Comment: A commenter noted that the electronic filing requirement may lead to librarians being asked legal questions by those filing electronic submissions with the USPTO using a library computer and that referring these patrons to a PTRC might not be an effective solution to this problem.

Response: The USPTO acknowledges the possibility that library patrons may ask librarians legal questions about the trademark process, but does not believe this is an impediment to implementing mandatory electronic filing. The USPTO presumes that if a librarian is asked for legal information regarding trademark law, or any other area of law, he or she would direct the patron to a local bar association or other appropriate resource. As noted above, filing a trademark application with the USPTO starts a legal proceeding that is governed by U.S. law. It is therefore advisable for their patrons to seek legal guidance from a qualified private trademark attorney.

If a patron has questions regarding the trademark application process, a librarian can direct the patron to the USPTO website for information, including the email address and toll-free phone number for the Trademark Assistance Center. In addition, although PTRC library representatives cannot provide legal advice, they can: (1) Provide access to USPTO resources such as search systems and demonstrate how to use search tools to conduct a trademark search; (2) direct patrons to website information and explain the application process/timeline and fees; and (3) offer classes on intellectual property in some locations.

Comment: One commenter recommended that the proposed rule include information on the economic impact on entities who still choose the paper filing option and also provide means to reduce the economic burden for that group rather than impose additional costs.

Response: The USPTO believes that the overall economic impact on affected parties will be minimal. As noted above, in fiscal year 2018, more than 99% of all initial applications based on section 1 and/or section 44 of the Act were filed electronically—only 144 out of 468,926 applications were filed on paper. Thus, as a practical matter, almost all USPTO customers who may use the USPTO's electronic systems to file their trademark applications have already done so. Moreover, under the current system TEAS filers are subsidizing those who file on paper because current fees for paper filers do not cover the full cost of processing paper filings. The change to mandatory electronic filing also will improve the quality of Trademark applications and registrations because paper filings require manual uploading of scanned copies into USPTO electronic systems and manual data entry of information in the documents, which results in data-entry errors.

Thus, given the additional costs associated with filing applications and related submissions by paper, including higher fees, a requirement to file electronically will likely result in reduced costs overall for most customers who previously filed on paper.

Comment: Some commenters objected to the changes to §§ 2.21, 2.23, and 7.4, requiring the provision of an email address for applicants and registrants. One commenter noted that, when an applicant or registrant is represented by counsel, and counsel has provided a correspondence email address, the rule changes impose additional burdens on both the trademark owner and its counsel. Another commenter stated that the TEAS system appears to be open to abuse and fraud, and some commenters were concerned that the requirement to provide the applicant's email address for correspondence would lead to an increase in scams and misleading solicitations by third parties. One commenter had similar concerns about applicants' telephone numbers.

Response: The amended rules include a requirement for the applicant's email address, even when the applicant is represented by an attorney. This requirement ensures that the USPTO has an electronic means of contacting the applicant if the attorney's email address cannot be used, such as when the attorney is suspended or excluded from practice before the USPTO or when representation otherwise ceases. The USPTO does not undertake double correspondence with both the applicant or registrant and the attorney of record. Accordingly, if an applicant or registrant is represented by an attorney, the USPTO corresponds and conducts business only with the attorney. Once representation ceases, under this rule, the USPTO will correspond only with the applicant or registrant. Therefore, the applicant or registrant must provide an email address belonging to the applicant or registrant itself for receipt of correspondence from the USPTO in such a circumstance.

The USPTO appreciates the commenters' concerns that scams and misleading solicitations may increase if the email addresses required under these rules are publicly available in the USPTO's systems. Currently, all owner email addresses that appear in the “status” view of USPTO records are masked from public view. In addition, the USPTO plans to similarly mask from public view in application and registration files the correspondence email addresses of applicants and registrants who are not represented by counsel to reduce the likelihood that they will be subjected to scams and other unwanted solicitations. The contact information of attorneys appearing in USPTO records, including email addresses and telephone numbers, will remain publicly available and viewable, as this information is publicly available from other sources already and could be used for legitimate purposes by third parties.

Comment: One commenter stated that, to the extent that the USPTO does not already comply with the European Union's General Data Protection Regulation (GDPR), mandating the provision of email addresses of individuals associated with applicants and registrants, will subject the USPTO to this regulation, as well as to the penalties and obligations associated with any data breach.

Response: The USPTO is aware of the GDPR and has taken into account any implications it might have for the implementation of these amended rules.

Comment: Regarding the proposed amendment of § 2.151 to state that the USPTO will issue “to the owner” a certificate of registration, one commenter asked how the Office will know who “the owner” is, noting that, at most, the Office will know only who the owner of record is. This commenter also noted that, to avoid the need for future rulemaking, the USPTO should consider broadening the requirement for an email address, so that the requirement also encompasses an “alphanumeric identifier that is capable of receiving electronic communications.” The commenter then suggested that the ability of users to input an email address into a TEAS form should be restricted to forms for which doing so actually updates the information.

Response: Under amended § 2.151, a certificate of registration will be issued to the owner of record, as indicated in the USPTO electronic record at the time the certificate is issued.

The USPTO appreciates the suggestion to use broader terminology than “email address,” but has determined that “email address” is sufficiently accurate and will serve the intended purpose under the rule. The USPTO also appreciates the suggestion regarding the ability to input and update email addresses in TEAS forms, and will take that feedback into account when considering enhancements to TEAS.

Comment: One commenter stated the USPTO should provide another filing mechanism to ensure that customers have access to protect their trademark rights without having to incur the uncertainty or additional fees and time associated with filing a separate petition, if having to file on paper. This commenter suggested that a more predictable and desirable remedy in this situation may include submitting with the relevant filing a declaration or other statement attesting to the outage, lack of access, or other reason for not filing electronically, and that the filer may also include evidence of the problem, such as a screen shot. The commenter noted that, to ease the administrative burden on the USPTO and add certainty for applicants and counsel as to permissible exceptions, any USPTO form could acknowledge clear exceptions through use of a box to be checked, but for unusual or unique circumstances, a free-form text box could be provided in the relevant form. Relatedly, one commenter recommended that the rules be modified to provide specific examples of documentation the user can provide to satisfy the USPTO's requirement for proof that TEAS was unavailable for electronic filing because of a “technical problem.” This commenter suggested that such documentation might include screenshots showing the time and date and the error statement encountered by the user, or a signed declaration under 37 CFR 2.20 indicating the circumstances of the unsuccessful electronic filing.

Response: The USPTO believes that a petition describing the reasons for a paper submission is the most efficient and effective mechanism for providing the information necessary to enable the USPTO to determine whether the submission should be accepted. However, the USPTO also agrees with the commenters that the petition process may be simplified by the use of a standard preformatted petition form, listing the most common reasons for requesting acceptance of a paper submission. The user could complete the form by selecting the appropriate reason and include the completed form with the paper submission. The USPTO is working to make such a form available before this rule takes effect.

The USPTO appreciates the suggestion that the rules should be modified to provide specific examples of documentation a user can provide to satisfy the USPTO's requirement for proof that TEAS was unavailable for electronic filing because of a “technical problem.” However, considering the type and nature of evidence that may suffice will differ depending on the circumstances, the USPTO believes it is preferable to enact a rule that provides flexibility as to the type of evidence the USPTO may accept as proof. However, the Office will consider adding such examples in other USPTO materials, such as web pages or the TMEP, to provide guidance.

Comment: One commenter urged the USPTO to continue its practice of attempting to contact the correspondent by other means if a transmission to the email address of record fails, including physical correspondence by mail. This commenter noted that email addresses frequently change due to companies adopting new domain names and staffing changes, and that technical issues due to hardware malfunction, software bugs, or malicious cyberattacks increase the chances of electronic communication being disrupted.

Response: Although the USPTO previously attempted to contact the correspondent by other means if an email transmission failed and, in some cases, sent a paper copy of the correspondence to the physical address of record, it no longer does so. As the commenter indicated, email transmissions may fail for a variety of reasons outside of the USPTO's control. Even if the number of failed transmissions are relatively low, attempting to contact the applicant or registrant in every instance is administratively burdensome to the USPTO. In addition, continuing to send paper correspondence after implementing mandatory electronic filing would be counterproductive to the goal of maximizing end-to-end electronic processing.

Moreover, under § 2.18(c), applicants and registrants are required to maintain a current and accurate correspondence email address, and to monitor the status of their applications or registrations for any notices issued or action taken by the USPTO, in accordance with § 2.23(d).

Comment: One commenter stated that, for a paper filed during a time when TEAS is unavailable, a petition requirement is unneeded and burdensome because the USPTO will usually already be aware of instances when its filing system is broken. This commenter suggested that, when the USPTO is unaware of an outage, the USPTO could respond to a paper filing with a request for a showing by the filer as to the nature and time of the outage. Some commenters objected to any requirement that the filer postpone a filing until such time as a TEAS outage is repaired and another commenter stated that an applicant or registrant should not be required to wait until the day of the deadline to be eligible for an exception to the electronic filing requirement when TEAS is unavailable.

Response: When a paper submission is necessary because of an unscheduled TEAS outage or some other technical problem, the USPTO believes that the mechanism of a petition, which permits inclusion of a description of the reasons for the paper submission, is the only appropriate mechanism for providing the information necessary to enable the USPTO to determine whether the particular submission should be accepted.

Regarding known TEAS outages, the USPTO intends to continue to follow the approach employed in the past. For example, when verifiable issues with USPTO systems prevent electronic filing for extended periods, the USPTO has waived non-statutory deadlines on petition, such as the deadline for response to a post-registration Office action, as well as petition fees. Even when the USPTO is aware of an outage, a petition would typically still be required, because the party requesting relief would need to establish that the outage prevented electronic filing of the particular submission. However, because the impact of technical problems varies depending on the specific facts, the Office cannot provide advance guidance about all possibilities or specific measures the USPTO may take in the future.

The USPTO acknowledges the commenters' concerns about waiting until the date of the deadline to be eligible for an exception to the requirement to file electronically. However, this requirement applies only if the party is relying on § 2.147(a), which provides that the petition may be submitted if TEAS is unavailable on the date of the deadline for the submission specified in a regulation in parts 2 or 7 of this chapter or in a section of the Act.

If an extraordinary situation prevents an applicant or registrant from waiting until the deadline for a submission to be eligible for an exception to the requirement to file electronically, or otherwise postponing a TEAS submission, § 2.147(c) provides that the applicant or registrant may petition the Director under § 2.146(a)(5), requesting a waiver of § 2.21(a) or § 2.23(a) and documenting the nature of the extraordinary situation that prevented the party from submitting the correspondence electronically at the relevant time. Because petitions for extraordinary situations are not automatically granted, and the assessment of what would qualify as an extraordinary situation depends on the specific facts, the Office will address particular situations on a case-by-case basis.

The USPTO amends § 2.2 to revise paragraph (e) to include the abbreviation “USPTO” and paragraphs (f) and (g) to indicate that the definitions of “TEAS” and “ESTTA” include all related electronic systems required to complete an electronic submission through each and to delete the URLs. The USPTO also adds: § 2.2(q), defining “ETAS;” § 2.2(r), defining “Eastern Time;” § 2.2(s), defining “electronic submission;” and § 2.2(t) defining “USPS.” The paragraph designations (q) through (t) do not correspond to the proposed changes published at 83 FR 24701. The revisions to these designations reflect additional changes published in an intervening rule published at 84 FR 31498.

The USPTO amends § 2.6 to clarify that § 2.6(a)(1)(ii) applies to applications filed under section 66(a) of the Act. The USPTO also changes the wording “Reduced Fee (RF)” to “Standard” and deletes the reference to § 2.23 in § 2.6(a)(1)(iii), rewords § 2.6(a)(1)(iv) for clarity, and deletes the reference to § 2.23(c) in § 2.6(a)(1)(iv).

The USPTO deletes the wording “and attorney” and the reference to TEAS in current § 2.17(d)(1), because it is unnecessary in view of amended § 2.23(a), redesignates § 2.17(d)(1) as § 2.17(d), and deletes § 2.17(d)(2) as unnecessary as a result of updates to the electronic form for filing a power of attorney.

The USPTO amends the title to § 2.18(a) to “Establishing the correspondent” and adds introductory text indicating that the following paragraphs set out the procedures by which the Office will determine the address to which correspondence will be sent. The USPTO revises § 2.18(a)(1) to define when the Office will send correspondence to the applicant, registrant, or party to a proceeding and § 2.18(a)(2) to define when the Office will send correspondence to an attorney. The USPTO also deletes current paragraphs (a)(3)-(a)(5), redesignates current § 2.18(a)(6) as § 2.18(b), adds the title “Ex parte matters,” and rewords the text for clarity, and deletes current paragraph (a)(7). The USPTO redesignates current § 2.18(b) as § 2.18(c), changes the title to “Maintaining and changing the correspondence addresses,” and deletes current § 2.18(b)(1)-(4). The USPTO redesignates current § 2.18(c)(1) as § 2.18(d), deletes the word “Trademark” in the first sentence, deletes the second and third sentences in current § 2.18(c)(1), clarifies that the Office will change the address if a new address is provided, adds a cross reference to § 2.18(a), and deletes current § 2.18(c)(2).

The USPTO amends § 2.21(a) to require that applications under section 1 or section 44 be filed through TEAS, to require the domicile and email addresses for each applicant, and if the applicant is represented by a qualified practitioner, to require the postal and email addresses for the practitioner. The USPTO rewords § 2.21(a)(5) for clarity, rewords § 2.21(b) and includes a reference to § 2.21(c), and adds § 2.21(c), which sets out an exemption for certain countries.

The USPTO amends § 2.22(a) to specify that TEAS Plus applications must satisfy the requirements of § 2.21, to delete current paragraphs (a)(1), (a)(5), and (a)(6) and renumber the remaining paragraphs, to change “an individual” and “a juristic” to “each individual” and “each juristic” in redesignated paragraph (a)(2), to clarify that the requirement in redesignated paragraph (a)(3) applies to domestic partnerships and to add a requirement for the names and citizenship of the active members of a domestic joint venture, to add a requirement for the citizenship of a sole proprietorship and for the name and citizenship of the sole proprietor to redesignated paragraph (a)(4), to correct the cross reference in redesignated paragraph (a)(8) to § 2.6(a)(1)(iv), to delete the first sentence and the reference to a particular format in redesignated paragraph (a)(10), and to delete the URL in redesignated paragraph (a)(11). The USPTO revises § 2.22(b) to indicate that the applicant must comply with amended § 2.23(a) and (b), to delete § 2.22(b)(1) and (2), and to delete the second sentence in § 2.22(c).

The USPTO amends the title of § 2.23 to “Requirement to correspond electronically with the Office and duty to monitor status” and deletes the current text of the section. The USPTO revises § 2.23(a) to require that, unless stated otherwise, all trademark correspondence must be submitted through TEAS; revises § 2.23(b) to require that applicants, registrants, and parties to a proceeding provide and maintain a valid email correspondence address; revises current § 2.23(c) to set out an exemption for nationals of a country that has acceded to the Trademark Law Treaty, but not to the Singapore Treaty on the Law of Trademarks; and adds § 2.23(d) to indicate that applicants and registrants are responsible for monitoring the status of their applications and registrations.

The USPTO amends § 2.24(a) to clarify that only an applicant or registrant that is not domiciled in the U.S. may designate a domestic representative. The USPTO deletes § 2.24(a)(1)(i), redesignates § 2.24(a)(1)(ii) as § 2.24(b) and revises it to require an email and postal address for a designated domestic representative, and deletes § 2.24(a)(2). The USPTO redesignates § 2.24(a)(3) as § 2.24(c) and rewords it for clarity, and deletes current § 2.24(b).

The USPTO amends § 2.32(a)(2) to add a statement that if the applicant is a national of a country that has acceded to the Trademark Law Treaty, but not to the Singapore Treaty on the Law of Trademarks, the requirement to provide an email address does not apply. The USPTO amends § 2.32(a)(3)(i) to require the legal entity as well as the citizenship of the applicant(s), deletes “or” from § 2.32(a)(3)(iii), adds “or” to § 2.32(a)(3)(iv), and adds § 2.32(a)(3)(v) to require the state of organization of a sole proprietorship and the name and citizenship of a sole proprietor. The USPTO amends § 2.32(d) to add the word “the” before “fee.”

The USPTO amends § 2.56(a) to indicate that the specimen must show the mark as actually used in commerce for the identified goods or services and to add cross references to §§ 2.160 and 7.36. The USPTO amends § 2.56(b) and (c) to codify existing requirements for specimens. The USPTO amends § 2.56(d) to set out the requirements for submitting a specimen through TEAS, revises current § 2.56(d)(1) and (2) to set out the exceptions to the requirements, and deletes § 2.56(d)(3) and (4).

The USPTO amends the title of § 2.62 to “Procedure for submitting response,” revises § 2.62(a) slightly for clarity, and revises § 2.62(c) for consistency with amended § 2.23 and to add that responses filed via facsimile will not be accorded a date of receipt.

The USPTO amends § 2.111(c)(2) for consistency with § 2.147(b).

The USPTO amends § 2.146(a) to add the words “in a trademark case” and revises § 2.146(a)(2) and (4) to specify that the regulation applies to “parts 2, 3, 6, and 7” of Title 37.

The USPTO adds § 2.147 to set out the requirements for submitting a petition requesting acceptance of a paper submission.

The USPTO amends § 2.148 to clarify that it applies to “parts 2, 3, 6, and 7 of this chapter.”

The USPTO amends § 2.151 to indicate that the certificate of registration will issue to the owner, to reword the second and third sentences for clarity, and to change the wording “accompany” in the last sentence to “issue with.”

The USPTO amends § 2.162 to change the word “includes” to “issues with the certificate” and to add the wording “or section 71” after “section 8” for consistency with § 2.151.

The USPTO amends § 2.190(a) to clarify that the paragraph refers to paper documents, and to clarify that the stated mailing address is for documents to be sent by mail and that the address for hand delivery is the address for delivery by private courier or another delivery service. The USPTO amends § 2.190(b) to state that trademark documents filed electronically must be submitted through TEAS and that documents related to TTAB proceedings must be filed through ESTTA, and to delete the URLs. The USPTO rewords § 2.190(c) for clarity and to delete the mailing address and URL. The USPTO amends § 2.190(d) to add “certified” to the title and to delete the first sentence and the wording “or uncertified” in the second sentence and to change “should” to “must.” The USPTO corrects the mailing address in § 2.190(e).

The USPTO amends the title of § 2.191 to “Action of the Office based on the written record” and revises the section to state that all business must be recorded in writing, to reword for clarity, and to delete the last sentence.

The USPTO amends § 2.193(a)(2) and (b) to delete wording regarding submission of a photocopy or facsimile or by facsimile transmission. The USPTO amends § 2.193(c)(1) to change the wording “he or she” to “the signer,” and revises § 2.193(d) to require submission of the first and last name and the title or position of the signatory and to delete the wording “in printed or typed form” and the wording after “the signature.” The USPTO amends the introductory text of § 2.193(e) to clarify that documents must be signed as specified in paragraphs (e)(1) through (9). The USPTO amends the title and introductory text of § 2.193(e)(5) to add “or § 2.147” after the wording “§ 2.146.” The USPTO also deletes § 2.193(e)(10), rewords § 2.193(g)(1) for clarity, and revises § 2.193(g)(2) to change “correspondence” to “documents” and to delete the last sentence.

The USPTO amends the title of § 2.195 to “Filing date of trademark correspondence.” The USPTO deletes current § 2.195(a)-(d) and sets out the procedures for determining the filing date of electronic and paper submissions in § 2.195(a) and (b)(1) through (b)(2), indicates when the Office is closed in § 2.195(b)(3), indicates that email and facsimile submissions are not permitted in § 2.195(c), redesignates current § 2.195(e)(1) through (e)(2)(iii) as § 2.195(d)(1) through (3) and changes U.S Postal Service and United States Postal Service to USPS. The USPTO deletes current § 2.195(e)(3).

The USPTO amends the title of § 2.197 to “Certificate of mailing.” The USPTO deletes current § 2.197(a) through (c) and sets out the requirements for obtaining a filing date based on a certificate of mailing in § 2.197(a), the procedure when correspondence is mailed in accordance with paragraph (a) of this section but not received by the Office in § 2.197(b), and the filing date when the certificate of mailing does not meet the requirements in § 2.197(c).

The USPTO deletes current § 2.198(a) through (f) and clarifies the filing date of correspondence submitted under this section in amended § 2.198(a) and (b) and the procedures when there is a discrepancy, error, or non-receipt in amended § 2.198(c)-(e).

The USPTO amends § 7.1(c) to indicate that the definition of TEAS includes all related electronic systems required to complete an electronic submission through TEAS and to delete a URL. The USPTO amends § 7.1(d) to add “or the abbreviation USPTO.”

The USPTO amends the title of § 7.4 to “International applications and registrations originating from the USPTO—Requirements to electronically file and communicate with the Office.” The USPTO amends § 7.4(a) to specify that all correspondence relating to international applications and registrations originating from the USPTO must be submitted through TEAS and include a valid email correspondence address. The USPTO amends § 7.4(b) to require that applicants and registrants provide and maintain a valid email correspondence address and to delete current paragraphs (b)(1) and (b)(2). The USPTO amends § 7.4(c) to set out an exemption for nationals of a country that has acceded to the Trademark Law Treaty, but not to the Singapore Treaty on the Law of Trademarks and § 7.4(d) to set out the procedure if TEAS is unavailable or when there is an extraordinary situation, and to delete paragraphs (d)(1)-(d)(6). The USPTO also deletes § 7.4(e).

The USPTO amends § 7.11(a) to delete the word “either,” to add a cross reference to § 7.4(a), and to specify that the Office will grant a date of receipt to an international application typed on the official paper form issued by the IB if a paper submission is permitted under § 7.4(c) or accepted on petition pursuant to § 7.4(d). The USPTO also adds the word “and” to § 7.11(a)(10), deletes the word “and” from § 7.11(a)(11), and deletes § 7.11(a)(12).

The USPTO amends § 7.21(b) to delete the word “either,” to add a cross reference to § 7.4(a), and to specify that the Office will grant a date of receipt to a subsequent designation typed on the official paper form issued by the IB if a paper submission is permitted under § 7.4(c) or accepted on petition pursuant to § 7.4(d). The USPTO also adds the word “and” to § 7.21(b)(7), deletes the word “and” from § 7.21(b)(8), and deletes § 7.21(b)(9).

The USPTO revises § 7.25 to delete the reference to § 2.23 and replace it with a reference to § 2.22 and to delete the reference to § 2.197.

This rule revises sections of 37 CFR parts 2 and 7 that were revised in the final rule entitled Requirement of U.S. Licensed Attorney for Foreign Trademark Applicants and Registrants, published at 84 FR 31498 (July 2, 2019). The revisions published here supplement the changes implemented in that earlier rule and do not change the requirements for obtaining U.S. counsel. However, this rule has resulted in a few changes to the revisions that were made in the earlier rule. In this regard, USPTO in the earlier rule had revised § 2.32(a)(2); under that revision, an application would be required to include the “name and domicile address of each applicant.” In this rule, USPTO is amending § 2.32(a)(2) to require an application to also include the “email address of each applicant” (as discussed above, the requirement to provide an email address does not apply if the applicant is a national of a country that has acceded to the Trademark Law Treaty, but not to the Singapore Treaty on the Law of Trademarks). In addition, this rule includes a reorganization of § 2.22 (“Requirements for a TEAS Plus Application”), which was revised by the earlier rule, to streamline the regulations and improve clarity. As a result of this reorganization, paragraphs (a)(19), (20), and (21) of § 2.22 of the earlier rule are being redesignated—without change—as paragraphs (a)(17), (18), and (19). Also, the requirement for the applicant's name and domicile address, which was in § 2.22(a)(1) of the earlier rule, is now a requirement of § 2.21(a)(1) of this rule, and applies to all applicants. Finally, we note that the regulatory revisions that were made in that earlier rule are going into effect on August 3, 2019, whereas the regulatory revisions in this rule are going into effect on October 5, 2019.

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))). However, the Office has chosen to seek public comment before implementing the rule to benefit from the public's input.

B. Regulatory Flexibility Act: For the reasons set forth herein, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, of the USPTO has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

This rule amends the regulations to require that applications filed under section 1 or section 44 of the Act, and all submissions regarding an application or registration under section 1, section 44, and section 66(a), be filed electronically. The rule also requires that applicants, registrants, and parties to a proceeding maintain a valid email correspondence address and continue to receive communications from the Office by email. The rule applies to all applicants and registrants unless acceptance of a submission filed on paper or a waiver of the proposed requirements is granted on petition, the applicant/registrant is a national of a country to which the requirements will not apply, or the requirement to file electronically is otherwise excepted, as for certain types of specimens. Applicants for a trademark are not industry specific and may consist of individuals, small businesses, non-profit organizations, and large corporations. The USPTO does not collect or maintain statistics on small- versus large-entity applicants, and this information would be required in order to determine the number of small entities that would be affected by the proposed rule.

The burdens to all entities, including small entities, imposed by these rule changes will be minor procedural requirements on parties submitting applications or documents and communications in connection with an application or registration. The vast majority of users already file and prosecute applications electronically in response to previous initiatives to increase end-to-end electronic processing. For example, the USPTO amended its rules to encourage electronic filing through TEAS and email communication by establishing the TEAS Plus and TEAS RF filing options for applications that are based on section 1 and/or section 44. See 37 CFR 2.6. The TEAS RF filing option is now the most popular filing option among USPTO customers, followed by TEAS Plus. These two filing options currently account for approximately 97% of all trademark applications filed under section 1 and/or section 44, and more than 99% of trademark applications under section 1 and/or section 44 in total are now filed electronically through TEAS, suggesting that most applicants are comfortable with filing and communicating with the USPTO electronically.

Furthermore, in January 2017, the USPTO revised its rules to (1) increase fees for paper filings to bring the fees nearer to the cost of processing the filings and encourage customers to use lower-cost electronic options and (2) require that all submissions to the TTAB be filed through ESTTA. As a result of these rule changes, the USPTO is now processing approximately 88% of applications filed under section 1 and/or section 44 electronically end to end.

The changes enacted herein do not impose any additional economic burden unless the applicant or registrant fails to file electronically. In such cases, the economic burden to the applicant or registrant would be the higher paper fee for the submission (if a fee is required) and the fee for the petition seeking acceptance of a submission filed on paper or a waiver of the requirement to file electronically. However, as mentioned above, since the vast majority of current users already file and prosecute applications electronically, the economic impact of filing on paper is expected to be small. Moreover, this rule will lead to a greater adoption of lower filing-fee options and therefore outweigh any cost burdens and likely save applicants and registrants money. For these reasons, this rule is not expected to have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

K. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this notice is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

M. Unfunded Mandates Reform Act of 1995: The changes set forth in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

N. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

O. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

P. Paperwork Reduction Act: This rulemaking involves information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The collection of information involved in this rule has been reviewed and previously approved by OMB under control numbers 0651-0009, 0651-0050, 0651-0051, 0651-0054, 0651-0055, 0651-0056, and 0651-0061. This rulemaking has an overall change on the public burdens within these approved collections including a reduction of 862 in burden hours and a reduction of $5,175 in cost burdens.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons stated in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office amends parts 2 and 7 of title 37 as follows:

I. Background

Sections 108 and 109 of the CAA govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health and welfare for six criteria pollutants: ozone, particulate matter (PM) (including fine particulate matter, or PM 2.5 ), carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide. The CAA requires periodic review of the air quality criteria, the science upon which the standards are based, and the standards themselves. EPA's regulatory provisions that govern the NAAQS are found at 40 CFR 50, National Primary and Secondary Ambient Air Quality Standards.

EPA is taking final action to approve changes to the Chattanooga portion of the Tennessee SIP that were provided to EPA through a letter dated September 12, 2018. 1 EPA is finalizing approval of the portions of this SIP revision that make changes to air quality rules in Part II, Chapter 4, Article II, Section 4-41. 2 The September 12, 2018, SIP revision makes changes to the SIP that deletes the current version and substitutes a revised version of Part II, Chapter 4, Article II, Section 4-41, Rule 21 of the Chattanooga City Code “Ambient Air Quality Standards.” Hamilton County revised its rule to be consistent with changes to the federal NAAQS.

In a notice of proposed rulemaking (NPRM) published on March 29, 2019 (84 FR 11917), EPA proposed to approve the aforementioned changes to Part II, Chapter 4, Article II, Section 4-41 in the Chattanooga portion of the Tennessee SIP, which address the NAAQS. The NPRM provides additional details regarding EPA's action. Comments on the NPRM were due on or before April 29, 2019.

EPA received one potentially adverse comment on its March 29, 2019, NPRM. This comment is provided in the docket for today's final action. EPA has summarized and responded to the comment below.

Comment: The Commenter notes that “high levels of ground level ozone, airborne particles and other matter” pose a threat to human health, “making this proposal a public concern.” The Commenter also states that any changes to the SIP “must consider any changes in location of monitoring sites, protocol of air quality monitoring and quality standards sample so that there is no heteroskedasticity which could lead to corruption of time measure data.” According to the Commenter, if any of these changes have been made, “further scrutiny should be made concerning the motive or whether data has been skewed in favor of noncompliance.” The Commenter further states that it is “important that careful consideration and verification be given to this proposed revision.”

Response: It is unclear how the commenter would like EPA to change the proposed rule. To the extent the commenter is concerned about the health effects of air pollution, EPA notes that final approval of this SIP revision will incorporate more protective NAAQS into the Chattanooga portion of the Tennessee SIP. To the extent the commenter is concerned about air quality monitoring, these concerns are outside of the scope of this rulemaking, which updates Tennessee's SIP solely to reflect the current NAAQS. Tennessee's SIP revision does not change the location of any monitoring sites or any air quality monitoring plans. EPA further notes that it has carefully evaluated the SIP revision and is approving it for the reasons discussed in this notice and the NPRM.

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 changes to the Chattanooga portion of the Tennessee SIP at Part II, Chapter 4, Article II, Section 4-41, Rule 21, state effective January 23, 2017. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

EPA is taking final action to approve changes to Part II, Chapter 4, Article II, Section 4-41, Rule 21, of the Chattanooga portion of the Tennessee SIP because the changes are consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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 may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Background

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NOx). NO 2 is the component of greatest concern and is used as the indicator for the larger group of NOx. Emissions that lead to the formation of NO 2 generally also lead to the formation of other NOx. Therefore, control measures that reduce NO 2 can generally be expected to reduce population exposures to all gaseous NOx, which may reduce the formation of ozone and fine particles, both of which pose significant public health threats. For comprehensive information on the 2010 1-hour NO 2 NAAQS, please refer to the February 9, 2010 (75 FR 6474), Federal Register notice.

When EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. Unless otherwise noted below, EPA is following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's implementation plan for compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. EPA has other authority to address any issues concerning a state's implementation of the regulations that comprise its SIP.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIPs. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). EPA sometimes refers to prong 1 and prong 2 conjointly as the “good neighbor” provision of the CAA. The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

EPA's most recent infrastructure SIP guidance, the September 13, 2013, “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” did not explicitly include criteria for how the Agency would evaluate infrastructure SIP submissions intended to address section 110(a)(2)(D)(i)(I). With respect to certain pollutants, such as ozone and particulate matter (PM), EPA has addressed interstate transport in eastern states in the context of regional rulemaking actions that quantify state emission reduction obligations. For NO 2 , EPA has considered available information such as current air quality, emissions data and trends, and regulatory provisions that control source emissions to determine whether emissions from one state interfere with the attainment or maintenance of the NAAQS in another state. EPA's action on Kentucky's CAA section 110(a)(2)(D)(i)(I) interstate transport SIP revision for the 2010 NO 2 NAAQS is informed by these considerations.

In a notice of proposed rulemaking (NPRM) for Kentucky, published on May 16, 2019 (84 FR 22084), EPA proposed to approve the Kentucky SIP submission on the basis that the Commonwealth's SIP adequately addresses prong 1 and prong 2 requirements for the 2010 1-hour NO 2 NAAQS. The details of the Kentucky submission and the rationale for EPA's action are explained in the NPRM. Comments on the proposed rulemaking were due on or before June 17, 2019. EPA did not receive any comments.

As described above, EPA is taking final action to approve the infrastructure SIP submission transmitted under cover letter by the Commonwealth of Kentucky on November 16, 2018, addressing prongs 1 and 2 of section 110(a)(2)(D)(i)(I) for the 2010 1-hour NO 2 NAAQS. EPA is approving Kentucky's infrastructure SIP submission because it is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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 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 July 8, 2015 (80 FR 38959), the EPA took direct final action to approve revisions to the Feather River Air Quality Management District (AQMD) portion of the California SIP. 1 The approval covered one Feather River AQMD rule (Rule 3.8 (“Gasoline Dispensing Facilities”)) and three Reasonably Available Control Technology (RACT) SIP demonstrations from Feather River AQMD: One from 2006 (“2006 RACT SIP”), one from 2009 (“2009 RACT SIP”) and one from 2014 (“2014 RACT SIP”). In our direct final action, we mistakenly codified our approval of Rule 3.8 twice and failed to codify our approval of the 2009 RACT SIP.

On September 8, 2015 (80 FR 53739), we corrected our July 8, 2015 direct final action by replacing one of the listings for our approval of Rule 3.8 with our approval of the 2014 RACT SIP. In our September 8, 2015 action, we also intended to replace the July 8, 2015 listing of the 2014 RACT SIP with the missing approval of the 2009 RACT SIP, but inadvertently failed to do so with the result that our approval of the 2014 RACT SIP is now codified at both 40 CFR 52.220(c)(459) and 40 CFR 52.220(c)(460) and the approval of the 2009 RACT SIP is still missing. In this action, we are revising paragraph (c)(459) to list our approval of the 2009 RACT SIP.

The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action is unnecessary because the underlying rule for which this correcting amendment has been prepared was already subject to a 30-day comment period. Further, this action is consistent with the purpose and rationale of the final rule for which amendatory instructions are being corrected herein. Because this action does not change the EPA's analyses or overall actions, no purpose would be served by additional public notice and comment. Consequently, additional public notice and comment are unnecessary.

The EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. This action merely corrects incomplete amendatory instructions in a previous rulemaking. For these reasons, the EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with state officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994).

Because this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, the EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On March 8, 2017, EPA received a request from the Wisconsin Department of Natural Resources (WDNR) that we approve revisions and updates to Wisconsin's title V operating permit program. Pursuant to subchapter V of the Act, generally known as title V, and the implementing regulations, at 40 Code of Federal Regulations (CFR) part 70, states developed and submitted to EPA for approval programs for issuing operation permits to all major stationary sources and to certain other sources. EPA promulgated interim approval of Wisconsin's title V operating permit program on March 6, 1995 (60 FR 12128). In 2001, Wisconsin submitted corrections to the interim approval issues identified in the 1995 interim approval action as well as additional program revisions and updates. EPA took action to approve the corrections to the interim approval issues and promulgated final approval of the Wisconsin title V program on December 4, 2001 (66 FR 62951).

Wisconsin is seeking approval of changes and updates made to its title V program since the 1995 and 2001 approvals. EPA received WDNR's submittal updating its title V operating permit program on March 8, 2017, and supplemental information on January 26, 2018 (submittal). WDNR's submittal contains two sections, Part 1 and Part 2.

Part 1 contains previously approved program elements which are included for informational purposes, as well as Other Changes — Minor Clarifications and Corrections (which are changes that were included in WDNR's 2001 submittal that EPA did not act on or approve in the 2001 approval).

Part 2 contains title V program revisions and updates since Wisconsin's program was approved in 2001. Part 2 of the submittal contains section I—Additional State Rule Changes and Updates to the Regulations, and section II—Permit Fee Demonstration.

In this action, EPA is addressing the changes and updates in WDNR's submittal that have not been previously approved. This includes the Part 1, Section IX Other Changes — Minor Clarifications and Corrections, as well as the changes in Part 2, Sections I and II, of WDNR's submittal that relate to the Federal title V program at 40 CFR part 70.

WDNR's submittal includes changes related to several different operating permit programs, including its title V program as well its Federally Enforceable State Operating Permit (FESOP) program and its state-only enforceable operating permit program. EPA approved Wisconsin's FESOP program on January 18, 1995 (60 FR 3538). FESOP permits are those in which a source takes a federally-enforceable limit to restrict its emissions to below major source thresholds in order to avoid needing a title V permit. WDNR's State-only operating permit program is for sources with emissions below those that would require a FESOP or title V permit. In this action, EPA is only approving provisions related to WDNR's title V operating permit program. EPA is not approving any changes or updates solely related to WDNR's FESOP or State-only operation permit programs.

For the reasons set forth below, the revisions and updates to WDNR's title V operating permits program, including the submitted amendments to the operating permits program regulations at NR 407 Wisconsin Administrative Code and fee related provisions at NR 410 and Wisconsin Statute 285.69, substantially meet the corresponding requirements of 40 CFR part 70.

In Wisconsin's 1995 initial program approval, EPA identified several issues (in addition to the interim approval issues) that should be clarified or corrected, and WDNR agreed to make these changes. WDNR included these changes in its 2001 program submittal, but EPA only acted on the interim approval corrections at that time. For each of these additional items EPA had identified, WDNR included an analysis of the changes in its current submittal. EPA is approving the changes identified in Part I, Section IX, items 1-6 of the submittal.

WDNR's submittal contains over thirty revisions related to its operation permit program since the final approval in 2001. The WDNR followed all necessary procedures for adoption of changes that were made to these regulations including the WDNR's secretary's approval of the notice of public hearing, certification of publication, affidavit of mailing of the public notice to interested parties, a list of public hearing appearances, and the WDNR report on comments and response to comments.

For a detailed analysis of Part 2, Section I—Updates to Regulations, of the submittal, please refer to the Technical Support Document (TSD) for this action, which is available in the docket at the address noted above. The TSD shows that all operating permit program requirements of title V of the Act, 40 CFR part 70, and relevant guidance were met by Wisconsin's submittal.

WDNR submitted a fee demonstration because it is required by 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(a), which provide that a state program must require that the owners or operators of part 70 sources pay annual fees, or the equivalent over some other period, that are sufficient to cover the permit program costs. 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(b) provide that a state may collect fees that cover the actual permit program costs, or may use a presumptive fee schedule, adjusted for inflation (using the Consumer Price Index). Wisconsin's fee schedule is not based on the presumptive minimum fee schedule established in 40 CFR 70.9(b) and does not provide for inflation adjustments; therefore, Wisconsin must provide a demonstration that its collected fees cover the actual permit program costs as required by 40 CFR 70.9(b)(5).

WDNR describes in its submittal the rule changes related to fees that have occurred since 2001, including changes that revised the operation permit fee structure. WDNR's current title V fee structure requires sources that are required to obtain a Federal operation permit to pay an annual air emissions tonnage fee, but sources also pay an additional annual flat fee, based on the tons of actual billable emissions. In addition, sources also pay an additional annual flat fee if the source is subject to other requirements, such as if maximum achievable control technology standards apply to the source, if one or more Federal new source performance standards apply to the source, if Federal prevention of significant deterioration permitting applies to the source, and if the source is a privately-owned coal-fired electric utility with an electric generating unit, among other flat fees.

The submittal provides tables showing the fee rate per ton of billable pollutants, the billable tons, and the total fees assessed for various years. The submittal also provides details on WDNR's revenue, work planning, and expenditures. In addition, WDNR has several mechanisms in place to ensure that fees collected from title V sources are used solely for funding title V permit activities as required by 40 CFR 70.9(a). In the submittal, WDNR compares the actual revenues collected under its fee structure to an estimate of what would be collected using the presumptive minimum fee schedule, and WDNR's actual revenues collected exceed the presumptive minimum projections. WDNR demonstrates that the level of fees collected by WDNR from federally-regulated sources is sufficient for the WDNR to adequately administer and enforce the required minimum elements of the title V permit program required in Section 502(b) of the Act.

Upon review of the information submitted, EPA finds that WDNR has demonstrated that it has adequate funding levels to support its title V program. Accordingly, Wisconsin has adequately demonstrated that the revised fee schedule has resulted in the collection of fees in an amount sufficient to cover its actual program costs, as required by 40 CFR 70.9 and the Act.

EPA is approving Wisconsin's submittal. This approval of the revisions and updates in Wisconsin's submittal addresses only the provisions as described above in Section II, What is EPA Approving, which pertain to the Federal title V program requirements, and does not apply to any other Federal program requirements, such as State Implementation Plans pursuant to section 110 of the Act. EPA finds that the program revisions and updates in WDNR's submittal have satisfactorily addressed the requirements of part 70, and EPA is therefore approving this submittal.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this issue of the Federal Register , we are publishing a separate document that will serve as the proposal to approve the State plan if relevant adverse written comments are filed. This rule will be effective September 30, 2019 without further notice unless we receive relevant adverse written comments by August 30, 2019. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective September 30, 2019.

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this state operating permit program will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this action proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state operating permit program, and does not alter the relationship or the distribution of power and responsibilities established in the Act.

In addition, the state operating permit program is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the state operating permit program does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes to approve a state operating permit program.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this action. In reviewing state operating permit program submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the Act. Accordingly, this action merely approves certain state requirements and will not in-and-of itself create any new requirements. Accordingly, it 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.

40 CFR part 70 is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Deletion V. Deletion Action I. Introduction

EPA Region 5 is publishing this direct final Notice of Deletion of the Duell & Gardner Site, from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Duell & Gardner Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Duell & Gardner Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

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

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

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

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Duell & Gardner Site:

(1) EPA consulted with the State of Michigan prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State thirty (30) working days for review of this action and the parallel Notice of Intent to Delete prior to their publication today, and the State, through the MDEGLE, has concurred on the deletion of the Duell & Gardner Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, an announcement of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the Muskegon Chronical. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Duell & Gardner Site from the NPL.

(4) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Duell & Gardner Site information repositories identified in the ADDRESSES Section of this rule.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion in the Federal Register before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Duell & Gardner Site from the NPL:

The Duell & Gardner Site (CERCLIS ID: MID980504716) is an 80-acre parcel of land located at 1285 East Bard Road in Dalton Township, Muskegon County, Michigan, approximately five miles north of the City of Muskegon, Michigan. See Figure 1 in the Docket. The landfill consisted mostly of municipal debris and waste spread out over an eight-acre area in the southern half of the property. During the cleanup, the waste was consolidated into a four-acre area and covered with a landfill cap.

The Duell & Gardner Site is not fenced; however the entrance road to the landfill is gated. The landfill is secluded and is posted with warning signs and permanent markers around the perimeter indicating that the landfill is a hazardous waste site.

The Duell & Gardner Site is located in a primarily residential and agricultural area. Two single family homes and an agricultural field are located in the northern half of the Duell & Gardner Site property. These residences are supplied with drinking water from two wells that are located upgradient of the landfill. These wells are not impacted by contaminants from the Duell & Gardner Site. Several residential wells are located approximately one-half mile in the general downgradient direction of the landfill. Twenty-one private wells located within this area were sampled during the investigations and were found not to be contaminated by the Duell & Gardner Site.

The Duell & Gardner Site owners used the property for waste disposal activities from the mid-1940s to 1973. From the 1940s until 1969, the property owner/landfill operator disposed municipal and industrial waste in trenches, depressions and on the ground surface of approximately eight-acres of the 80-acre property. In 1969, new owners began operating the landfill as a licensed solid waste disposal facility. From 1969 until 1973, the landfill operators disposed waste, including liquid waste, in unlined trenches excavated on the property.

The Muskegon County Health Department (MCHD) periodically inspected the landfill from 1969 through September 1973. In 1971, the Michigan Department of Public Health (MDPH) stipulated that liquid waste could not be disposed in the landfill. In 1973, MCHD noted that the landfill operators were disposing liquid waste in the landfill. The Michigan Department of Public Health (MDPH) ordered that the landfill be closed in January 1974, after which the landfill ceased accepting waste.

Initial concern regarding possible groundwater contamination at the Duell & Gardner Site arose in 1977 when the MDPH was considering approving the construction of a community water supply in the area. In 1979, the Michigan Department of Natural Resources (MDNR) (subsequently known as the Michigan Department of Environmental Quality, or MDEQ, and now MDEGLE) collected soil and drum samples from the property. The samples indicated that polychlorinated biphenyls (PCBs) were present in the soil.

EPA collected surface water samples from a tributary of Bear Creek in 1981. In 1982, EPA installed and sampled four groundwater monitoring wells at the Duell & Gardner Site. EPA determined that the groundwater below the property was generally flowing to the southeast. EPA did not detect any significant concentrations of organic or inorganic compounds in these groundwater monitoring wells.

EPA proposed the Duell & Gardner Site to the NPL on December 30, 1982 (47 FR 58476). EPA finalized the Duell & Gardner Site NPL listing on September 8, 1983 (48 FR 40658).

In 1984, the MDNR and EPA found and sampled drums in a wooded area adjacent to the landfill. The samples showed evidence of organic and inorganic contamination. MDNR investigated further and identified 21 distinct drum and waste disposal areas at the Duell & Gardner Site in September 1985. MDNR found approximately 550 drums in various stages of deterioration scattered in the woods adjacent to the landfill in groups of 9 to 140 drums. MDNR also found hundreds of small laboratory bottles, areas of refuse and debris and piles of unidentified sludge-like material scattered around the base of the landfill.

EPA conducted a CERCLA removal action at the Duell & Gardner Site in 1986. EPA removed 550 drums in various stages of deterioration from the Duell & Gardner Site for off-site disposal. EPA also removed some of the laboratory bottles, sludge-like material and soil for off-site disposal. EPA implemented the CERCLA removal action to prevent contaminants from leaching into the groundwater. This action reduced the risk of ingesting contaminated groundwater and the risks from direct exposure to contaminants through dermal contact and incidental ingestion.

MDNR initiated a Remedial Investigation/Feasibility Study (RI/FS) at the Duell & Gardner Site in 1986. The purpose of the RI/FS was to quantify the residual contamination at the Duell & Gardner Site and to identify and evaluate cleanup alternatives. MDNR also conducted a Treatability study to identify technologies which might eliminate or reduce the toxicity, mobility and/or volume of the contaminants present in the soil and groundwater at the landfill. MDNR conducted the RI/FS using Federal Superfund funding.

MNDR completed the RI report, the Treatability Study report and the FS report in 1992. The results of the RI indicated that soil was contaminated with organic compounds including bis(2-ethylhexy)phthalate, gentian violet, aniline, and N,N-dimethylaniline. PCBs and pesticides (DDT, DDD, and DDE) were also detected in the soil at two locations. Gentian violet (a dye and at one time used as a topical antiseptic), often referred to as crystal violet, was detected at concentrations as high as 188 milligrams per kilogram (mg/Kg). Other contaminants detected in soil included pentachlorophenol and polynuclear aromatic hydrocarbons including chrysene, benzo(k)fluoranthene, indeno(1,2,3-cd)pyrene and benzo(a)anthracene.

Groundwater sampling indicated that two contaminated groundwater plumes were emanating from the Duell & Gardner Site. One plume contained chloroform and carbon tetrachloride. The other plume contained aniline and N,N-dimethylaniline. The chloroform and carbon tetrachloride were only detected in the shallow portion of the aquifer (ten to twenty feet below ground surface) while aniline and N,N-dimethylaniline were found in deeper portions of the aquifer, up to 100 feet below ground surface. Gentian violet and tetrachloroethylene were also detected in the groundwater. The 21 private wells sampled downgradient of the landfill were not contaminated.

MDNR collected surface water and sediment samples from the tributary to Bear Creek located east of the Duell & Gardner Site and sediment samples from the drainage ditch located south of the property. Neither of these drainage systems was contaminated.

The FS evaluated five cleanup alternatives for soil and four cleanup alternatives for groundwater. The cleanup alternatives evaluated for soil included: no action; excavation and on-site capping; excavation, on-site vitrification and capping; excavation, on-site thermal treatment and capping; and excavation, off-site incineration and capping. The cleanup alternatives evaluated for groundwater included: no action; land use restrictions and monitoring; groundwater extraction with ultraviolet oxidation treatment; and groundwater extraction with carbon adsorption treatment.

The remedial action objectives (RAOs) for the Duell & Gardner Site are to: (1) Prevent direct human exposure to soil having concentrations of chemicals of concern resulting in a cumulative excess cancer risk of greater than 1 x 10 -4 ; (2) Prevent future residents from using groundwater containing carbon tetrachloride and N,N-dimethylaniline contaminants above drinking water standards as a domestic water supply; and (3) Restore groundwater and all soil areas outside of the landfill to their beneficial use (residential).

EPA and MNDR selected a cleanup remedy for the Duell & Gardner Site in a September 7, 1993 Record of Decision (ROD). The selected cleanup remedy included the following main components: (1) Excavation of contaminated soil with on-site low-temperature thermal treatment; (2) Contaminated groundwater extraction with on-site carbon adsorption treatment; (3) Construction of a clay cap over the landfill area meeting the requirements of Michigan Act 641 (a solid waste cap); (4) Institutional controls such as deed restrictions to prevent the installation of drinking water wells in the affected area of the site during remediation; (5) Groundwater monitoring to assess the remediation and assure containment of the contaminant plumes; (6) A pre-design investigation to further define the limits of the contamination.

The MDEQ (formerly the MDNR and now known as the MDEGLE) conducted the pre-design investigation in 1996 and follow-up groundwater sampling in 1998. The investigations showed that the extent of soil and groundwater contamination was less than previously identified and that the size and mass of the groundwater plumes appeared to have stabilized or decreased since the RI. In addition, the State of Michigan revised its cleanup levels, which resulted in a reduction in the volume of soil requiring remediation.

EPA issued a Proposed Plan requesting public comment on amending the soil and groundwater cleanups in 1999. Following public comment, MDEQ conducted a study to better understand the groundwater contamination at the Duell & Gardner Site. MDEQ's study cast doubt on the stability of the groundwater plumes and whether the groundwater contaminants would naturally degrade before they migrated beyond the Duell & Gardner Site boundary. Due to these concerns and concerns about the ability to reliably restrict the use of contaminated groundwater downgradient of the landfill, EPA and MDEQ decided that the groundwater components of the 1993 ROD should remain unchanged.

EPA issued the ROD Amendment on June 29, 2001. The amended ROD retained the construction of a landfill cap; the groundwater extraction and treatment system; and the placement of use restrictions or institutional controls (ICs) on parts of the Duell & Gardner Site property to prevent the installation of drinking water wells until the groundwater cleanup standards (residential) are met. In addition, the ROD Amendment required permanent restrictions for the capped area to prevent excavation or other unauthorized activities. With respect to the soil, the amended ROD eliminated low-temperature thermal desorption from the remedy and required excavation and the appropriate disposal of contaminated soils. The ROD Amendment also updated the cleanup standards for soil and groundwater to current Michigan Part 201 criteria (see Tables 2A and 2B in the Docket).

The U.S. Army Corps of Engineers (USACE) conducted the remedial design (RD) and remedial action (RA) at the Duell & Gardner Site through an interagency agreement with EPA. USACE completed the RD in 2000. USACE and its contractor, IT Corporation, mobilized to the Duell & Gardner Site to start the RA construction in October 2000. USACE and IT Corporation completed the landfill cap construction in April 2001.

During the RA, USACE conducted additional soil characterization activities and consolidated the eight-acre landfill waste area into a four-acre rectangular landfill area. While performing the Landfill Boundary Verification activities, USACE discovered approximately 2,000 cubic yards of gentian violet-impacted soils within the four-acre landfill area. USACE excavated the waste and sampled the material. After discussions with EPA and MDEQ, USACE consolidated the excavated material into a special waste cell constructed within the landfill cap. USACE collected confirmation soil samples from the excavated areas. The confirmation samples did not show any regulatory exceedances for gentian violet.

Confirmation soil samples collected from soil excavations in the southwestern portion of the eight-acre waste area showed 4-chloro-methylphenoxy acetic acid (MCPA), a systemic phenoxy herbicide used to control annual and perennial weeds, at concentrations above Michigan Part 201 Soil Criteria for the Protection of Residential Drinking Water at one location. USACE did not remove additional soil from the excavations, however, since the bottoms of the excavations were at the water table and additional excavation would not reduce the source of MCPA contamination in groundwater. As a result, the confirmation samples from two grids within this area remain above Michigan's residential drinking water protection criteria of 390 micrograms per liter (µg/L).

During hot spot excavation, i.e., the impacted soil in the area of soil sample locations SL-A8, SL-SB-11, and SS-31, USACE sampled the material and found that it did not meet the definition of hazardous waste. Based on the sample results and discussions between EPA, MDEQ and USACE, the material was consolidated under the landfill cap. The 2001 ROD Amendment accounted for this change.

USACE's and IT Corporation's soil excavation and landfill completion activities are documented in the 2001 Landfill Construction Report prepared by Shaw, which subsequently acquired IT Corporation.

USACE completed the construction and start-up of the groundwater extraction and treatment system on June 29, 2001. The system consisted of four recovery wells, an infiltration gallery, a treatment building containing two granular activated carbon units, various pumps, a 3000-gallon retention tank, conveyance piping, appurtenant devices, and automatic shut-down capabilities.

EPA and MDEQ inspected the construction activities at the Duell & Gardner Site on July 11, 2001. EPA and MDEQ inspected the capped landfill and the operating groundwater treatment system. EPA determined that the landfill cap and the groundwater treatment system met the objectives of the interagency agreement. Three deficiency items were noted including painting the groundwater treatment building, installing a garage door, and installing a lock on the observation well by the infiltration gallery. USACE completed those items on August 3, 2001. EPA determined that the groundwater treatment system was operational and functional on August 10, 2002.

USACE reconfigured the groundwater treatment system in 2003 to provide a higher operating efficiency. The modifications included: New granular activated carbon units incorporated into the recovery well system; additional bag filters; the chemical treatment of wells to reduce well fouling; and replacing the original re-pressurization pump to more efficiently convey backwash water into the infiltration gallery. In 2005, USACE installed a new higher capacity recovery well to capture the groundwater plume more effectively. The 2003 and 2005 modifications were consistent with the 2001 ROD Amendment.

EPA installed and sampled three new groundwater monitoring wells in 2009 in the southeastern corner of the Duell & Gardner Site. EPA installed the wells to determine whether the contaminant plume was migrating off-site. The laboratory results indicated that the groundwater constituents in the new monitoring wells did not exceed Michigan Part 201 cleanup standards.

USACE operated the groundwater extraction and treatment system and conducted quarterly groundwater monitoring at the Duell & Gardner Site until 2010. In 2010, the groundwater monitoring data indicated that chemical concentrations in groundwater had decreased to below the cleanup standards for two consecutive quarters.

EPA and MDEQ approved that the system be shut down. USACE shut the system down and continued quarterly groundwater monitoring until 2012. In 2012, the groundwater data confirmed that the groundwater extraction and treatment system could be permanently decommissioned. USACE decommissioned the groundwater extraction and treatment system, including the majority of monitoring wells and recovery wells, all transmission piping, wiring and the infiltration basin in 2012 in accordance with the Groundwater Monitoring Plan. The groundwater data and completion of the RA activities at the Duell & Gardner Site is documented in USACE's 2012 Final Remedial Action Report.

EPA, MDEQ and USACE conducted a Pre-Final Site Walk and a Post-Decommissioning Site Walk on July 25, 2012. EPA completed a Final Close Out Report documenting the completion of all response actions at the Duell & Gardner Site in accordance with EPA's Close Out Procedures for National Priorities List Sites (OLEM Directive 9320.2-22, May 2011) on November 8, 2012.

The cleanup levels for soil outside the capped area and groundwater in the 1993 ROD were based on Michigan Act 307 Type B Residential Cleanup Standards. Michigan later replaced Act 307 with Act 451. Michigan Act 451 Part 201 included revised cleanup criteria for soil and groundwater. The 2001 ROD Amendment for the Duell & Gardner Site updated the cleanup criteria for soil and groundwater to Michigan's then-current Part 201 Residential Cleanup criteria. Tables 2A and 2B in the Docket are from the 2001 ROD Amendment and show the updated Michigan Part 201 Residential Cleanup Criteria for the Duell & Gardner Site, compared to the previous Michigan Act 307 Criteria selected in the 1993 ROD.

USACE confirmed that soil outside the capped area met MDEQ Part 201 Residential Criteria through additional soil characterization, soil confirmation sampling and Landfill Boundary Verification during the soil RA. USACE conducted the soil verification sampling in accordance with the USACE's Chemistry Scope of Work. Except as noted above for the two soil samples at the water table that contained MCPA above MDEQ soil criteria for residential groundwater protection, no other regulatory criteria were exceeded. The specific details of the verification sampling are detailed in the 2001 Landfill Construction Report.

USACE conducted quarterly groundwater monitoring to monitor the effectiveness of the groundwater extraction system and chemical concentrations in groundwater over time. USACE conducted the monitoring in accordance with the EPA and MDEQ-approved Groundwater Monitoring Plan. In 2010, after nine years of operation, EPA and MDEQ agreed that the groundwater extraction and treatment system could be shut down because contaminant concentrations in groundwater were below Part 201 Residential Drinking Water Criteria for two consecutive quarters. In accordance with the Groundwater Monitoring Plan, USACE continued to sample the groundwater on a quarterly basis to verify that contaminant levels remained below the cleanup standards.

USACE conducted six additional quarterly groundwater monitoring events. In 2012, USACE compared the March 2012 groundwater monitoring results to MDEQ Part 201 Residential Drinking Water Criteria and MDEQ Part 22 Groundwater Quality Standards. The laboratory results did not exceed any of the Part 201 or Part 22 criteria. Based on the data, EPA and MDEQ agreed that the groundwater extraction and treatment system could be permanently decommissioned. The groundwater monitoring data and the completion of the cleanup activities at the Duell & Gardner Site are documented in the 2012 Final Remedial Action Report. The remaining chemicals of concern in the on-site groundwater are below Part 201 Groundwater Cleanup Criteria and will be allowed to naturally attenuate.

The Duell & Gardner Site officially transferred from the 10-year EPA-led long-term remedial action phase of the project to MDEQ-lead (now MDEGLE-lead) Operation and Maintenance (O&M) in 2012. The transfer included the following requirements: (1) Abide by the prescribed ICs and Land Use Controls for Long-Term Stewardship; (2) Implement outstanding ICs as required by the ROD, i.e., the installation of permanent markers; (3) Maintain site security; (4) Ensure vegetation is routinely maintained to prevent damage to the integrity of the landfill cap; and (5) Conduct Annual Monitoring Events for the remaining on-site monitoring wells.

MDEGLE conducts the O&M in accordance with the November 5, 2012 Operations, Maintenance & Monitoring Plan. The existing groundwater monitoring well network is comprised of 23 monitoring wells and four piezometers. MDEGLE collects groundwater samples annually from the wells. The laboratory data is compared to Part 201 groundwater protection standards. The monitoring well protective casings are to remain closed and locked at all times.

The property owners of the Duell & Gardner Site recorded a restrictive covenant at the Muskegon County Register of Deeds on October 30, 2007, Instrument 5260434, Liber 3759, Page 813. The covenant prohibits the use of groundwater contaminated with VOCs above drinking water standards, prevents disturbance to the landfill cap and any other activities that may interfere with the remedy, O&M and other measures necessary to ensure the effectiveness and the integrity of the remedial action.

The groundwater restrictions apply to Parcels A (20.96 acres) and B (the 4.28 acre landfill parcel) shown on the Duell and Gardner Site Survey (see Survey and Figure 2 in the Docket). The landfill cap restrictions apply to Parcel B shown in the survey. The restrictions prohibiting the groundwater monitoring wells from being disturbed apply to the 23 monitoring wells remaining on the Duell & Gardner Site property.

EPA conducted statutory five year reviews (FYRs) of the Duell & Gardner Site in 2005, 2010 and 2015. The purpose of the FYRs is to determine whether the remedy at a site remains protective of human health and the environment. The Duell & Gardner Site requires statutory FYRs because hazardous substances remain at the Duell & Gardner Site above levels that allow for unrestricted use and unlimited exposure. The review methods, findings, and conclusions are documented in the FYR reports. In addition, the FYR reports identify issues found during the review, if any, and recommendations to address them.

EPA's most recent FYR of the Duell & Gardner Site, in March 2015, determined that the remedy at the Duell & Gardner Site is protective of human health and the environment. Impacted soils have been removed; wastes have been consolidated into a four-acre landfill and covered with an impermeable cover; groundwater is currently meeting Michigan Part 201 and Part 22 water standards and no longer needs treatment; and ICs to restrict current and future use of the contaminated areas and to ensure long-term stewardship have been implemented. ICs in the form of an environmental covenant are in place for the Duell & Gardner Site. The IC Plan also ensures Long-Term Stewardship because it establishes a process to ensure that ICs are in place, maintained, and effective.

The FYR did not identify any issues or recommendations that would affect the current or future protectiveness of the remedy at the Duell & Gardner Site. The next FYR will be completed on or before March 2, 2020.

EPA and the State satisfied public participation activities as required in CERCLA Sections 113(k) and 117, 42 U.S.C. 9613(k) and 9617. MDEQ (formerly the MDNR and currently known as the MDEGLE) prepared a Community Relations Plan at the start of the RI/FS and established information repositories for site-related reports and documents at MDEQ's offices and at Dalton Township's offices. MDEQ also held three public meetings concerning the Duell & Gardner Site and issued a series of eight progress reports to the public.

MDEQ and EPA published announcements about their proposed action plan and proposed remedy amendment for the Duell & Gardner Site, 30-day public comment periods, and the availability of public meetings, in the Muskegon Chronical in 1993 and 1999. The agencies responded to significant comments received on the proposed plan and proposed ROD Amendment in Responsiveness Summaries attached to the 1993 ROD and the 2001 ROD Amendment.

MDEQ and EPA published notifications in the Muskegon Chronical announcing the start of each of the three FYRs conducted in 2005, 2010 and 2015 inviting the public to comment and express their concerns about the Duell & Gardner Site. The agencies did not receive any public comments.

EPA arranged to publish an advertisement announcing the publication of this rule and the 30-day public comment period in the Muskegon Chronical prior to its publication in the Federal Register . Documents in the deletion docket which EPA relied on to support the deletion of the Duell & Gardner Site from the NPL are available to the public in the Duell & Gardner Site information repositories and at http://www.regulations.gov .

The November 8, 2012, Final Close Out Report documents that EPA and MDEGLE have successfully implemented all appropriate response actions at the Duell & Gardner Site in accordance with the 1993 ROD, the 2001 ROD Amendment and Close Out Procedures for National Priorities List Sites (OLEM Directive 9320.2-22, May 2011).

The cleanup actions specified in 1993 ROD and the 2001 ROD Amendment for the Duell & Gardner Site have been implemented and the Duell & Gardner Site meets acceptable risk levels for all media and exposure pathways. The ongoing IC and long-term stewardship actions required at the Duell & Gardner Site are consistent with EPA policy and guidance.

Contaminated drums and other materials were removed from the Duell & Gardner Site under a CERCLA removal action, and residual materials were excavated and consolidated with materials under a low-permeability landfill cap. Groundwater sampling results confirm that the Duell & Gardner Site does not pose any threat to human health or the environment. Therefore, the EPA has determined that no further Superfund response is necessary at the Duell & Gardner Site to protect human health and the environment.

The NCP (40 CFR 300.425(e)) states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Michigan, has determined that all required response actions have been implemented at the Duell & Gardner Site and that no further response action is appropriate.

EPA, with concurrence of the State of Michigan through the MDEGLE, has determined that all appropriate response actions under CERCLA, other than operation and maintenance, monitoring and five-year reviews have been completed. Therefore, EPA is deleting the Duell & Gardner Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 30, 2019 unless EPA receives adverse comments by August 30, 2019. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before its effective date and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Partial Deletion Procedures IV. Basis for Site Partial Deletion V. Partial Deletion Action I. Introduction

EPA Region 5 is publishing this direct final Notice of Partial Deletion for the South Minneapolis Residential Soil Contamination Superfund Site (South Minn. Site), from the NPL. The South Minn. Site includes approximately 3,632 properties located on approximately 1,400 acres within an approximate three-quarter mile radius of the CMC Hearland Lite Yard State Superfund Cleanup Site. This partial deletion pertains to all media at approximately 3,623 of the residential properties, parks, schools, playgrounds associated with church schools and a cemetery located within the South Minn. Site boundary, and excludes the nine properties identified in Table 1 in the Docket that still require sampling and/or remediation due to access issues. The nine properties identified in Table 1 in the Docket will remain on the NPL and are not being considered for deletion as part of this action.

The nine properties that are not included in this partial deletion are shown generally on the figure labeled South Minneapolis Remedial Action and are listed in Table 1 in the Docket and include: Three properties that still require remediation (located on East 23rd Street, East 21st Street and East 22nd Street); five properties that still require sampling [located on East 26th Street, 12th Avenue South (two properties, one of which is now a community garden), 30th Avenue South and 14th Avenue South]; and one partially sampled property located on 19th Avenue South.

Commercial and industrial properties located within the South Minn. Site boundary do not require deletion because these properties are not part of the South Minn. Site and are not on the NPL.

The NPL constitutes Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to CERCLA. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the South Minn. Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in 40 CFR 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery within the South Minn. Site boundary that are included in this partial deletion and demonstrates how these properties meet the deletion criteria. Section V discusses EPA's action to partially delete all, but nine, properties located within the South Minn. Site boundary from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites, or portions thereof, may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

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

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

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

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site or a portion of a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of all residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery located within the South Minn. Site boundary excluding the nine properties that still require sampling and/or remediation due to access issues:

(1) EPA consulted with the State of Minnesota prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State 30 working days for review of this notice and the parallel Notice of Intent to Partially Delete prior to their publication today, and the State, through the Minnesota Department of Agriculture (MDA), has concurred on the partial deletion of the South Minn. Site from the NPL.

(3) Concurrent with the publication of this direct final Notice of Partial Deletion, an announcement of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, the Minneapolis Star Tribune. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the South Minn. Site from the NPL.

(4) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the South Minn. Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting all residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery located within the South Minn. Site boundary from the NPL, excluding the nine properties that still require sampling and/or remediation:

The South Minn. Site (MND 000 509 136) is located in Minneapolis, Hennepin County, Minnesota, approximately two miles southeast of downtown Minneapolis. The South Minn. Site includes all residential properties, parks, schools, playgrounds associated with church schools and a cemetery located within an approximate three-quarter mile radius of the CMC Heartland Lite Yard State Superfund Cleanup Site (CMC Site). The CMC Site is located at the northwest corner of Hiawatha Avenue and 28th Street in Minneapolis. Past operations at the CMC Site contaminated the South Minn. Site with arsenic. These past operations are the primary source of the South Minn. Site arsenic contamination. The CMC Site was cleaned up under MDA's State Superfund Cleanup Program in 2004-2005 and redeveloped into a 60,000 square foot light industrial building called the Hiawatha Business Center.

The South Minn. Site is largely a residential area interspersed with commercial and industrial properties, municipal properties including parks and schools, and a cemetery (see Figure 1-1 in the Docket). The South Minn. Site boundary is based on the results of air dispersion modeling which showed the potential area of arsenic deposition from past operations at the CMC Site (see Figure 4-1 in the Docket). The commercial and industrial properties located within the South Minn. Site area are not on the NPL and are not part of the South Minn. Site.

The majority of the homes in the South Minn. Site area were built during the early 1900s through the 1930s. A typical residential block within the South Minn. Site contains approximately 30 properties with an average lot size of approximately 5,500 square feet (0.1 acre). The current land uses at the South Minn. Site have been in place for some time and are expected to continue. Land use at the South Minn. Site is controlled by the City of Minneapolis's enforced zoning program.

The CMC Site property, which is the primary source of the arsenic contamination at the South Minn. Site, was owned by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Milwaukee Railroad) beginning in 1880. From 1938 to 1969, Reade Manufacturing Company (Reade) leased the property from the Milwaukee Railroad.

From 1938 to 1963, Reade blended, stored and distributed arsenic herbicides and pesticides at the CMC Site. During the 1940s, Reade also produced an arsenic-based grasshopper insecticide. As part of its operations, Reade regularly unloaded arsenic trioxide from railroad hopper cars onto an open conveyor belt. This caused powdered arsenic trioxide to be released into the air and onto the CMC Site property.

From 1963 to 1968, U.S. Borax subleased the CMC Site property from Reade. U.S. Borax manufactured, shipped and stored borate-based herbicides. U.S. Borax did not receive new shipments of powdered arsenic trioxide, however, its operations at the CMC Site disturbed and dispersed the arsenic contamination that was already present at the property from Reade's operations.

In 1968, a storage tank containing liquid sodium arsenite (NaAs02) ruptured at the CMC Site. This released approximately 3,000 gallons of liquid sodium arsenite from a 25,000-gallon storage tank onto an area of approximately 1,000 square meters. U.S. Borax covered the spill with approximately 6 inches of sand.

After 1968, Rollins Oil Company and then Bituminous Roadways, an asphalt road construction company, occupied the CMC Site. By 1996, after the arsenic contamination was discovered at the CMC Site, Bituminous Roadways placed one to two feet of crushed asphalt over the CMC Site property to minimize human exposure to surface soil and to keep additional dust from blowing off of the property.

The Minnesota Department of Transportation (MnDOT) discovered the arsenic contamination at the CMC Site in 1994 when investigating the Hiawatha Avenue corridor for reconstruction. The MnDOT collected soil samples from the easternmost part of the CMC Site and detected organochlorine pesticides and elevated levels of arsenic in some of the soil borings.

In 1996, CMC Heartland Partners, the CMC Site property owner at the time, began investigating the CMC Site under the oversight of the MDA's Agricultural Voluntary Investigation and Cleanup Program. Later, the State of Minnesota added the CMC Site to the Minnesota Permanent List of Priorities, a list of sites eligible for cleanup under Minnesota's State Superfund Program. In 2003, the MDA formally requested U.S. Borax and CMC Heartland Partners to investigate and cleanup the CMC Site.

U.S. Borax's and CMC Heartland Partner's investigations detected arsenic in surface soil at the CMC Site at concentrations as high as 5,000 mg/kg. Groundwater below the CMC Site contained arsenic concentrations as high as 320,000 micrograms per liter (µg/L). The groundwater contamination extended approximately 1,800 feet west-southwest of the CMC Site.

U.S. Borax and CMC Heartland Partners cleaned up the CMC Site from 2004 to 2005 under the oversight of MDA's Superfund Program. The cleanup included the excavation, stabilization and off-site disposal of contaminated soil and debris from the property and institutional controls to restrict access to residual soil and groundwater contamination remaining at and downgradient of the CMC Site.

There are no private drinking water wells at the CMC Site or within the South Minn. Site area. The City of Minneapolis supplies all drinking water to the area from the Mississippi River. The City of Minneapolis, Minnesota Code of Ordinances Chapter 9, Section 1 requires that all properties within the city connect to the municipal water supply.

The MDH established a Special Well Construction Area (SWCA) to address the arsenic plume from the CMC Site in 2005. The SWCA applies to the construction, repair, and sealing of all wells and will remain in effect until further notice. The SWCA includes the area bounded by East 26th Street on the north, 26th Avenue on the east, Lake Street on the south, and Bloomington Avenue South on the west, within the City of Minneapolis. A copy of MDH's 2005 memorandum concerning the SWCA is available in the Docket.

2800 Hiawatha LLC acquired the CMC Site in 2005. 2800 Hiawatha LLC conducted an additional soil cleanup at the CMC Site under MDA's voluntary cleanup program, now called the AgVIC program, and redeveloped the property into the Hiawatha Business Center. 2800 Hiawatha LLC also monitors the arsenic concentrations in groundwater at the CMC Site.

Due to the elevated concentrations of arsenic at the CMC Site, in 1999, the Minnesota Department of Health (MDH) recommended that soil sampling be performed in residential areas near the CMC Site (part of the area that would come to be known as the South Minn. Site). The prevailing summer winds were determined to be from the southeast toward the northwest; therefore, the residential area located directly downwind of the CMC Site was the focus of this initial sampling effort.

MDA in conjunction with MDH, conducted the initial, limited sampling event at residential properties to the west (crosswind) and northwest (downwind) of the CMC Site in 2001. The results of the 2001 MDA sampling detected arsenic in soil at six of the 11 downwind properties sampled at concentrations as high as 24 to 210 milligrams per kilogram (mg/kg).

Based on the 2001 sampling event and neighborhood concerns, MDA and MDH determined that additional sampling to the northwest and west of the CMC Site was warranted. MDA conducted a second study in 2003. MDA developed the sampling design for the 2003 study to obtain statistically valid data using a grid overlain on the Phillips neighborhood with the majority of the samples falling on residential properties.

MDA's contractor collected soil samples from a total of 242 locations and 167 properties during the 2003 sampling. MDA's contractor additionally collected 12 duplicate samples for quality control and 23 co-located samples to give an indication of spatial variability.

Thirty-five samples collected from 27 of the properties contained arsenic at concentrations greater than or equal to the Minnesota Pollution Control Agency (MPCA) unrestricted land use standard of 10 mg/kg. In 11 of the samples, the concentration of arsenic was greater than 100 mg/kg. Four of those samples contained arsenic at concentrations exceeding 200 mg/kg.

In 2004, MDA requested EPA's assistance to determine whether a time critical removal action was warranted to address the arsenic concentrations detected in the residential soil. EPA agreed to perform an additional investigation. EPA collected samples from 192 properties, primarily in the vicinity of the properties previously identified as hotspots, from a depth of zero to three inches below ground surface.

EPA consulted with the Agency for Toxic Substances and Disease Registry (ATSDR) and determined that arsenic concentrations equal to or greater than 95 mg/kg in surface soil posed an acute risk to human health and warranted an emergency removal action. Based on the results of multiple sampling events conducted in the Phillips neighborhood (the vicinity of East 26th Street and Bloomington Avenue), EPA identified 30 properties that exceeded the 95 mg/kg criterion.

EPA conducted a removal action in 2004 to mitigate the threat. EPA excavated the top 12 inches of soil from the yards and the top 18 inches of soil from play areas and gardens at the 30 identified properties. EPA removed an average of 106 cubic yards of arsenic-contaminated soil from each excavated property. EPA also collected post-excavation soil samples from each property to document the residual arsenic concentrations remaining in each yard after excavation. EPA backfilled each property to pre-existing grade with clean topsoil and seeded the excavated areas with grass seed.

In 2005, EPA sampled 540 additional properties in the Phillips neighborhood to ensure that 100 percent of the residential properties most likely to be impacted by wind deposition from the CMC Site were evaluated for potential impacts. EPA also sampled another 60 properties to identify whether areas in other wind directions surrounding the CMC Site were impacted.

EPA's sampling effort identified another 31 properties with arsenic concentrations above 95 mg/kg. EPA began a second removal action in 2005. During the 2005 removal action, EPA excavated and disposed of arsenic-contaminated soil consistent with the 2004 removal activities.

Due to the potential health risks posed to residents from exposure to arsenic-contaminated soil, EPA proposed the South Minn. Site to the NPL on September 27, 2006 (71 FR 56433). EPA finalized the South Minn. Site on the NPL on September 19, 2007 (72 FR 53463).

This partial deletion pertains to all media at all properties located within the boundary of the South Minn. Site except for nine properties that still require sampling and/or remediation due to access issues (see Section I., Introduction, above). This partial deletion also pertains to all media at all parks, schools, community gardens (except the community garden located on 12th Avenue South that is one of the nine properties that still requires sampling and/or remediation), playgrounds associated with church schools and the cemetery located within the South Minn. Site boundary.

The nine properties that still require sampling and/or remediation as shown generally on the figure labeled South Minneapolis Remedial Action and as listed in Table 1 in the Docket will remain on the NPL and are not being considered for deletion as part of this action.

Commercial and industrial properties located within the South Minn. Site boundary do not require deletion because these properties are not part of the South Minn. Site and are not on the NPL.

EPA conducted a Remedial Investigation (RI) at the South Minn. Site from 2005 to 2007. The objective of the RI was to have 100 percent of the residential properties, schools and parks within the modeled boundaries of the South Minn. Site sampled for total arsenic. EPA also collected soil samples for arsenic analysis from community gardens, playgrounds associated with church schools and a cemetery.

EPA developed the boundary for the South Minn. Site using the Industrial Source Complex 3 air dispersion model, information from past operations at the CMC Site and wind-rose data for Minneapolis to predict where arsenic may have been deposited in soil at concentrations greater than 10 mg/kg. EPA made slight adjustments to the modeled boundary so that an entire block would be sampled (see Figure 4-1).

EPA did not include previously sampled properties in the RI surface soil sampling unless only one discrete sample had been collected from that property. The RI also did not address groundwater. Groundwater was previously investigated and is being addressed as part of the CMC Site (see Site Background and History section).

EPA conducted the RI surface soil sampling in 2006. EPA conducted the sampling by collecting five samples from separate areas of each property and combining them into one composite sample for analysis. EPA collected the soil samples from the top three inches of soil, below any grass if present. EPA collected the soil samples from both the front yard and the back yard wherever possible. EPA also collected samples from side yards and gardens depending on their size. For larger properties, such as parks and schools, EPA divided the property into sub-areas and collected composite samples from each sub-area.

The RI also included subsurface soil sampling at 20 soil boring locations throughout the South Minn. Site. The subsurface soil borings were located to provide data to characterize the vertical distribution of arsenic at properties with varying arsenic concentrations. EPA collected subsurface soil samples from each boring at one foot intervals from zero to five feet, and at a depth of ten feet.

The surface soil sampling locations are shown in Figure 3-1 in the Docket. The subsurface soil sampling locations are shown in Figure 3-2.

EPA evaluated the 2006 soil sampling results against the previous soil sampling results collected from 2001 to 2005. EPA determined that the data were compatible and could be evaluated as a single data set for the RI. The total number of properties sampled for arsenic from 2001 to 2006 was 3,578. One-hundred and thirty-five properties within the South Minn. Site remained unsampled because the property owners did not allow EPA access.

The results of the surface and subsurface soil investigations at the South Minn. Site indicated that arsenic was present in the soil at varying concentrations at properties across the area (see Figure 4-2 in the Docket). The RI included a statistical evaluation which determined that the background concentration of arsenic in surface soil from natural and man-made sources within the South Minn. Site area was 16 mg/kg.

Arsenic concentrations within the South Minn. Site ranged from background concentrations up to 2,880 mg/kg. The vertical extent of arsenic concentrations above background appeared to be no greater than three feet below ground surface and, in most cases, was within the upper two feet of soil. This indicated that that the mobility of the arsenic in the soil was limited.

Of the 3,578 properties sampled, the majority of residential properties (2,600 properties) had arsenic concentrations below MPCA's unrestricted land use standard of 10 mg/kg. Seven-hundred and eighty-one residential properties contained concentrations of arsenic below EPA's removal action level for arsenic of 95 mg/kg, but above MPCA's unrestricted land use standard of 10 mg/kg. One-hundred and ninety-seven residential properties had arsenic concentrations in soil above EPA's removal action level of 95 mg/kg.

The properties with arsenic concentrations above EPA's removal action level of 95 mg/kg were scattered throughout the South Minn. Site area. EPA addressed these properties through removal actions EPA completed by 2008. All sample results from the schools, parks, playgrounds and the cemetery were within background levels and these properties did not require remediation.

EPA's RI included a Human Health Risk Assessment (HHRA) to evaluate the risks to human health from the arsenic contamination detected at the South Minn. Site. As part of the HHRA, EPA calculated potential risks due to varying concentrations of arsenic at residences with and without vegetable gardens, and for construction workers.

Using reasonable maximum exposure assumptions, EPA determined that an arsenic concentration of up to 25 mg/kg (or less) in soil is protective of adults and children residing within the South Minn. Site area for up to 50 years with vegetable gardens. This concentration of arsenic corresponds to a cancer risk of 1 × 10 −4 and a noncancer hazard of 1, which are within EPA's acceptable risk range. Approximately 486 homes exceeded the 25 mg/kg residential threshold. The HHRA determined that arsenic concentrations of 261 mg/kg (or less) are protective of construction workers.

The HHRA estimated that most of the risk posed by the soil is due to the incidental ingestion of soil and dust (approximately 70 percent), and to eating garden vegetables (approximately 25 percent). A small proportion of the estimated risk (approximately 4 percent) is from dermal contact with soil, and a very small relative proportion of potential risk (less than 0.05 percent) is from the inhalation of dust. The calculated risks to residents and construction workers are likely overestimated due to the uncertainties and conservative assumptions required throughout the HHRA process.

The RI included a Screening Level Ecological Risk Assessment (SLERA) to evaluate potential risks to ecological receptors from the arsenic-contaminated soil at the South Minn. Site. The SLERA concluded that no population-level ecological risks were expected from the arsenic contamination. In addition, EPA's Ecological Soil Screening Levels for arsenic of 43 mg/kg for avian wildlife and 46 mg/kg for mammalian wildlife were higher than the 25 mg/kg concentration of arsenic determined to be protective of people. There are no water bodies or wetlands within the South Minn. Site.

EPA conducted a Feasibility Study (FS) to develop and evaluate cleanup alternatives to address the unacceptable levels of arsenic found at the South Minn. Site. The FS evaluated six cleanup alternatives: (1) No action; (2) remove soil with arsenic levels above 25 mg/kg to a depth of 12 inches (18 inches in garden areas); (3) remove soil with arsenic levels above 16 mg/kg to a depth of 12 inches (18 inches in garden areas); (4) remove soil with arsenic levels above 25 mg/kg to a depth of 12 inches (18 inches in garden areas) and remove soil deeper than 12 inches with arsenic levels above 95 mg/kg; (5) remove all soil with arsenic levels above 25 mg/kg; and (6) remove all soil with arsenic levels above 16 mg/kg. For all cleanup alternatives except the no action alternative, the excavated soil would be disposed of at landfill.

EPA selected a cleanup remedy for the South Minn. Site in a 2008 Record of Decision (ROD). EPA's remedial action objectives for the arsenic-contaminated soil at the South Minn. Site are to control the concentrations of arsenic in soil to limit residential contact with arsenic and minimize the potential for dermal contact, ingestion and inhalation exposures.

EPA's selected cleanup standards for arsenic are 25 mg/kg for soil located zero to 12 inches below grade or to 18 inches below grade in gardens, and 95 mg/kg for soil down to a depth of 10 feet below grade. These concentrations of arsenic correspond to a cancer risk of 1 × 10 −4 and a noncancer hazard of 1 for residential exposure to surface soil and a cancer risk of 2 × 10 −5 and a noncancer hazard of 0.4 for construction worker exposure to subsurface soil.

The subsurface soil cleanup standard of 95 mg/kg corresponds to a cancer risk of 4 × 10 −4 and a noncancer hazard of 4 to residents. However, residential exposure to deep, subsurface concentrations of arsenic is only expected in rare circumstances and for short periods of time, and less frequently than a construction worker. Any risks from exposure to arsenic contamination in deep soil would also be mitigated through the inevitable mixing of the deep soil with the clean, shallow soil above, resulting in lower exposure point concentrations. Therefore, EPA considered the 95 mg/kg acute exposure-based removal action level provided by ATSDR to be appropriate for subsurface soil and protective over the long-term.

As indicated in the HHRA, most of the risk at the South Minn. Site was due to the incidental ingestion of soil and dust by residents and to residents eating garden vegetables. A small proportion of the estimated risk is from dermal contact with soil, and a very small relative proportion of potential risk is due to inhalation of dust. EPA's remedial action objectives for the South Minn. Site take into consideration that control of the soil concentrations of arsenic will address each of the exposure pathways contributing to the overall risk.

The selected remedy in the ROD applied only to the residential and residential-type properties at the South Minn. Site. The commercial and industrial properties in the area typically had little open ground and were mainly covered by asphalt, concrete or buildings which limited the potential for soil exposure.

The major components of EPA's selected cleanup remedy for the South Minn. Site in the ROD, as modified by a slight, non-significant change documented in a September 23, 2009 EPA memorandum include: (1) Inventory and document the existing conditions at the areas requiring the remedy; (2) excavate soil to a depth of 12 inches below grade in yards or to a depth of 18 inches below grade in garden areas that have a total arsenic concentration above 25 mg/kg; (3) post-excavation soil sampling to document arsenic concentrations in the remaining soil; (4) if the samples at the base of the excavation exceed the deep soil arsenic cleanup standard of 95 mg/kg, then excavate soil until the deep soil cleanup standard is met or to a maximum depth of ten feet; (5) if the samples at the base of the excavation exceed the deep soil arsenic cleanup standard, place a permanent, permeable highly-visible marker layer in the bottom of the excavation to provide a visual barrier over soils that were not excavated during the remedial actions and may contain residual contamination above the deep soil cleanup standard; (6) backfill excavations with clean fill and topsoil to the original grade; (7) restore the excavated areas ( i.e., restoring vegetation by seeding the final graded surface and planting replacement plants identified prior to excavation during the inventory); (8) collect samples from excavated soil to confirm the soil is not characteristically hazardous and may be transported to and disposed of at a permitted and compliant Resource Conservation Recovery Act (RCRA) Subtitle D landfill; (9) if soil is found to be characteristically hazardous, the soil may be stabilized and solidified at a centralized off-site treatment area and disposed of a RCRA Subtitle D landfill, or not stabilized and disposed of as a hazardous waste at a RCRA Subtitle C landfill; and (10) place institutional controls (ICs) on properties where the arsenic cleanup standard was not met at the bottom of the excavation in the form of use-restrictions to define areas of remaining concern or zoning and permit requirements to limit exposure.

EPA conducted the Remedial Design (RD) phase of the South Minn. Site cleanup from 2008 to 2009. EPA conducted the majority of the Remedial Action (RA) construction work for the South Minn. Site from 2009 to 2011. In 2016 and 2018, EPA conducted additional remedial activities and/or sampling at properties where EPA was not previously able to obtain the owners' consent for access.

EPA conducted the RA activities independently at each remediated property, but sequenced the work so that the contractor could move to nearby area as access to properties became available. The typical RA activities conducted at each property included: (1) Pre-construction survey; (2) plant inventory; (3) preconstruction property owner meetings; (4) locating utilities; (5) clearing and grubbing; (6) soil excavation; (7) transport and disposal; (8) post-excavation sampling and survey; (9) backfill placement; (10) topsoil placement; (11) restoration; (12) post-construction survey; (13) landscaping; (14) punch list activities; and 15) post-construction property owner meetings.

EPA implemented dust control measures throughout the RA to minimize potential hazards associated with airborne respirable dust. Dust control measures at residential properties included keeping the soil wet, hand sweeping the sidewalks and streets adjacent to the remediated properties, and using a vacuum truck to sweep streets daily during earthwork activities. Dust control measures at the Hennepin Avenue laydown yard included covering soil piles except when being loaded/unloaded, partial covering during loading/unloading as practicable, water spray for any visible dust, wetting and vacuuming pavement, using a rumble strip to remove dirt on trucks, inspecting trucks and full stormwater collection.

EPA performed health and safety monitoring during construction to determine the effectiveness of the dust control measures and to assess potential risks to human health. EPA used field dust monitors to compare respirable dust concentrations at residential properties and at the laydown yard with site-specific exposure limits. EPA considered a 15-minute average limit of 1.6 milligrams per cubic meter (mg/m 3 ) to be protective of dust inhalation based on a maximum arsenic concentration of 385 mg/kg in soil. EPA calibrated the monitors daily and stationed them upwind and downwind of excavation activities at each property and at the laydown yard.

A few isolated exceedances of the dust criteria occurred during soil remediation activities, but each of the exceedances was caused by monitoring anomalies, such as instrument calibration errors, construction equipment exhausting into the monitor, monitors falling to the ground, or exceedances at upwind monitoring locations not attributable to construction activities. Additionally, the dust limit was modeled based on an arsenic concentration of 385 mg/kg, which was generally an order of magnitude greater than the actual concentrations of arsenic at the properties or at the laydown yard. When considering the actual arsenic concentrations present at these properties and the laydown yard relative to the modeled concentration of 385 mg/kg, the construction activities did not appear to have caused an unacceptable risk due to dust inhalation. This is supported by monitoring performed at the Hennepin laydown yard. EPA analyzed a limited set of dust samples for arsenic to confirm that exposure limits were not exceeded and arsenic was not detected in any of the samples.

EPA also compared dust monitoring readings to the particulate matter maximum 24-hour primary and secondary criteria of 0.26 mg/m 3 and 0.15 mg/m 3 , respectively, per Minnesota Administrative Rule 7009.0080. Dust monitoring indicated a limited number of exceedances of the primary and secondary particulate matter standards, but the readings appeared to be due to the monitoring anomalies as discussed above, and are not believed to represent actual exceedances.

EPA performed the RA in accordance with the ROD with a few minor exceptions. In a few instances, based on a property owner's request or physical construction limitations, a small area of a property was not excavated even though the arsenic concentration in that area was above the surface soil cleanup level of 25 mg/kg. EPA determined that these areas did not present an unacceptable risk when evaluating the property as a whole; therefore these properties meet the criteria for partial deletion. These properties include:

(1) One property located on 11th Ave. South (front yard, arsenic concentration 31 mg/kg). The file review indicates the front yard was not cleaned up during the earlier removal action. EPA determined that remedial action was not required given the small size of the yard and the arsenic concentration relative to the cleanup limits. The area-weighted average arsenic concentration for the property is 15.6 mg/kg, which is below the surface soil cleanup level of 25 mg/kg.

(2) A property located on 15th Ave. South (around a tree, arsenic concentration 33 mg/kg). No remediation was performed due to the limited extent of the soil area. The tree was encircled by concrete and excavation could not be performed while maintaining a safe distance from the tree trunk (so as to not harm the tree).

(3) A property located on 19th Ave. South (garden area, arsenic concentration 51.2 mg/kg). After the yard was sampled and before the cleanup could occur, the yard was re-landscaped and a permanent structure was built in the garden area. Thus, it could not be accessed for cleanup.

(4) A property located on 20th Ave. South (garden area, arsenic concentrations of 25.7, 38, and 39.4 mg/kg). EPA determined that remedial action was not required given the small size of the garden area and the arsenic concentrations relative to the cleanup limits. The area-weighted average arsenic concentration for this property is 14.4 mg/kg, which is below the surface soil cleanup level of 25 mg/kg.

By 2011, EPA had completed the soil cleanup at a total of 611 properties: 137 properties remediated through EPA's Emergency Removal Program prior to 2009 that did not require additional response; 56 properties that underwent an Emergency cleanup but required additional soil cleanup during the RA; two properties cleaned up by a developer after entering into an agreement with EPA; and 416 properties requiring an RA soil cleanup only.

During the 2009 to 2011 RA, EPA was not able to complete the sampling and/or remediation at 54 properties due to access issues. These properties included (1) 14 properties that exceeded the cleanup criteria for arsenic, but could not be remediated because the property owners did not respond to requests for access or refused to provide EPA with access to clean up their property; (2) nine properties that EPA was not able to obtain permission to sample to determine whether they are contaminated with arsenic; and (3) 31 residential properties that could not be completely sampled because portions of the yards were inaccessible due to fenced areas with no entrance provided, locked gates, pets in the yard, etc. during the RI.

EPA and MDA contacted the owners of the 54 unsampled and/or unremediated properties in 2016 and 2018 to provide the property owners with another opportunity to allow EPA to complete the sampling and/or cleanup activities. By 2018, EPA was able to remediate 12 additional properties (one by EPA's Removal Program in 2018), and determine that 33 of the 40 unsampled or partially sampled properties had arsenic concentrations below the cleanup level and did not require remediation.

As of 2018, all, but nine, properties within the South Minn. Site have been remediated and/or sampled and determined to be below cleanup standards. The nine properties that EPA was not able to remediate and/or sample (due to access issues) are shown generally on the figure labeled South Minneapolis Remedial Action and listed in Table 1 in the Docket and include: Three properties that still require remediation (located on East 23rd Street, East 21st Street and East 22nd Street); five properties that still require sampling [located on East 26th Street, 12th Avenue South (two properties, one of which is now a community garden), 30th Avenue South and 14th Avenue South]; and one partially sampled property located on 19th Avenue South. These nine properties are not included as part of the South Minn. partial deletion and will remain on the NPL.

EPA demobilized from the South Minn. Site in 2011, then again in 2016 and 2018 after completing the construction and sampling activities for all, but nine, properties at the South Minn. Site. Reports documenting the completion of the RA for the properties included in this partial deletion are available in the Docket in the following reports: 2012 Final Remedial Action Report; 2016 Final Remedial Action Report; 2018 Data Evaluation Report; 2014 Five-Year Review and 2019 Five-Year Review.

The cleanup standards for the South Minn. Site arsenic contamination in the ROD are 25 mg/kg for soil located zero to 12 inches below grade or 18 inches below grade in gardens and 95 mg/kg for soil down to a depth of 10 feet below grade. EPA confirmed that the cleanup levels were met at each excavation during the 2009 to 2011 RA using field x-ray fluorescence (XRF) followed by laboratory confirmation sampling.

Based on a statistical analysis EPA conducted during the RD, EPA determined that the lower 95 percent confidence interval for a laboratory arsenic result of 95 mg/kg was an XRF reading of 62 mg/kg. For a laboratory result of 25 mg/kg, the lower 95 percent confidence interval was an XRF reading of 8 mg/kg, and the upper 95 percent confidence interval was an XRF reading of 44 mg/kg. During the RA, XRF readings above 62 mg/kg were considered to be above the 95 mg/kg cleanup level and further excavation was performed. XRF sample detections in surface soil above 44 mg/kg were considered to be above the 25 mg/kg cleanup level and additional excavation was performed. If XRF sample results in surface soil were between 8 mg/kg and 44 mg/kg, EPA submitted the soil sample for laboratory analysis to determine whether additional excavation was required.

After the lower extent of an excavation was reached, EPA collected a 5-point composite sample from the excavation floor for laboratory analysis. The laboratory analysis indicated that all excavated yards were determined to be below the surface and subsurface cleanup criteria of based on the XRF readings and confirmed by the post-excavation analytical results. EPA submitted post-excavation confirmation samples for each excavation area at each property to provide 100 percent laboratory verification. In all instances, the confirmation results from the laboratory confirmed the determination that the excavation was complete based on the XRF readings. The placement of demarcation fabric and ICs were not required in any excavation.

During the RD and the 2009 to 2011 RA, EPA resampled properties that were cleaned up between 2004 and 2008 by the Emergency Removal Program at a depth of 1 foot below ground surface if the 2004 to 2008 post-excavation results were greater than the subsurface criteria of 95 mg/kg. EPA used the results to assess if re-excavation was necessary during the RA. Based on this evaluation, EPA determined that additional soil excavation was required at 56 properties.

The post-excavation confirmation sampling results from the 2004 to 2008 removal actions and the 2009 to 2011 RA are included in Appendix D-3 of the 2012 Final Remedial Action Report in the Docket.

During the 2016 RA, EPA conducted delineation sampling during predesign activities prior to construction in lieu of post-excavation confirmation sampling. A summary of the investigation activities and delineation sampling results for the 2016 RA is provided in the 2018 Data Evaluation Report in the Docket.

There is no operation, maintenance or monitoring at the properties included in this partial deletion. All of the properties included in this partial deletion meet the cleanup standards for surface and subsurface soils in the ROD, as confirmed through investigation, delineation and/or confirmation sampling. These properties have either been cleared for unrestricted use/unlimited exposure (UU/UE) or returned to UU/UE through the excavation and off-site disposal of contaminated soil. Because EPA returned these properties to UU/UE, institutional controls to limit land use are not required.

Nine properties have not been sampled and/or remediated due to access issues. These properties are not included in this partial deletion. EPA provided the owners of the three properties with known arsenic contamination above criteria with information concerning the health risks and practices to minimize contact with soil contaminants. EPA also worked with the City of Minneapolis to ensure that utility and construction workers, and prospective buyers are put on notice of the contaminant levels at these properties.

All Minneapolis property owners are required, by City of Minneapolis (City) Code of Ordinances Section 248.30, to disclose to potential buyers environmental testing performed on the property by or under the direction of EPA or other governmental agencies. All Minneapolis rental property owners are also required, by City Code of Ordinances Title 12 Section 244.275, to: (1) Notify tenants of environmental testing results and (2) to cooperate with EPA regarding any necessary cleanup.

Added protection is also provided by the City in the form of a flag in their city permits databases for the three properties with contamination above cleanup levels to ensure that: (1) Rental permits are not issued for the properties, and (2) utility and construction workers are notified of the presence of contamination when a building or construction permit is sought for these properties until cleanups occur.

In April 2019, EPA and MDA contacted the owners of the nine properties that still require sampling and/or remediation to request access, but EPA's and MDA's requests for access continued to be denied. If EPA cannot obtain consent for access for sampling and/or remediation after continued efforts, EPA may pursue recorded ICs in the future on the uncooperative properties and/or may pursue other options for requiring access.

The ROD requires EPA to conduct statutory five-year reviews (FYRs) for the South Minn. Site if cleanup standards are still exceeded at the maximum practicable excavation depth at a property, resulting in hazardous substances, pollutants or contaminants remaining above levels that allow for UU/UE. Because EPA could not sample and/or remediate nine properties at the South Minn. Site, EPA is required to conduct statutory FYRs of the South Minn. Site until these remaining properties are either sampled and cleared for UU/UE or remediated.

EPA conducted the first FYR of the South Minn. Site in 2014. EPA conducted the most recent FYR for the South Minn. Site in May 2019. The 2019 FYR concluded that the remedy at the South Minn. Site is protective of human health and the environment because immediate threats have been addressed and the remedy is functioning as intended by the ROD.

The FYR confirms that the arsenic cleanup standards were met at the bottom of each excavation for all properties that were remediated, with the exception of four properties where minor areas of soil above criteria were left in place based on a property owner's request or physical construction limitations. EPA reviewed the information for these properties (provided in the 2012 RA Report) during the 2014 and 2019 FYRs and determined that these residual areas of soil contamination did not present an unacceptable risk when evaluating each property as a whole. (See the Response Actions section above).

The 2019 FYR concluded that for the three contaminated properties that still require remediation (not included as part of this partial deletion) effective governmental ICs are in place. Also, the FYR site inspection did not find any changes in land use at these properties that would cause an unacceptable risk. The contaminated soil at these properties is generally in lawn areas and covered by grass. Sampling throughout the South Minn. Site also demonstrates that the arsenic is generally not mobile and will not affect neighboring properties.

During the 2019 FYR, EPA and MDA contacted the owners of the three properties that still require remediation and the owners of the six properties that still require sampling to obtain access and were again refused (these properties are not included as part of this partial deletion). If EPA cannot obtain consent for access for sampling and/or remediation after continued efforts, EPA may pursue recorded ICs in the future on the uncooperative properties and/or may pursue other options for requiring access.

EPA will conduct the next FYR at the South Minn. Site on or before May 2023. If EPA is able to complete the sampling and any necessary remediation at the nine remaining properties at the South Minn. Site, however, EPA will propose to delete the South Minn. Site from the NPL in its entirety and FYRs will no longer be required.

EPA actively engaged with the community and strived to advocate and strengthen early and meaningful community participation throughout EPA's remedial activities at the South Minn. Site, satisfying the provisions of Sections 113(k) and 117 of CERCLA, 42 U.S.C. 9613(k) and 9617.

EPA developed a Community Involvement Plan (CIP) for the South Minn. Site in July 2005. The CIP outlined the community involvement activities that EPA conducted and would continue to undertake during the remedial activities planned for the South Minn. Site.

Since 2004, the year that EPA became involved with the South Minn. Site, EPA held 22 public meetings and availability sessions about the South Minn. Site investigations and cleanup. EPA held major meetings at the YWCA located at 2121 East Lake Street in Minneapolis, and other meetings at other locations throughout the affected area in an effort to make the meetings more available to all of the communities impacted by the South Minn. Site. EPA held meetings at Powderhorn Park, the Franklin Avenue Safety Center, and the Minneapolis Public Library Lake Street Branch.

EPA issued its proposed cleanup plan for the South Minn. Site and held a public comment period on its proposal from June 2, 2008 to July 1, 2008. EPA also held a public meeting on June 11, 2008 at the YWCA to discuss the contamination at the South Minn. Site, the cleanup alternatives being considered, and to answer questions and accept public comments on the proposed cleanup plan. Approximately 40 people attended the meeting. EPA received approximately 31 public comments during the comment period.

EPA mailed out post cards announcing the public meetings and fact sheets updating the community on the status of the project throughout the entire removal and remedial process. EPA sent mailings out to approximately 10,000 homes. Because of the multi-lingual nature of the area EPA translated the mailings into four languages: English, Spanish, Hmong and Somali. EPA eventually limited the translations to English and Spanish, but continued to make Hmong and Somali translations available upon request.

EPA developed and maintained public local information repositories for the South Minn. Site at four locations: (1) Green Institute, 2801 21st Ave. S, Suite 100, Minneapolis, MN; (2) City of Minneapolis Police Department, 1201-B E Franklin Ave., Minneapolis, MN; (3) Minneapolis Central Library, 300 Nicollet Mall, 2nd Floor Minneapolis, MN; and (4) Minneapolis Public Library, East Lake Branch, 2727 E Lake St., Minneapolis, MN. EPA also developed and maintains a web page for the South Minn. Site located at: http://epa.gov/region5/sites/cmcheartland.

EPA involved state and local government officials in the 2014 and 2019 FYR process by notifying them at the start of the FYR. EPA interviewed the former 9th Ward Alderman of the City of Minneapolis, the Minneapolis City Engineer, and an MDH Environmental Research Scientist during the 2014 FYR and included summaries of the interviews in the FYR Report. EPA conducted the 2014 and 2019 FYR site inspections jointly with MDA project staff and provided MDA an opportunity to review and provide input on the FYRs.

EPA notified the community about the 2014 FYR by publishing a newspaper announcement in the Minneapolis Southside Pride at the start of the FYR. The newspaper announcement invited the community to submit any concerns about the South Minn. Site to EPA and directed the community to EPA contacts and the South Minn. Site's web page for additional information. EPA notified the community about the 2019 FYR by publishing a newspaper announcement in the Minneapolis Star Tribune.

EPA made copies of the 2014 and 2019 FYR Reports available on the internet and at the information repository located at the Minneapolis Central Library.

EPA satisfied public participation activities for this partial deletion of the South Minn. Site as required by CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. EPA published a document announcing this proposed direct final Partial Deletion and announcing the 30-day public comment period in the Minneapolis Star Tribune concurrent with publishing this partial deletion in the Federal Register .

Documents in the deletion docket, which EPA relied on for recommending the partial deletion of the South Minn. Site from the NPL, are available to the public in the information repositories and at http://www.regulations.gov. Documents in the Docket include maps which identify the South Minn. Site boundary, the contamination detected at the South Minn. Site and the nine properties that are not included as part of this partial deletion, which are also listed in Table 1 in the Docket.

All properties located within the boundary of the South Minn. Site except for the nine properties that still require sampling and/or remediation due to access issues meet all of the site completion requirements specified in Office of Solid Waste and Emergency Response (OSWER) Directive 9320.22, Close-Out Procedures for National Priorities List Sites for all media. The properties that are not included in this partial deletion are shown generally on the figure labeled South Minneapolis Remedial Action and are listed in Table 1 in the Docket and include: Three properties that still require remediation (located on East 23rd Street, East 21st Street and East 22nd Street); five properties that still require sampling [located on East 26th Street, 12th Avenue South (two properties, one of which is now a community garden), 30th Avenue South and 14th Avenue South]; and one partially sampled property located on 19th Avenue South. All parks, schools, community gardens (except the community garden located on 12th Avenue South that is one of the nine properties that still requires sampling and/or remediation), playgrounds associated with church schools and the cemetery located within the South Minn. Site boundary also meet all of the site completion requirements specified in Office of Solid Waste and Emergency Response (OSWER) Directive 9320.22, Close-Out Procedures for National Priorities List Sites for all media.

All cleanup actions and remedial action objectives for the properties included in this partial deletion as set forth in the ROD have been implemented for all pathways of exposure. The selected remedial action, remedial action objectives and associated cleanup levels for surface and subsurface soil for these properties are consistent with EPA policy and guidance. No further Superfund response is necessary to protect human health or the environment at the residential properties, parks, schools, community gardens, playgrounds associated with church schools or the cemetery located within the boundary of the South Minn. Site, excluding the nine properties that still require sampling and/or remediation.

Section 300.425(e) of the NCP states that a Superfund site or a portion of a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Minnesota, has determined that all required response actions have been implemented for all residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery located within the boundary of the South Minn. Site, except for the nine properties that still require sampling and/or remediation, and that no further response action by EPA is appropriate for these properties.

EPA, with concurrence of the State of Minnesota, through the MDA, has determined that all appropriate response actions under CERCLA have been completed for all residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery located within the boundary of the South Minn. Site, excluding the nine properties that still require sampling and/or remediation. Therefore, EPA is deleting all residential properties, parks, schools, community gardens, playgrounds associated with church schools and the cemetery located within the boundary within the boundary of the South Minn. Site from the NPL except for the nine properties that still require sampling and/or remediation.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 30, 2019 unless EPA receives adverse comments by August 30, 2019. If adverse comments are received within the 30-day public comment period, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and the partial deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion V. Deletion Action I. Introduction

EPA Region 5 is publishing this direct final Notice of Deletion of the Buckeye Site from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Buckeye Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Buckeye Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

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

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

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

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Buckeye Site:

(1) EPA consulted with Ohio prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided Ohio 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and Ohio, through the OEPA, has concurred on the deletion of the Buckeye Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, an advertisement of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, The Times-Leader. The newspaper advertisement announces the 30-day public comment period concerning the Notice of Intent to Delete the Buckeye Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Buckeye Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Buckeye Site from the NPL:

The Buckeye Site (CERCLIS ID: OHD980509657) is located approximately 4 miles southeast of the City of St. Clairsville and 1.2 miles south of Interstate 70 in Belmont County, Ohio. The northeast corner of the Buckeye Site is bordered by Interstate 470, which is located about 3,000 feet north of the landfill.

The Buckeye Site occupies approximately 100 acres of land surrounded by a chain link fence. The Buckeye Site extends approximately 0.70 miles from north to south and varies from 500 to 1,000 feet wide (see Figure 1 in the Docket). Access is provided by a road located at the north entrance of the Buckeye Site.

The Buckeye Site is situated in the Kings Run drainage ravine and is bordered by Kings Run to the east and an unnamed stream to the west. Kings Run flows to the south and empties into Little McMahon Creek. The property surrounding the Buckeye Site to the east and west is hilly and mostly forested. Farmland and a strip mine are located west of the property. The land to the south is forested with steep slopes cleared for industrial use along the stream valleys and roadways. An environmental transfer station and additional farmland extend to the north and northeast of the Buckeye Site.

The groundwater at the Buckeye Site is not being used as a source of drinking water, and the Belmont County Water and Sewer District supplies the nearest neighborhood with drinking water. Residents closest to the Buckeye Site, including a nearby resident downstream of Kings Run, obtain drinking water from the county and not private wells.

The Buckeye Site was used for deep underground coal mining activities until the early 1950s. In 1971, the Belmont County Health Department licensed the Buckeye Site for use as a municipal solid waste landfill. The landfill was operated by the Ohio Resources Corporation under the name of Buckeye Reclamation Company.

The landfill accepted municipal solid waste, as well as industrial sludge and liquids, most of which were received between 1976 and 1979. The industrial wastes were disposed in a 50-acre waste pit located in the northern section of the landfill.

EPA and OEPA began investigating the Buckeye Site in the 1980s to determine whether the landfill posed a potential risk to public health and the environment. EPA and OEPA identified 12 contaminants of concern (COCs) in the waste pit, soil, leachate, groundwater, and surface water. These COCs accounted for the majority of the health-based risk posed by the Buckeye Site. The COCs included the inorganic contaminants arsenic, beryllium, lead, cadmium, chromium, and nickel. The organic COCs were benzene, trichloroethene, carbon tetrachloride, 1,1-dichloroethene, polycyclic aromatic hydrocarbons, and toluene.

EPA proposed the Buckeye Site to the NPL on December 30, 1982 (47 FR 58476). EPA finalized the NPL listing for the Buckeye Site on September 8, 1983 (48 FR 40658).

Current use of the 91.1-acre landfill area and an additional 349.6 acres of surrounding property affected by the landfill is restricted by an Ohio Uniform Environmental Covenants Act (UECA) restrictive covenant. The restrictive covenant applies to four parcels of land (see Figure 3 in the Docket). The covenant prohibits drilling, digging, and construction on the parcels; restricts parcel use to commercial/industrial uses; and prohibits the consumption of groundwater. The neighborhood closest to the Buckeye Site is supplied with drinking water by the Belmont County Water and Sewer District.

EPA identified several potentially responsible parties (PRPs) for the landfill including the landfill operator and several waste generators. In 1985, a group of the PRPs agreed to conduct a remedial investigation and feasibility study (RI/FS) at the Buckeye Site pursuant to an administrative order on consent. The purpose of the RI/FS was to define the nature and extent of the contamination at the landfill, assess risks, and evaluate cleanup alternatives.

The PRPs investigated the contaminant source area (the landfill), soil, surface water, sediment, leachate, groundwater, and air. The RI found various levels of carcinogenic and noncarcinogenic chemicals in all media sampled, except air. The RI indicated that there were three sources of contamination at the Buckeye Site: (1) Industrial waste disposed in or around the waste pit, (2) solid waste disposed in the general landfill area, and (3) coal mine refuse placed in the area before landfilling operations began. The PRPs completed the RI in 1989.

The PRPs conducted an endangerment assessment (EA) to determine the extent of the threat to public health and the environment posed by the Buckeye Site under present and future conditions, and to determine which aspects of the Buckeye Site warranted remediation. The PRPs submitted a draft EA Report in 1989. EPA and OEPA had a significant number of comments on the EA Report and did not approve the report. EPA retained a contractor to address EPA's and OEPA's comments on the draft EA Report. EPA's contractor completed a final EA Report in 1990.

The EA Report concluded that three significant exposure and contaminant routes existed at the Buckeye Site. These routes were: (1) Dermal contact, inhalation and ingestion of surface soils, (2) migration of contaminants from surface and subsurface soils into groundwater and surface water, and (3) ingestion of contaminated groundwater and surface water.

The EA indicated that the Buckeye Site posed an unacceptable cancer risk to current adult and adolescent dirt-bike riders at the landfill. The unacceptable cancer risks were primarily due to dust inhalation and ranged from 3.76 × 10 −4 to 1.05 × 10 −3 for average and maximum chemical concentrations. The EA did not identify any noncancer risks under the current exposure scenario, or any cancer or noncancer risks to current off-site well users.

The EA identified unacceptable cancer and noncancer risks to future residents at the Buckeye Site under a potential future residential scenario. The risks were due to exposure to contaminated soil, groundwater and surface water. The cancer risks for potential future residential exposure ranged from 6.53 × 10 −3 for average chemical concentrations to 1.48 × 10 −2 for maximum chemical concentrations. The estimated noncancer risks for potential future residential exposure were a hazard index (HI) of 7.81 to 21.3 assuming average and maximum chemical concentrations. EPA generally considers a cancer risk greater than 1 × 10 −4 or an HI greater than 1 as an unacceptable risk which may require action.

The RI showed that most of the groundwater underlying the Buckeye Site migrates laterally into the coal mine refuse at the Buckeye Site and is discharged as leachate to Kings Run. This means that most of the groundwater at the Buckeye Site becomes surface water before leaving the property. Therefore, EPA and OEPA determined that groundwater and surface water could be treated under a single remedial action objective (RAO).

The PRPs conducted a macroinvertebrate population survey and a fish population survey as part of the EA. The survey documented that the Buckeye Site was impacting nearby streams and stream beds. Where organisms were present at all, the communities were dominated by pollution-tolerant species. The monitoring data, however, was not able to distinguish between environmental impacts due to the waste disposal practices at the landfill or to the acid mine drainage from past mining operations at the Buckeye Site.

The PRPs completed an FS to develop and evaluate cleanup alternatives to address the unacceptable risks posed by the Buckeye Site in 1990. The FS evaluated five cleanup alternatives: No action; hazardous waste landfill cap and groundwater and surface water collection with chemical treatment; hazardous waste landfill cap and groundwater and surface water collection with wetlands treatment; solid waste landfill cap and groundwater and surface water collection with chemical treatment; and solid waste landfill cap and groundwater and surface water collection with wetlands treatment.

EPA selected a cleanup remedy for the Buckeye Site in an August 19, 1991 Record of Decision (ROD). EPA's RAO for the cleanup is to protect public health and the environment from contaminants in surface and subsurface soil, groundwater and surface water at the Buckeye Site by: (1) Limiting direct physical contact with contaminated soils to reduce the threat of dermal contact, inhalation, and ingestion; and (2) Restoring the groundwater and surface water to a useful, less threatening state by reducing the levels of contamination.

EPA selected Alternative 4B as the cleanup remedy. Alternative 4B involves the following remedial components: (1) Solid waste landfill cap; (2) Institutional controls; (3) Fencing; (4) Groundwater collection; (5) Surface leachate seep collection; (6) Groundwater monitoring; (7) Surface leachate seep monitoring; (8) Monitoring of Kings Run; and (9) Groundwater/leachate treatment by constructed wetlands (Option B). This option involves constructing a groundwater/leachate collection system to intercept leachate, groundwater and acid mine drainage from the landfilled area (all of which have low pH values) and channeling it to the wetlands treatment system.

During the remedial design (RD) phase of the project, the PRPs conducted several predesign studies to collect additional information to design and implement the selected remedy. The PRPs' predesign studies included hydrogeologic studies, a landfill cap study, a constructed wetlands study, borrow area studies and a slope stability study.

Based on the results of the predesign studies, EPA issued modifications to the selected remedy in a July 17, 1997 Explanation of Significant Differences (ESD). The remedy modifications included: (1) A reduction, from 97 to 37 acres, of the area over which a solid waste landfill cap would be constructed; (2) Construction of a vegetated soil cap over an area of 24 acres; (3) Repair of the existing cap over approximately 29 acres; (4) Modification of the slope of the cap bordering a portion of Kings Run; (5) Realignment and lining of Kings Run; (6) Elimination of the Northern Impoundment; (7) Deferral of the groundwater/leachate treatment system until after cap construction and monitoring to determine if a treatment system is required [to be conducted as Phase II of the remedial action (RA)]; and (8) Modification of the description of groundwater samples to be used for determination of background levels in groundwater.

EPA and 14 PRPs signed a Consent Decree that became effective on March 17, 1998. The Consent Decree required the PRPs to implement the selected remedy in the 1991 ROD, as modified by the 1997 ESD. The PRPs conducted the RA in two phases.

During the Phase I RA, the PRPs implemented all aspects of the selected remedy except the deferred groundwater/leachate wetlands treatment system. The PRPs also conducted four rounds of quarterly groundwater, surface water and leachate monitoring. Based on the monitoring data, EPA issued a second ESD for the Buckeye Site on August 15, 2003. The 2003 ESD documented the following decisions and additional changes to the remedy:

(1) The low pH values in surface water and leachate are directly related to acid mine drainage and are considered background;

(2) The flows from Kings Run and the landfill leachate collection system will be combined for off-site discharge to Little McMahon Creek;

(3) The Ohio criteria, as modified by the Ohio Revised Code Chapter 6111 Water Pollution Control Act, reflect the current OEPA risk and ecological information and these changes in general improve the quality of surface waters in Ohio. These new criteria replace the “Final Effluent Limitations and Monitoring Requirements for the Buckeye Site provided in Sections A.1 and A.2 of ROD Attachment A;

(4) Monitoring of the combined flow will be conducted monthly at a location downgradient of the combined flows, for two years starting in February 2004. At the end of two years the data will be evaluated, and the monitoring requirements reviewed. If the discharge standards are not met during or at the end of the two-year monitoring period, the provisions for surface water treatment will be revisited; and

(5) No additional groundwater/leachate collection mechanisms will be required.

EPA issued a third ESD for the Buckeye Site on September 16, 2011. The 2011 ESD documents EPA's decision, based on seven years of monitoring data and other information, that it was necessary to construct the treatment wetlands to treat the groundwater/leachate at the Buckeye Site. The 2011 ESD also documented a significant change in the design and operation and maintenance (O&M) requirements of the treatment wetlands compared to the ROD's description of this component of the remedy.

Based on the post-ROD monitoring data, the 2011 ESD modified the total size and cell composition of the wetlands to reflect the actual treatment necessary to address current Buckeye Site conditions. The 2011 ESD also allows for future changes to wetlands performance monitoring frequency and/or monitoring parameters as approved by EPA.

The PRPs began the Phase I RA construction work in April 1999. EPA and OEPA conducted a pre-final inspection on August 29, 2001, and a final inspection on September 27, 2001. During the final inspection EPA and OEPA determined that the PRPs constructed the remedy in accordance with the Phase I RD plans and specifications.

The Phase I RA construction work included the following: (1) Construction of a solid waste landfill cap over approximately 37 acres with a passive landfill gas collection and venting system; (2) Construction of a vegetated cap over approximately 24 acres; (3) Repair of existing cover where necessary over approximately 29 acres; (4) Realignment and lining of Kings Run; (5) Elimination of the Northern Impoundment; (6) Installation of surface water management structures; (7) Construction of access roads; (8) Installation of perimeter fencing; and (9) Installation of groundwater/leachate seep collection boxes, a French drain, and a groundwater/leachate transport pipe.

EPA signed a Preliminary Close Out Report (PCOR) on May 14, 2003 documenting that the RA construction at the Buckeye Site was complete. The completion of the Phase I RA and documentation of the Phase I RA Construction Quality Control/Quality Assurance Program is provided in the PRPs' November 7, 2001 Phase I Remedial Action Construction Completion Report.

Based on the quarterly leachate monitoring data available at the time of the PCOR, EPA believed that the Phase II RA work was not required. Additional monitoring conducted subsequent to the PCOR, however, indicated that the Phase II RA work was needed, which EPA documented in the 2011 ESD.

The PRPs initiated the Phase II RA construction work on September 12, 2011. The Phase II RA involved constructing the treatment wetlands for the collected groundwater and leachate. EPA approved the PRPs' wetlands design plans in September 2011. The PRPs substantially completed the Phase II RA construction work by November 14, 2011.

The treatment wetlands system is designed to capture the flow from the Groundwater/Leachate Transport Pipe, Kings Run French Drain, Seep L-4, and Seep A and treat the water in two wetland cells. The cells are partially lined with limestone and the collected groundwater/leachate flows from one treatment cell to the other via gravity flow. The treated water then discharges into the existing principal spillway and into Kings Run, which discharges into Little McMahon Creek. The Phase II RA also included the construction of planting shelves and discharge and outfall structures. See Figure 2 in the Docket.

The objective of the treatment system is to raise the pH of the collected water, reduce the concentrations of COCs to acceptable levels prior to discharge, and meet the surface water discharge limits in Attachment B of the 2003 ESD. In addition, the wetlands system uses passive aeration and pH-adjustment to precipitate and remove dissolved iron and other metals from the groundwater/leachate, resulting in a reduction of the orange/red color and iron precipitate embedment observed in Kings Run.

Documentation of the PRPs' Phase II RA and Phase II Construction Quality Control/Quality Assurance Program is provided in the PRPs' June 20, 2012 Phase II Remedial Action Construction Completion Report.

The remedy for the landfill materials and contaminated soil at the Buckeye Site is a containment remedy; therefore, the 1991 ROD does not establish cleanup levels for the landfill materials or soil.

The contaminated groundwater/leachate at the Buckeye Site is addressed by the constructed wetlands collection and treatment system. The 1991 ROD did not establish specific quantitative performance criteria for groundwater/leachate treatment. Instead, the ROD included final effluent limitations and monitoring requirements for the discharge of the treated groundwater and leachate to Little McMahon Creek.

EPA updated the discharge requirements for the Buckeye Site in the 2003 ESD (see Attachment B of the 2003 ESD, ESD Limits and Monitoring Requirements for Buckeye Reclamation Landfill Authorized Discharges, in the Docket). The updated discharge requirements are based on the regulations in the Ohio Revised Code Chapter 6111 Water Pollution Control Act and apply to the combined flow from Kings Run and the landfill groundwater/leachate wetlands treatment system at location KR-2, prior to discharging to Little McMahon Creek (see Figure 2 in the Docket).

EPA issued a third ESD, which addressed discharge requirements, in 2011. The 2011 ESD allows for future changes to the monitoring frequency and/or monitoring parameters if approved in writing by EPA. In 2014, as allowed by the 2011 ESD, EPA approved a reduction in the monitoring frequency for KR-2, from monthly to every two months.

Wetland and surface water monitoring data collected by the PRPs from December 2011 to December 2016 indicate that the wetlands are generally operating in accordance with the 2011 Engineering Design objectives. The key wetlands design objective is 20 to 40 percent iron removal, and the wetlands are typically achieving a 50 to 60 percent iron removal. Frequent low-pH values are detected in the wetlands discharge during periods of low flow and are most likely due to iron hydroxide precipitation/accumulation coupled with the influence of less buffering and retention capacity in wetlands treatment Cell #2. In 2015, the PRPs augmented the wetlands with additional limestone to mitigate this effect.

The surface water monitoring data collected downstream from the constructed wetlands at location KR-2 have demonstrated ongoing compliance with the discharge limits except for low pH and occasional exceedances of Whole Effluent Toxicity (WET) test limits. Similar to the pH values found in the wetlands samples, low pH values in the surface water samples tend to correspond with periods of low flow and low precipitation. Overall, discharge water quality has improved since the construction of the treatment wetlands system, as demonstrated by an overall improvement in the WET test results and the removal of significant amounts of iron (approximately 20 tons per year), indicating that the system is working effectively.

Additional information concerning the wetlands and surface water monitoring data is available in the 2018 6th Annual Wetland/SWCMP Report in the Docket.

Although there are no cleanup standards for groundwater, the PRPs conduct semiannual long-term groundwater monitoring at the Buckeye Site in accordance with the January 2004 Phase I RA O&M Plan. Approximately 32 rounds of groundwater monitoring data have been collected at the Buckeye Site since the Phase I RA construction work was completed in 2001.

The groundwater monitoring well network consists of 15 monitoring wells in the three hydrogeologic units of concern at the Buckeye Site: The Unconsolidated Materials/Mine Refuse unit, the Benwood Limestone unit, and the Redstone Limestone unit (see Figure 1.1 in the Docket). The groundwater monitoring indicates that a few organic compounds continue to be very infrequently detected at low estimated concentrations that do not exceed Maximum Contaminant Levels (MCLs). Arsenic continues to be detected above MCLs in a groundwater monitoring well installed in the Unconsolidated Materials/Mine Refuse unit, but was not detected in any of the other groundwater monitoring wells or hydrogeological units. A few other metals and general chemistry parameters are also present at levels above secondary MCLs. See Figures 2.1 to 2.3 and Table 1.1 in the Docket.

The primary COCs identified at concentrations above MCLs and/or above background values in all three hydrogeological units at the Buckeye Site are: Sulfate, iron, chloride, manganese, total dissolved soils, and di(2-ethylhexyl) phthalate. These COCs have only secondary MCLs. Arsenic is present at concentrations above the MCL, but only in one well located in the Unconsolidated Materials/Mine Refuse unit.

The concentrations of the groundwater constituents decrease to below detection limits before moving beyond the Buckeye Site boundaries. In addition, the concentrations of the significant groundwater constituents at the Buckeye Site have been relatively stable over the past eight years. Groundwater at the Buckeye Site is not used as a source of drinking water, and the closest neighborhood is supplied with water from the Belmont County Water and Sewer District.

The most recent groundwater monitoring results for the Buckeye Site are available in the 2019 Groundwater Monitoring Program Report, Year 17, Round 2, in the Docket.

On December 1, 2017, EPA's Office of Superfund Remediation and Technology Innovation (OSRTI) and Region 5 held a conference call to discuss the proposal for Per- and Polyfluoroalkyl Substances (PFAS) sampling at the Buckeye Site prior to proposing the Buckeye Site for deletion from the NPL. Based on the waste that was deposited at the Buckeye Site and the length of time that the landfill was open, OSRTI concurred that sampling was warranted to determine whether PFAS is present.

On June 5, 2018, EPA approved the PRPs' Quality Assurance Project Plan (QAPP), Per- and Polyfluoroalkyl Substances Amendment, Revision No. 5. In July 2018, with EPA field oversight, the PRPs collected samples for PFAS analysis from the complete network of 15 groundwater monitoring wells (shown on Figure 4 in the Docket) and from three surface water monitoring locations (KR-1, KR-2 and KR-3, shown on Figure 2 in the Docket). The PRPs submitted the samples to TestAmerica Laboratories, Inc. to run analytical method EPA 537 Modified. EPA collected split samples at each sample location and submitted the samples to its Chicago Regional Lab (CRL) to run CRL Standard Operating Procedure OM021, which references American Society for Testing and Materials Method 7979.

Because many materials potentially can contain PFAS, a conservative PFAS sampling protocol was implemented to avoid cross-contamination. It is important to note that at the time of the PFAS sampling, there were no EPA-approved methods for the preparation and analysis of PFAS samples in media other than drinking water. (EPA's approved method for PFAS in drinking water is EPA Method 537.) The groundwater and surface water that was sampled is not drinking water.

Review of the two data sets, the PRPs' and EPA's, indicate comparable results with no major differences or significant data issues. The majority of the EPA sample results for the sum of the concentrations for two main PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), were non-detect, while the PRPs' sample results had more detections. In both cases, the sums of the concentrations of PFOA and PFOS for EPA's and the PRPs' individual samples, were well below 70 nanograms per liter (ng/L) (equivalent to 70 parts per trillion), which is EPA's non-regulatory lifetime Health Advisory for drinking water.

The maximum concentration of the sum of PFOA/PFOS detected in EPA's groundwater samples was 12.8 ng/L. The maximum concentration of the sum of PFOA/PFOS detected in the PRPs' groundwater samples was 16.8 ng/L.

EPA's surface water results at surface water sampling locations KR-3 (upstream of the Buckeye Site) and KR-1 (adjacent to the Buckeye Site) for the sum of PFOA/PFOS were non-detect. EPA's surface water sampling result for the sum of PFOA/PFOS at location KR-2 (downstream of the Buckeye Site) was 11.7 ng/L. The PRPs' surface water results for the sum of PFOA/PFOS at the three surface water sampling locations were: 5.3 ng/L at KR-3, 6.50 ng/L at KR-1, and 10.6 ng/L at KR-2.

Based on the PFAS data, EPA believes that PFAS is not significantly present at the Buckeye Site. Additionally, groundwater at the Buckeye Site is not used as a source of drinking water and the closest residential area to the Buckeye Site is supplied with water from the Belmont County Water and Sewer District. EPA has therefore concluded that further PFAS investigation at the Buckeye Site is not warranted and that the Buckeye Site remains eligible for NPL deletion.

The PRPs' contractor conducts long-term O&M at the Buckeye Site in accordance with the revised January 2004 O&M Plan for the Phase I RA work and the June 2012 O&M Plan for the Phase II RA work (Appendix B of the 2012 Phase II RA and Construction Completion Report).

The selected remedy does not include any actively-operating systems. Phase I O&M activities for the Buckeye Site address the Phase I remedial components ( e.g., landfill cap, passive gas collection system components, channels, roads, fence, etc.) and include regular inspections, routine and unscheduled maintenance, quarterly Buckeye Site inspections, long-term groundwater monitoring, and annual explosive gas monitoring and reporting. Phase II O&M activities for the Buckeye Site include wetlands performance and surface water monitoring.

Additional information about the O&M activities and monitoring results at the Buckeye Site is available in the Docket in the 2016 Phase I and II Remedial Action Post Closure Operation and Maintenance Inspection Report, the 2018 6th Annual Wetland/SWCMP Report, and the 2019 Groundwater Monitoring Program Report, Year 17, Round 2.

The selected remedy includes institutional controls (ICs) as a remedy component. EPA determined that ICs in the form of proprietary controls were needed for all properties affected by the approximately 100-acre landfill cap at the Buckeye Site. The proprietary control implemented on these parcels is a Uniform Environmental Covenants Act (UECA) restrictive covenant. On February 21, 2013, the property owner recorded an Environmental Covenant with the Belmont County Recorder's Office, Instrument No. 2013000020080. Four (4) parcels of real property which together contain 440.658 acres are subject to the covenant.

The environmental covenant prohibits drilling, digging, and construction on the parcels, restricts parcel use to commercial/industrial, and prohibits the consumption of groundwater. A copy of the environmental covenant is provided in the Docket. The covenant is an effective control to assure long-term protectiveness for any areas of the Buckeye Site which do not allow for unlimited use and unrestricted exposure (UU/UE).

Long-term stewardship is addressed at the Buckeye Site through the implementation of the environmental covenant, in conjunction with engineering controls and routine O&M inspections, to ensure that the remedy continues to function as intended. The Buckeye Site achieved EPA's Site-Wide Ready for Anticipated Use designation on May 1, 2013.

The Buckeye Site requires statutory five-year reviews (FYRs) due to the fact that hazardous substances, pollutants, or contaminants remain at the Buckeye Site above levels that allow for UU/UE.

EPA completed the third FYR for the Buckeye Site in May 2014. The 2014 FYR found that the site-wide remedy is protective of human health and the environment. Exposure pathways that could result in unacceptable risks are being controlled and monitored. An environmental covenant is in place and restricts parcel use that would defeat or impair the effectiveness of the remedial measures. The environmental covenant prohibits drilling, digging, and construction on the parcels, restricts parcel use to commercial/industrial activities, and prohibits the consumption of groundwater.

The 2014 FYR did not identify any issues that affect the protectiveness of the remedy at the Buckeye Site. The FYR, however, noted that further data collection and evaluation are needed to determine the effectiveness of the constructed wetlands and the achievement of the design goals over the long-term.

In 2016, the PRPs addressed the concerns identified in the 2014 FYR by removing sediment from the wetland, replacing the iron-encrusted limestone in Cell #1 with fresh limestone, and placing limestone in Cell #2. In 2017, the PRPs also implemented additional monitoring to assist in further evaluating the low pHs observed in the wetlands discharge and at KR-2 and to evaluate other wetlands performance and surface water quality conditions.

Over time, long-term trends for the constructed wetland will be available from the continued required monitoring and reporting, such as the effects of seasonal weather conditions on the efficiency of the wetland, the effectiveness of the wetlands in adjusting the pH and removing iron from the collected groundwater/leachate, and the impact of the wetlands system on the water quality of Kings Run and Little McMahon Creek.

Copies of the 2004, 2009 and 2014 FYR Reports are available in the Docket. EPA expects to complete the next FYR for the Buckeye Site in 2019.

EPA satisfied public participation activities for the Buckeye Site as required by Sections 113(k)(2)(B)(i-v) and 117 of CERCLA, 42 U.S.C. 9613(k)(2)(B)(i-v) and 9617. EPA established local information repositories for the Buckeye Site at the St. Clairsville Public Library in Clairsville, Ohio and at the Neffs Branch of the Martins Ferry Public Library in Neffs, Ohio. EPA maintains a copy of the administrative record documents for the Buckeye Site at the local information repositories and at EPA's Region 5 office.

EPA released the FS Report and its proposed cleanup plan for the Buckeye Site to the public in May 1991 at the start of the public comment period. EPA published newspaper announcements advertising the proposed cleanup plan for the Buckeye Site, the 30-day public comment period, and the availability of a public meeting, in The Times Leader, Martins Ferry, Ohio and in The Intelligencer, in Wheeling, West Virginia. EPA also mailed a fact sheet summarizing the proposed cleanup plan to individuals on the Site mailing list.

EPA and OEPA conducted a public meeting on May 30, 1991, to explain the details of the Buckeye Site RI/FS and proposed cleanup plan, answer questions from the community, and accept public comments. A court reporter was present to record the meeting. EPA also distributed copies of the Proposed Plan fact sheet at the meeting.

EPA received a request for a 10-day extension to the public comment period on May 31, 1991. EPA granted the extension, which ran until June 26, 1991. EPA placed a public notice in The Intelligencer and The Times Leader announcing the extension to the public comment period. EPA responded to the comments received during the public comment period in a Responsiveness Summary attached to the 1991 ROD.

As part of the FYR process, EPA published advertisements announcing EPA's FYRs for the Buckeye Site in the local newspaper, The Times Leader, on October 23, 2008 and February 2, 2014. The newspaper announcements informed the community about the start and purpose of the FYRs and invited the public to submit comments and concerns about the Buckeye Site to EPA. EPA placed copies of the 2004, 2009 and 2014 FYR Reports in the local information repositories in the St. Clairsville and Martins Ferry public libraries, and made them available on EPA's website.

EPA arranged to publish an advertisement announcing the publication of this rule and the 30-day public comment period in The Times Leader concurrent with publishing this deletion in the Federal Register . Documents in the deletion docket, which EPA relied on to support the deletion of the Buckeye Site from the NPL, are available to the public at the Buckeye Site information repositories and at http://www.regulations.gov.

The June 21, 2019, Final Close Out Report documents that the PRPs have successfully implemented all appropriate response actions at the Buckeye Site in accordance with the 1991 ROD, the 1997, 2003 and 2011 ESDs, and EPA's Close Out Procedures for National Priorities List Sites (OLEM Directive 9320.2-22, May 2011).

The cleanup actions specified in 1991 ROD and the 1997, 2003 and 2011 ESDs have been implemented and the Buckeye Site meets acceptable risk levels for all media and exposure pathways. The environmental covenant and long-term stewardship actions required at the Buckeye Site are consistent with EPA policy and guidance.

The landfill materials and contaminated soil at the Buckeye Site are contained with a low-permeability solid waste cap. Contaminated groundwater and leachate are collected and treated by the constructed wetlands collection and treatment system prior to discharging to King's Run and Little McMahon Creek. Surface water compliance sampling confirms that the Buckeye Site is meeting discharge criteria except for occasional detections of low pH and exceedances of WET test limits, which tend to correspond with periods of low flow and low precipitation. Overall, the quality of the discharge water has improved since the construction of the treatment wetlands system, as demonstrated by an overall improvement in the WET test results and the removal of significant amounts of iron (approximately 20 tons per year), indicating that the system is working effectively.

Routine O&M, groundwater and surface water monitoring, the environmental covenant and FYRs confirm that the Buckeye Site no longer poses a significant threat to human health or the environment. Therefore, EPA has determined that no further Superfund response is necessary at the Buckeye Site.

The NCP (40 CFR 300.425(e)) states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Ohio, has determined that all required response actions have been implemented at the Buckeye Site and that no further response action is appropriate.

The EPA, with concurrence of the State of Ohio through the OEPA, has determined that all appropriate response actions under CERCLA, other than operation and maintenance, monitoring and five-year reviews, have been completed at the Buckeye Site. Therefore, EPA is deleting the Buckeye Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 30, 2019 unless EPA receives adverse comments by August 30, 2019. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

This is a summary of the Auction 104 Procedures Public Notice, released June 6, 2019. The complete text of the Auction 104 Procedures Public Notice, including attachment and any related document, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. ET Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The Auction 104 Procedures Public Notice and related documents also are available on the internet at the Commission's website: www.fcc.gov/auction/104, or by using the search function for AU Docket No. 19-61 on the Commission's Electronic Comment Filing System (ECFS) web page at http://www.fcc.gov/ecfs /.

1. Background. Certain LPTV stations and TV translator stations (collectively referred to as LPTV/translator stations) were displaced by the broadcast incentive auction which resulted in channel reassignments of certain full power and Class A television stations. As a result, a number of LPTV/translator stations were displaced from their channels.

2. Displacement applications for eligible LPTV/translator stations filed during the 2018 Special Displacement Window permitted staff to determine which applicant engineering proposals were mutually exclusive with other applicant proposals. After opportunity to resolve mutual exclusivity (MX) by settlement or technical modification of their engineering proposals, the MX LPTV/translator engineering proposals that remain will be resolved by competitive bidding.

3. The Incentive Auction Task Force (IATF) and Media Bureau (MB), in conjunction with the Office of Economics and Analytics (OEA), released a public notice seeking comment on competitive bidding procedures to be used in Auction 104 to resolve the then-remaining 6 groups of MX applications. A summary of that public notice was published at 84 FR 15167, April 15, 2019.

4. Five entities with pending MX LPTV applications filed six comments and/or reply comments in response to the Auction 104 Comment Public Notice. Several commenters request that the Commission resolve prior to the start of the auction outstanding pleadings that were filed against applicants in the MX groups to provide potential bidders with greater certainty and to encourage settlements. On April 26, 2019, the Media Bureau issued rulings denying the outstanding pleadings. In light of those actions, comments seeking action on the informal objections are now moot. In addition, one reply commenter argued that the Commission should allow those decisions, and any subsequent petitions for reconsideration or applications for review, to become final before bidding in the auction begins. The Media Bureau, however, has acted on all outstanding pleadings and settlement proposals that involve parties that can become eligible to bid in Auction 104. There will be no delay in bidding to await final resolution of any such legal challenges.

5. Starting on April 18, 2019, the freeze was lifted on the filing of displacement and digital companion channel applications related to LPTV/translator stations. Applicants listed in Attachment A of the Auction 104 Procedures Public Notice were free to continue to enter into and submit settlement agreements for their MX groups up until 6 p.m. on July 22, 2019, the short-form application deadline for Auction 104. At that point, the prohibition on certain communications between auction applicants applies and no further discussions with other Auction 104 applicants regarding the auction, including settlements and bids or bidding strategies, will be permitted until after the close of the auction when the prohibition no longer applies. Thus, after 6 p.m. ET on July 22, 2019, applicants listed in Attachment A will not be able to resolve their application's mutual exclusivity except through the competitive bidding process, including payment of the applicable minimum opening bid.

6. Relevant Authority. An applicant listed in Attachment A of the Auction 104 Procedures Public Notice may become qualified to bid only if it complies with the competitive bidding filing, qualification, and payment requirements, and otherwise conforms to applicable rules, policies, and procedures. Accordingly, Auction 104 applicants should familiarize themselves thoroughly with the Commission's general competitive bidding rules (47 CFR part 1, subpart Q), including recent amendments and clarifications, as well as Commission decisions in proceedings regarding competitive bidding procedures, application requirements, and obligations of Commission licensees. Applicants should also familiarize themselves with the Commission's rules relating to the television broadcast service, as well as Commission orders concerning competitive bidding for broadcast construction permits. Applicants must also be thoroughly familiar with the procedures, terms and conditions contained in the Auction 104 Procedures Public Notice and any future public notices that may be released in this proceeding.

7. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in its public notices at any time, and it will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of all applicants to remain current with all Commission rules and with all public notices pertaining to this auction.

8. Construction Permits and Entities Eligible to Participate in Auction 104. Auction 104 is a closed auction; only those individuals or entities listed in Attachment A to the Auction 104 Procedures Public Notice are eligible to complete the remaining steps to become applicants qualified to bid in this auction. Each listed applicant may become a qualified bidder only for the construction permit(s) specified for that applicant in Attachment A of the same public notice. Each of the engineering proposals within each MX group is directly mutually exclusive with one another; therefore, no more than one construction permit will be awarded for each MX group identified in Attachment A. Once mutually exclusive applications are accepted and thus mutual exclusivity exists for auction purposes, an applicant cannot obtain a construction permit without placing a bid, even if no other applicant for that particular construction permit becomes qualified to bid or in fact places a bid.

9. If parties entered into and submitted prior to 6 p.m. on July 22, 2019, a settlement agreement and supporting documentation that is determined to be fully in accordance with the Commission's rules and which completely resolves the mutual exclusivity, that MX group will be removed from the auction and any remaining engineering proposals of that MX group will be processed under standard licensing procedures.

10. General Information Regarding Short-Form Applications. An application to participate in Auction 104, referred to as a short-form application or FCC Form 175, provides information that the Commission uses to determine whether the applicant is legally, technically, and financially qualified to participate in Commission auctions for licenses or permits. The short-form application is the first part of the Commission's two-phased auction application process. In the first phase, parties desiring to participate in the auction must file a streamlined, short-form application in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on the applicant's short-form application and certifications, and on its upfront payment, as explained below.

11. A party whose engineering proposal is listed on Attachment A of the Auction 104 Procedures Public Notice who wished to participate in the bidding in Auction 104 was required to file a short-form application (FCC Form 175) electronically via the Auction Application System prior to 6 p.m. ET on July 22, 2019, following the instructions prescribed in Attachment B to the Auction 104 Procedures Public Notice. Applications could have been filed for Auction 104 at any time beginning at noon ET on July 16, 2019, until the filing window closed at 6 p.m. ET on July 22, 2019. Applicants were strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. There are no limits or restrictions on the number of times an application can be updated or amended until the initial filing deadline on July 22, 2019.

12. An applicant must always click on the CERTIFY & SUBMIT button on the Certify & Submit screen to successfully submit its FCC Form 175 and any modifications; otherwise, the application or changes to the application will not be received or reviewed by Commission staff. The Commission periodically performs scheduled maintenance of its IT systems. During scheduled maintenance activities, which typically occur over the weekends, every effort is made to minimize any downtime to auction-related systems, including the auction application system. However, there are occasions when auction-related systems may be temporarily unavailable.

13. An applicant bears full responsibility for submitting an accurate, complete and timely short-form application. Each applicant must certify on its short-form application under penalty of perjury that it is legally, technically, financially and otherwise qualified to hold a license. Each applicant should read carefully the instructions set forth in Attachment B to the Auction 104 Procedures Public Notice and should consult the Commission's rules to ensure that, in addition to the materials described below, all the information required is included within its short-form application.

14. An individual or entity may not submit more than one short-form application for a single auction. If a party submits multiple short-form applications, only one application may be accepted for filing.

15. Each applicant should note that submission of a short-form application (and any amendments thereto) constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Applicants are not permitted to make major modifications to their applications; such impermissible changes include a change of the certifying official to the application. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution.

16. Authorized Bidders. An applicant must designate at least one authorized bidder, and no more than three, in its FCC Form 175. The Commission's rules prohibit an individual from serving as an authorized bidder for more than one auction applicant. Accordingly, the same individual may not be listed as an authorized bidder in more than one FCC Form 175 for Auction 104.

17. Construction Permits in Short-Form Application. Auction 104 applicants will not select permits when filing the FCC Form 175; the permit(s) on which the applicant is eligible to bid will automatically display on the FCC Form 175.

18. Disclosure of Agreements Relating to Permits Subject to Auction. An applicant must provide in its FCC Form 175 a brief description of, and identify each party to, any partnership, joint venture, consortium, or agreement, arrangement, or understanding of any kind relating to the LPTV/translator station permits that may be subject to auction, including any agreement that addresses or communicates directly or indirectly bids (including specific prices), bidding strategies (including the specific construction permit(s) or license(s) on which to bid or not to bid), or the post-auction market structure, to which the applicant, or any party that controls or is controlled by the applicant, is a party. For this purpose, a controlling interest includes all individuals or entities with positive or negative de jure or de facto control of the applicant or licensee. In connection with the agreement disclosure requirements, the applicant must certify under penalty of perjury in its FCC Form 175 that it has described, and identified each party to, any agreement, arrangement, or understanding of any kind relating to the permits being auctioned or relating directly or indirectly to bidding at auction with any other applicant, among others, into which the applicant has entered, or any party that it controls or is controlled by it, has entered. An auction applicant that enters into any agreement relating to the licenses being auctioned during an auction is subject to the same disclosure obligations it would be for agreements existing at the FCC Form 175 filing deadline, and it must maintain the accuracy and completeness of the information in its pending auction application.

19. For purposes of making the required agreement disclosures on the FCC Form 175, if parties agree in principle on all material terms prior to the application filing deadline, each party to the agreement that is submitting an auction application must provide a brief description of, and identify the other party or parties to, the agreement on its respective FCC Form 175, even if the agreement has not been reduced to writing. However, if the parties have not agreed in principle by the FCC Form 175 filing deadline, they should not describe, or include the names of parties to, the discussions on their applications.

20. In connection with 2015 amendments to the Part 1 competitive bidding rules, the Commission now prohibits any joint bidding arrangement, including arrangements relating to the permits being auctioned that address or communicate, directly or indirectly, bidding at the auction, bidding strategies, including arrangements regarding price or the specific permits on which to bid, and any such arrangements relating to the post-auction market structure. Joint bidding arrangements include arrangements relating to the construction permits or licenses being auctioned that address or communicate, directly or indirectly, bids or bidding strategies, including arrangements regarding price or the specific construction permits or licenses on which to bid, as well as any such arrangements relating to the post-auction market structure. The revised rule provides limited exceptions for a communication within the scope of any arrangement consistent with the exclusion from the rule prohibiting joint bidding, provided such arrangement is disclosed on the applicant's auction application. An applicant may continue to communicate pursuant to any pre-existing agreements, arrangements, or understandings that are solely operational or that provide for transfer or assignment of licenses, provided that such agreements, arrangements or understandings are disclosed on its application and do not both relate to the permits at auction and address or communicate bids (including amounts), bidding strategies, or the particular permits or licenses on which to bid or the post-auction market structure.

21. Although the Commission's rules do not prohibit auction applicants from communicating about matters that are within the scope of an agreement that has been excepted under the provisions of 47 CFR 1.2105(a)(2)(ix)(A)-(C), and that has been disclosed in that applicant's FCC Form 175, the Commission reminds applicants that certain discussions or exchanges could nonetheless touch upon impermissible subject matters, and that compliance with the Commission's rules will not insulate a party from enforcement of the antitrust laws.

22. Each applicant that is a winning bidder will be required following the close of the auction to disclose in an amendment to its displacement application the specific terms, conditions, and parties involved in any agreement relating to the licenses being auctioned into which it had entered prior to the time bidding was completed. This applies to any bidding consortia, joint venture, partnership, or other agreement, arrangement, or understanding of any kind entered into relating to the competitive bidding process, including any agreements relating to the permits being auctioned that address or communicate directly or indirectly bids (including specific prices), bidding strategies (including the specific permits on which to bid or not to bid), or the post-auction market structure, to which the applicant, or any party that controls or is controlled by the applicant, is a party. Failure to comply with the Commission's rules can result in enforcement action.

23. Ownership Disclosure Requirements. Each applicant must comply with the uniform part 1 ownership disclosure requirements and provide information required by 47 CFR 1.2105 and 1.2112, and, where applicable, 47 CFR 1.2110. Specifically, in completing the FCC Form 175, an applicant will be required to fully disclose information on the real party- or parties-in-interest and the ownership structure of the applicant, including both direct and indirect ownership interests of 10% or more, as prescribed in 47 CFR 1.2105 and 1.2112, and, where applicable, 47 CFR 1.2110. Each applicant is responsible for ensuring that information submitted in its FCC Form 175 is complete and accurate.

24. Foreign Ownership Disclosure Requirements. Section 310 of the Act requires the Commission to review foreign investment in radio station licenses and imposes specific restrictions on who may hold certain types of radio licenses. In completing the FCC Form 175, an applicant will be required to certify that it is in compliance with the foreign ownership provisions contained in 47 U.S.C. 310. See 47 CFR 1.2105(a)(2)(vi).

25. Prohibited Communications. The rules prohibiting certain communications set forth in 47 CFR 1.2105(c) and 73.5002(d) and (e) of the rules apply to each applicant that files a short-form application (FCC Form 175) in Auction 104. Section 1.2105(c)(1) of the Commission's rules provides that, subject to specified exceptions, after the deadline for filing a short-form application, all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other in any manner the substance of their own, or each other's, or any other applicant's bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline.

26. Entities Subject to 47 CFR 1.2105(c). An applicant for purposes of this rule includes the officers and directors of the applicant, all controlling interests in the entity submitting the FCC Form 175, as well as all holders of interests amounting to 10% or more of that entity.

27. A party that submits an application becomes an applicant under the rule at the application filing deadline and that status does not change based on later developments. Thus, an auction applicant that does not correct deficiencies in its application, fails to submit a timely and sufficient upfront payment, or does not otherwise become qualified, remains an applicant for purposes of the rule and remains subject to the prohibition on certain communications until the applicable down payment deadline.

28. Scope of Prohibition on Communications. The Commission updated and revised 47 CFR 1.2105(c)'s prohibition on communications by auction applicants in recent years. Significantly, the Commission in 2015 amended 47 CFR 1.2105(c) to extend the prohibition on communications to cover all applicants for an auction regardless of whether the applicants seek permits or licenses in the same geographic area or market.

29. In addition to express statements of bids and bidding strategies, the prohibition against communicating in any manner includes public disclosures as well as private communications and indirect or implicit communications. Consequently, an applicant must take care to determine whether its auction-related communications may reach another applicant.

30. Parties subject to 47 CFR 1.2105(c) should take special care in circumstances where their officers, directors, and employees may receive information directly or indirectly relating to any applicant's bids or bidding strategies. Such information may be deemed to have been received by the applicant under certain circumstances. For example, Commission staff have found that, where an individual serves as an officer and director for two or more applicants, the bids and bidding strategies of one applicant are presumed conveyed to the other applicant through the shared officer, which creates an apparent violation of the rule.

31. Subject to the exception described above, 47 CFR 1.2105(c)(1) prohibits applicants from communicating with specified other parties only with respect to their own, or each other's, or any other applicant's bids or bidding strategies. Moreover, a communication conveying bids or bidding strategies (including post-auction market structure) must also relate to the licenses being auctioned in order to be covered by the prohibition. Thus, the prohibition is limited in scope and does not apply to all communications between or among the specified parties.

32. Business discussions and negotiations that are unrelated to bidding in Auction 104 and that do not convey information about the bids or bidding strategies, including the post-auction market structure, of an applicant in either auction, are not prohibited by the rule. While 47 CFR 1.2105(c) does not prohibit business discussions and negotiations among auction applicants that are not auction related, each applicant must remain vigilant not to communicate, directly or indirectly, information that affects, or could affect, bids or bidding strategies. Certain discussions might touch upon subject matters that could convey price or geographic information related to bidding strategies. Such subject areas include, but are not limited to, management, sales, local marketing agreements, and other transactional agreements.

33. Communicating with Third Parties. Section 1.2105(c) does not prohibit an applicant from communicating bids or bidding strategies to a third-party, such as a consultant or consulting firm, counsel, or lender. The applicant should take appropriate steps, however, to ensure that any third party it employs for advice pertaining to its bids or bidding strategies does not become a conduit for prohibited communications to other specified parties, as that would violate the rule. For example, an applicant might require a third party, such as a lender, to sign a non-disclosure agreement before the applicant communicates any information regarding bids or bidding strategy to the third party. Within third-party firms, separate individual employees, such as attorneys or auction consultants, may advise individual applicants on bids or bidding strategies, as long as such firms implement firewalls and other compliance procedures that prevent such individuals from communicating the bids or bidding strategies of one applicant to other individuals representing separate applicants. Although firewalls and/or other procedures should be used, their existence is not an absolute defense to liability if a violation of the rule has occurred.

34. In the case of an individual, the objective precautionary measure of a firewall is not available. As a result, an individual that is privy to bids or bidding information of more than one applicant presents a greater risk of becoming a conduit for a prohibited communication. Whether a prohibited communication has taken place in a given case will depend on all the facts pertaining to the case, including who possessed what information, what information was conveyed to whom, and the course of bidding in the auction.

35. Applicants may discuss the short-form application or bids for specific permits with their counsel, consultant, or expert of their choice before the short-form application deadline. Furthermore, the same third-party individual could continue to give advice after the short-form deadline regarding the application, provided that no information pertaining to bids or bidding strategies is conveyed to that individual. To the extent potential applicants can develop bidding instructions prior to the short-form application deadline that a third party could implement without changes during bidding, the third party could follow such instructions for multiple applicants provided that those applicants do not communicate with the third party during the prohibition period.

36. Applicants also should use caution in their dealings with other parties, such as members of the press, financial analysts, or others who might become conduits for the communication of prohibited bidding information. For example, even though communicating that it has applied to participate in this auction will not violate the rule, an applicant's statement to the press that it intends to stop bidding in an auction could give rise to a finding of a 47 CFR 1.2105 violation. Similarly, an FCC Form 175 applicant's public statement of intent not to place bids during bidding could also violate the rule.

37. Section 1.2105(c) Certification. By electronically submitting its FCC Form 175, each applicant in Auction 104 certifies its compliance with 47 CFR 1.2105(c) and 73.5002(d) of the rules. However, the mere filing of a certifying statement as part of an application will not outweigh specific evidence that a prohibited communication has occurred, nor will it preclude the initiation of an investigation when warranted. Any applicant found to have violated these communication prohibitions may be subject to sanctions.

38. Reporting Requirements. Section 1.2105(c)(4) requires that any applicant that makes or receives a communication that appears to violate 47 CFR 1.2105(c) must report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. Each applicant's obligation to report any such communication continues beyond the five-day period after the communication is made, even if the report is not made within the five-day period.

Procedures for Reporting Prohibited Communications. Section 1.2105(c) requires parties to file only a single report concerning a prohibited communication and to file that report with Commission personnel expressly charged with administering the Commission's auctions. Any reports required by 47 CFR 1.2105(c) must be filed consistent with the instructions set forth in the Auction 104 Procedures Public Notice. For Auction 104, such reports must be filed with the Chief of the Auctions Division, OEA, by the most expeditious means available. Any such report should be submitted by email to Margaret W. Wiener at the following email address: auction104@fcc.gov. If you choose instead to submit a report in hard copy, any such report must be delivered only to: Margaret W. Wiener, Chief, Auctions Division, OEA, FCC, 445 12th Street SW, Washington, DC 20554.

40. A party reporting any communication pursuant to 47 CFR 1.65 or 1.2105(a)(2) or (c)(4) must take care to ensure that any report of a prohibited communication does not itself give rise to a violation of 47 CFR 1.2105(c). For example, a party's report of a prohibited communication could violate the rule by communicating prohibited information to other applicants through the use of Commission filing procedures that would allow such materials to be made available for public inspection. A party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection by following the procedures specified in 47 CFR 0.459. Such parties also are encouraged to coordinate with the Auctions Division staff about the procedures for submitting such reports.

41. Compliance with Antitrust Laws. Regardless of compliance with the Commission's rules, applicants remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Applicants should note that conduct that is permissible under the Commission's rules may be prohibited by the antitrust laws. Compliance with the disclosure requirements of 47 CFR 1.2105(c) will not insulate a party from enforcement of the antitrust laws. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission may refer such allegations to the United States Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, it may be subject to forfeiture of its upfront payment, down payment, or full bid amount and may be prohibited from participating in future auctions, among other sanctions.

42. New Entrant Bidding Credit. Applicants that qualify for the New Entrant Bidding Credit, as specified in the applicable rule, are eligible for a bidding credit that represents the amount by which a bidder's winning bid is discounted. The interests of the applicant, and of any individuals or entities with an attributable interest in the applicant, in other media of mass communications are considered when determining an applicant's eligibility for the New Entrant Bidding Credit. A medium of mass communications is defined in 47 CFR 73.5008(b). Full-power noncommercial educational (NCE) stations, on both reserved and non-reserved channels, are included among media of mass communication.

43. In Auction 104, the bidder's attributable interests and, thus, its maximum new entrant bidding credit eligibility are determined as of the short-form application filing deadline. An applicant intending to divest a media interest or make any other ownership change, such as resignation of positional interests (officer or director), in order to avoid attribution for purposes of qualifying for the New Entrant Bidding Credit must have consummated such divestment transactions or have completed such ownership changes by no later than the FCC Form 175 filing deadline. If, for example, on July 22, 2019, an auction applicant has a pending or granted application to assign or transfer control of a media interest, the applicant will not avoid attribution with respect to that interest. To avoid attribution, an applicant must have consummated the transaction before the FCC Form 175 filing deadline. Thus, an applicant could not qualify for a bidding credit, nor upgrade a previously claimed bidding credit, based upon ownership or positional changes occurring after the short-form application filing deadline. See 47 CFR 73.5007(a). Each prospective bidder is reminded, however, that events occurring after the short-form filing deadline, such as the acquisition of attributable interests in media of mass communications, may cause diminishment or loss of the bidding credit, and must be reported immediately. Each applicant has a duty to continuously maintain the accuracy of information submitted in its auction application.

44. The attributable mass media interests held by an individual or entity with an equity and/or debt interest in an applicant shall be attributed to that bidder for purposes of determining its eligibility for the New Entrant Bidding Credit, if the equity and debt interests, in the aggregate, exceed 33% of the total asset value of the applicant, even if such an interest is non-voting. The Commission will allow the holder of an equity or debt interest in the applicant to exceed the above-noted 33% threshold without triggering attribution provided (1) the combined equity and debt in the eligible entity is less than 50%; or (2) the total debt in the eligible entity does not exceed 80% of the asset value, and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the eligible entity or any related entity. An eligible entity is defined in Note 2(i) of 47 CFR 73.3555.

45. Application Requirements. In addition to the ownership information required pursuant to 47 CFR 1.2105 and 1.2112, applicants seeking a New Entrant Bidding Credit are required to establish on their short-form applications that they satisfy the eligibility requirements to qualify for the bidding credit. In those cases, a certification under penalty of perjury must be provided in completing the short-form application. An applicant claiming that it qualifies for a 35% New Entrant Bidding Credit must certify that neither it nor any of its attributable interest holders have any attributable interests in any other media of mass communications. An applicant claiming that it qualifies for a 25% New Entrant Bidding Credit must certify that neither it nor any of its attributable interest holders has any attributable interests in more than three media of mass communications, and must identify and describe such media of mass communications.

46. Bidding Credit Size. The size of a New Entrant Bidding Credit depends on the number of ownership interests in other media of mass communications that are attributable to the bidder-entity and its attributable interest-holders. A 35% bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has no attributable interest in any other media of mass communications, as defined in 47 CFR 73.5008. A 25% bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has an attributable interest in no more than three mass media facilities, as defined in 47 CFR 73.5008. No bidding credit will be given if any of the commonly owned mass media facilities serve the same area as the construction permit proposed in this auction, as defined in 47 CFR 73.5007(b), or if the winning bidder, and/or any individual or entity with an attributable interest in the winning bidder, has attributable interests in more than three mass media facilities. Any existing media of mass communications will be considered in the same area as a facility proposed in this auction if the relevant defined service areas of the existing mass media facilities partially overlap, or are partially overlapped by, the proposed facility's relevant contour. See 47 CFR 73.5007(b). For purposes of determining whether a construction permit offered in this auction is in the same area as an applicant's existing mass media facilities, the coverage area of the to-be-auctioned facility is calculated using maximum class facilities at the applicant-specified site coordinates, and with the relevant contour defined in 47 CFR 73.5007(b).

47. Bidding credits are not cumulative; qualifying applicants receive either the 25% or the 35% bidding credit, but not both. Attributable interests are defined in 47 CFR 73.3555 and note 2 of that section. Applicants should note that unjust enrichment provisions apply to a winning bidder that utilizes a bidding credit and subsequently seeks to assign or transfer control of its license or construction permit to an entity not qualifying for the same level of bidding credit.

48. Provisions Regarding Former and Current Defaulters. Pursuant to the rules governing competitive bidding, each applicant must make certifications regarding whether it is a current or former defaulter or delinquent. A current defaulter or delinquent is not eligible to participate in Auction 104. An applicant is considered a current defaulter or a current delinquent when it, any of its affiliates, any of its controlling interests, or any of the affiliates of its controlling interests, is in default on any payment for any Commission construction permit or license (including a down payment) or is delinquent on any non-tax debt owed to any Federal agency as of the filing deadline for auction applications. Accordingly, each applicant must certify under penalty of perjury on its FCC Form 175 that the applicant, any of its affiliates, any of its controlling interests, and any of the affiliates of its controlling interests, are not in default on any payment for a Commission construction permit or license (including down payments) and that are not delinquent on any non-tax debt owed to any Federal agency. For purposes of this certification, the term affiliate is defined in 47 CFR 1.2110 and the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i).

49. Under the Commission's revised rule regarding applications filed by former defaulters, an applicant is considered a former defaulter or a former delinquent when, as of the FCC Form 175 filing deadline, it or any of its controlling interests has defaulted on any Commission construction permit or license or has been delinquent on any non-tax debt owed to any Federal agency, but has since remedied all such defaults and cured all of the outstanding non-tax delinquencies. A former defaulter or delinquent who has remedied all such defaults and cured all of the outstanding non-tax delinquencies prior to the FCC Form 175 filing deadline in this auction may participate so long as it is otherwise qualified, if the applicant makes an upfront payment that is 50% more than would otherwise be required. For this reason, an applicant must certify under penalty of perjury whether it (along with any of its controlling interests) has ever been in default on any payment for a Commission construction permit or license (including a down payment) or has ever been delinquent on any non-tax debt owed to any Federal agency, subject to the exclusions described in 47 CFR 1.2105(a)(2)(xii). For purposes of evaluating the certifications under 47 CFR 1.2105(a)(2)(xi) and (xii), non-tax debt owed to any Federal agency includes, within the meaning of the rule, all amounts owed under Federal programs, including contributions to the Universal Service Fund (USF), Telecommunications Relay Services Fund, and the North American Numbering Plan Administration. For purposes of making this certification, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i).

50. For purposes of the certification under 47 CFR 1.2105(a)(2)(xii), the applicant may exclude from consideration any cured default on a Commission construction permit or license as well as any cured delinquency on a non-tax debt owed to a Federal agency for which any of the following criteria are met: (1) The notice of the final payment deadline or delinquency was received more than seven years before the FCC Form 175 filing deadline; (2) the default or delinquency amounted to less than $100,000; (3) the default or delinquency was paid within six months after receiving the notice of the final payment deadline or delinquency; or (4) the default or delinquency was the subject of a legal or arbitration proceeding and was cured upon resolution of the proceeding.

51. Applicants should review previous guidance provided on default and delinquency disclosure requirements in the context of the auction short-form application process. Applicants also are advised to consult with Auctions Division staff if they have questions about delinquency or default disclosure requirements.

52. Optional Applicant Status Identification. An applicant owned by members of minority groups and/or women, as defined in 47 CFR 1.2110(c)(3), or rural telephone companies, as defined in 47 CFR 1.2110(c)(4), may identify itself regarding this status in filling out its FCC Form 175. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of various groups in its auctions.

53. Minor Modifications to Short-Form Applications. After the initial application filing deadline, an applicant will be permitted to make only minor modifications to its short-form application. Examples of minor changes include the deletion or addition of authorized bidders (to a maximum of three), revision of addresses and telephone numbers of the applicant, its responsible party, and its contact person, or change in the applicant's selected bidding option (electronic or telephonic). A major modification to an FCC Form 175 application ( e.g., change the engineering proposal(s), change the certifying official, change control of the applicant ( e.g., any change in ownership or control that would constitute an assignment or transfer of control of the applicant), or claim eligibility for a higher percentage of bidding credit) will not be permitted after the initial FCC Form 175 filing deadline.

54. Any change in control of the applicant will be considered a major amendment. If an applicant makes a major amendment, as defined by 47 CFR 1.2105(b)(2), the major amendment may result in the disqualification of the applicant from participating in the bidding. Even if an applicant's FCC Form 175 is dismissed, the applicant would remain subject to the prohibitions on certain communications of 47 CFR 1.2105(c) until the down payment deadline for this auction. Questions about FCC Form 175 amendments should be directed to the Auctions Division at (202) 418-0660.

55. Maintaining Current Information in Short-Form Applications. Each applicant has a continuing obligation to maintain the accuracy and completeness of information furnished in its pending application in a competitive bidding proceeding. An auction applicant must furnish additional or corrected information to the Commission within five business days after a significant occurrence, or amend its FCC Form 175 no more than five business days after the applicant becomes aware of the need for the amendment. Changes that cause a loss of or reduction in the percentage of bidding credit specified on the originally-submitted application must be reported immediately, and no later than five business days after the change occurs.

56. An applicant's obligation to make modifications to a pending auction application in order to provide additional or corrected information continues in accordance with the Commission's rules. An applicant is obligated to amend its pending application even if a reported change is considered to be a major modification that may result in the dismissal of its application.

57. Due Diligence. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the construction permit(s) it is seeking in this auction. The FCC makes no representations or warranties about the use of this spectrum or these construction permits for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC permittee in a broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

58. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. Each potential bidder to perform technical analyses and/or refresh its previous analyses to assure itself that, should it become a winning bidder for any Auction 104 construction permit, it will be able to build and operate facilities that will fully comply with all applicable technical and legal requirements. Each applicant should inspect any prospective transmitter sites located in, or near, the service area for which it plans to bid, confirm the availability of such sites, and to familiarize itself with the Commission's rules regarding the National Environmental Policy Act, 47 CFR part 1, subpart I.

59. Each applicant should continue to conduct its own research throughout Auction 104 in order to determine the existence of pending or future administrative or judicial proceedings that might affect its decision on continued participation in the auction. Each Auction 104 applicant is responsible for assessing the likelihood of the various possible outcomes and for considering the potential impact on construction permits available in this auction. The due diligence considerations mentioned in the Auction 104 Procedures Public Notice do not comprise an exhaustive list of steps that should be undertaken prior to participating in this auction. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon specific facts and circumstances related to its interests.

60. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of the construction permits available in Auction 104. Each potential bidder is responsible for undertaking research to ensure that any permits won in this auction will be suitable for its business plans and needs. Each potential bidder must undertake its own assessment of the relevance and importance of information gathered as part of its due diligence efforts.

61. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. To the extent the Commission's databases may not include all information deemed necessary or desirable by an applicant, it must obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases.

62. Online Tutorial on Auction Process. An educational auction tutorial was available starting on July 8, 2019, on the Education tab of the Auction 104 website. This tutorial will remain available and accessible anytime for reference.

63. Application Processing and Corrections of Deficiencies. After the deadline for filing auction applications, Commission staff will process all timely submitted applications to determine whether each applicant has complied with the application requirements and provided all information concerning its qualifications for bidding. Subsequently, a public notice will be issued to identify applications that are complete and those that are incomplete or deficient because of minor defects that may be corrected. The public notice will include the deadline for resubmitting corrected applications. A paper copy of this public notice identifying initial application status will be sent to the contact address listed in the FCC Form 175 for each applicant by overnight delivery. In addition, each applicant with an incomplete application will be sent information on the nature of the deficiencies in its application, along with the name and phone number of a Commission staff member who can answer questions specific to the application.

64. Commission staff will communicate only with an applicant's contact person or certifying official, as designated on the short-form application, unless the applicant's certifying official or contact person notifies the Commission in writing that applicant's counsel or other representative is authorized to speak on its behalf. Authorizations may be sent by email to auction104@fcc.gov. In no event, however, will the FCC send auction registration materials to anyone other than the contact person listed on the applicant's FCC Form 175 or respond to a request for replacement registration materials from anyone other than the authorized bidder, contact person, or certifying official listed on the applicant's FCC Form 175.

65. After Commission staff review resubmitted applications for Auction 104, Commission staff will release a public notice identifying applicants that have become qualified bidders before bidding in the auction begins. Qualified bidders are those applicants with submitted FCC Forms 175 that are deemed timely filed and found to comply with the Commission's competitive bidding rules and other requirements set forth in the Auction 104 Procedures Public Notice, and comply with applicable Commission rules, and which have made a timely and sufficient upfront payment (as described below).

66. Upfront Payments. In order to be eligible to bid in this auction, a sufficient upfront payment and a complete and accurate FCC Remittance Advice Form (FCC Form 159, February 2003 edition) must be submitted by 6 p.m. ET on August 14, 2019, following the procedures and instructions outlined below and the instructions in Attachment C to the Auction 104 Procedures Public Notice.

67. Making Upfront Payments by Wire Transfer. All upfront payments must be made by wire transfer. An applicant must initiate the wire transfer through its bank, authorizing the bank to wire funds from the applicant's account to the Commission's account at the U.S. Treasury. No other payment method is acceptable. The Commission will not accept checks, credit cards, or automated clearing house (ACH) payments. All payments must be made in U.S. dollars. Upfront payments for Auction 104 go to a U.S. Treasury account number different from the accounts used in previous FCC auctions. This wire transfer must include the information specified and comply with the instructions provided in the Auction 104 Procedures Public Notice. The beneficiary account number is specific to the upfront payments for Auction 104. Do not use a beneficiary account number from a previous auction.

68. Each applicant is responsible for ensuring timely submission of its upfront payment and for timely filing of an accurate and complete Form 159. To avoid untimely payments, an applicant should discuss arrangements and deadlines with its financial institution (including that financial institution's specific wire transfer requirements) several days before they plan to make the wire transfer, and well ahead of the due date, as well as allowing sufficient time for the wire transfer to be initiated and completed prior to the deadline. The Commission repeatedly has cautioned auction participants about the importance of planning ahead to prepare for unforeseen last-minute difficulties in making payments by wire transfer. Each applicant is responsible for obtaining confirmation from its financial institution that its wire transfer to U.S. Treasury was successful and from Commission staff that its upfront payment was timely received and that it was deposited into the proper account. Contact information for relevant staff is supplied in this public notice.

69. Failure to deliver a sufficient upfront payment as instructed herein by the August 14, 2019, deadline will result in dismissal of the short-form application and disqualification from participation in the auction.

70. Completing and Submitting FCC Form 159. An accurate and complete Form 159 (February 2003 edition) must be sent to the FCC to accompany each upfront payment. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must fax a completed Form 159 to the FCC at (202) 418-2843. On the fax cover sheet, write Wire Transfer—Auction Payment for Auction 104. Alternatively, the completed form can be scanned and sent as an attachment to an email to RROGWireFaxes@fcc.gov.

71. In order to meet the upfront payment deadline, an applicant's payment must be credited to the Commission's account for Auction 104 at the U.S. Treasury before the deadline. Proper completion of this form is critical to ensuring correct crediting of upfront payments. Detailed instructions for completion of FCC Form 159 are included in Attachment C of the Auction 104 Procedures Public Notice. An electronic pre-filled version of the FCC Form 159 is available after submitting the FCC Form 175. Payers using the pre-filled FCC Form 159 are responsible for ensuring that all of the information on the form, including payment amounts, is accurate.

72. Upfront Payments and Bidding Eligibility. The specific upfront payment amounts and bidding units for each construction permit are set forth in Attachment A of the Auction 104 Procedures Public Notice. Applicants must make upfront payments sufficient to obtain bidding eligibility on the construction permit(s) on which they will bid. The amount of the upfront payment determines a bidder's initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids in any single round. In order to bid on a particular construction permit, otherwise qualified bidders that are designated in Attachment A of the Auction 104 Procedures Public Notice for that construction permit must have a current eligibility level that meets or exceeds the number of bidding units assigned to that construction permit. At a minimum, therefore, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 104 Procedures Public Notice, or else the applicant will not be eligible to participate in the auction. The total upfront payment does not affect the total dollar amount the bidder may bid on any given construction permit.

73. An applicant does not have to make an upfront payment to cover all construction permits designated for that applicant in Attachment A of the Auction 104 Procedures Public Notice, but only enough to cover the maximum number of bidding units that are associated with construction permits on which they wish to place bids and hold provisionally winning bids in any given round. Provisionally winning bids are bids that would become final winning bids if the auction were to close after the given round.

74. In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to bid or hold provisionally winning bids in any single round, and submit an upfront payment amount covering that number of bidding units. A qualified bidder's maximum eligibility will not exceed the sum of the bidding units associated with the total number of construction permits identified for that applicant in Attachment A of the Auction 104 Procedures Public Notice. In order to make this calculation, an applicant should add together the bidding units for all construction permits on which it seeks to be active in any given round. Applicants should check their calculations carefully, as there is no provision for increasing a bidder's eligibility after the upfront payment deadline.

75. Applicants that are former defaulters, as described above, must pay upfront payments 50% greater than non-former defaulters. For purposes of this classification as a former defaulter or a former delinquent, defaults and delinquencies of the applicant itself and its controlling interests are included. For this purpose, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i). If an applicant is a former defaulter, it must calculate its upfront payment for all of its identified construction permits by multiplying the number of bidding units on which it wishes to be active by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit.

76. If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 104 Procedures Public Notice, the applicant will not be eligible to participate in the auction. This applicant will retain its status as an applicant in Auction 104 and will remain subject to 47 CFR 1.2105(c) and 73.5002(d).

77. Auction Registration. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight mail. For security reasons, the mailing will be sent only to the contact person at the contact address listed in the FCC Form 175 and will include the SecurID® tokens that will be required to place bids, the web address and instructions for accessing and logging in to the auction bidding system, an FCC assigned username (User ID) for each authorized bidder, and the Auction Bidder Line phone number.

78. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, if this mailing is not received by noon on September 4, 2019, a qualified bidder must call the Auctions Hotline. Receipt of this registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all of the registration material.

79. In the event that SecurID® tokens are lost or damaged, only a person who has been designated as an authorized bidder, the contact person, or the certifying official on the applicant's short-form application may request replacements. To request replacement of these items, call the Auction Bidder Line at the telephone number provided in the registration materials or the Auctions Hotline.

80. Each authorized bidder must have its own SecurID® token, which the Commission will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID® tokens, while applicants with two or three authorized bidders will be issued three tokens. Each SecurID® token is tailored to a specific auction. SecurID® tokens issued for other auctions or obtained from a source other than the FCC will not work for Auction 104.

81. Remote Electronic Bidding via the FCC Auction Bidding System. Only qualified bidders are permitted to bid. All bidding will take place remotely. There will be no on-site bidding during Auction 104. Qualified bidders will be able to place bids in Auction 104 over the internet using the FCC auction bidding system. Telephonic bidding will be available as well. All telephone calls are recorded. Telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are therefore reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. The length of a call to place a telephonic bid may vary; please allow a minimum of ten minutes.

82. The Commission makes no warranties whatsoever with respect to the FCC auction application system and the auction bidding system. In no event shall the Commission, or any of its officers, employees, or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning, or use of the FCC auction systems that are accessible to qualified bidders in connection with this auction. Moreover, no obligation or liability will arise out of the Commission's technical, programming, or other advice or service provided in connection with the FCC auction systems.

83. To the extent an issue arises with the Auction System itself, the Commission will take all appropriate measures to resolve such issues quickly and equitably. The Commission periodically performs scheduled maintenance of its IT systems. During scheduled maintenance activities, which typically occur over the weekends, every effort is made to minimize any downtime to auction-related systems, including the Commission's bidding system. However, there are occasions when auction-related systems may be temporarily unavailable. Should an issue arise that is outside the Auction System or attributable to a bidder, including, but not limited to, a bidder's hardware, software, or internet access problem that prevents the bidder from submitting a bid prior to the end of a round, the Commission shall have no obligation to resolve or remediate such an issue on behalf of the bidder. Similarly, if an issue arises due to bidder error using the Auction System, the Commission shall have no obligation to resolve or remediate such an issue on behalf of the bidder. Accordingly, after the close of a bidding round, the results of bid processing will not be altered absent evidence of any failure in the Auction System.

84. Mock Auction. All qualified bidders will be eligible to participate in a mock auction on September 6, 2019. The mock auction will enable qualified bidders to become familiar with the FCC auction bidding system prior to the auction. We strongly recommend that all authorized bidders participate in the mock auction. Details will be announced by public notice.

85. Simultaneous Multiple Round Auction. The Commission's standard simultaneous multiple-round auction format will be used for Auction 104. This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which qualified bidders may place bids on individual construction permits. Unless otherwise announced, bids will be accepted on all construction permits in each round of the auction until bidding stops on every construction permit. Moreover, unless otherwise announced, bidding on all construction permits will be conducted on each business day until bidding has stopped on all construction permits.

86. Auction Bidding System. An Auction 104 bidder's ability to bid on specific construction permits is determined by two factors: (1) The construction permits designated for that applicant in Attachment A of the Auction 104 Procedures Public Notice and (2) the bidder's bidding eligibility measured in bidding units. The FCC auction bidding system will allow bidders to submit bids on only those construction permits designated for that applicant in Attachment A of the Auction 104 Procedures Public Notice.

87. In order to access the bidding function of the FCC auction bidding system, bidders must be logged in during a bidding round using the passcode generated by the SecurID® token and a personal identification number (PIN) created by the bidder. Bidders are strongly encouraged to print a round summary for each round after they have completed all of their activity for that round.

88. Round Structure. The initial schedule of bidding rounds will be announced in the public notice listing the qualified bidders, which will be released at least one week before the start of bidding in the auction. Each bidding round is followed by the release of round results. Multiple bidding rounds may be conducted each day.

89. IATF, MB and OEA retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, may be changed depending upon bidding activity and other factors, by prior announcement.

90. Eligibility and Activity Rules. For Auction 104, the amount of the upfront payment submitted by a bidder determines initial bidding eligibility, the maximum number of bidding units on which a bidder may be active. Each construction permit is assigned a specific number of bidding units as listed in Attachment A of the Auction 104 Procedures Public Notice. Bidding units assigned to each construction permit do not change as prices rise during the auction. Upfront payments are not attributed to specific construction permits. Rather, a bidder may place bids on any of the construction permits for which it is designated an applicant in Attachment A of the Auction 104 Procedures Public Notice as long as the total number of bidding units associated with those construction permits does not exceed its current eligibility. Eligibility cannot be increased during the auction; it can only remain the same or decrease. The total upfront payment does not affect the total dollar amount a bidder may bid on any given construction permit.

91. To ensure that an auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction. Note that the bidding units associated with construction permits for which the bidder has removed bids in that round do not count towards current activity.

92. A bidder's activity level in a round is the sum of the bidding units associated with construction permits covered by the bidder's new bids in the current round and provisionally winning bids from the previous round. A provisionally winning bid is a bid that would become a final winning bid if the auction were to close after the given round.

93. In Auction 104, a bidder is required to be active on 100% of its current eligibility during each round of the auction. That is, a bidder must either place a bid or be a provisionally winning bidder during each round of the auction. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.

94. Activity Rule Waivers. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility in the event that exigent circumstances prevent it from bidding in a particular round. Use of an activity rule waiver preserves the bidder's eligibility despite its activity in the current round being below the required minimum activity level. In Auction 104, each bidder is provided with three activity rule waivers. Bidders may use an activity rule waiver in any round during the course of the auction. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic.

95. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

96. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the Auction 104 activity rule. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

97. Also, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bid is placed, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there is no new bid or a proactive waiver will not keep the auction open.

98. Auction Stopping Rule. For Auction 104, a simultaneous stopping rule approach will be employed, which means all construction permits remain available for bidding until bidding stops on every construction permit. Specifically, bidding will close on all construction permits after the first round in which no bidder submits any new bid or applies a proactive waiver.

99. Alternative versions of the simultaneous stopping procedure also may be employed for Auction 104. (1) The auction would close for all construction permits after the first round in which no bidder applies a waiver or places any new bid on a construction permit for which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule. (2) The auction would close for all construction permits after the first round in which no bidder applies a proactive waiver or places any new bid on a construction permit that already has a provisionally winning bid. Thus, absent any other bidding activity, a bidder placing a new bid on an FCC-held construction permit (a construction permit that does not have a provisionally winning bid) would not keep the auction open under this modified stopping rule. (3) The auction would close using a modified version of the simultaneous stopping rule that combines options (1) and (2). (4) The auction would close after announcement of a specified number of additional rounds (special stopping rule). If this special stopping rule is invoked, bids in the specified final round(s) will be accepted, after which the auction will close. (5) The auction would remain open even if no bidder places any new bids or applies a waiver. In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.

100. These options will be exercised only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, it is likely that there will be an attempt to change the pace of the auction, such as, changing the number of bidding rounds per day and/or the minimum acceptable bids. IATF, MB and OEA retain the discretion to exercise any of these options with or without prior announcement during the auction.

101. Auction Delay, Suspension or Cancellation. By public notice and/or by announcement through the FCC auction bidding system, IATF, MB and OEA may delay, suspend, or cancel bidding in the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, IATF, MB and OEA, in their sole discretion, may elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. Network interruption may cause us to delay or suspend the auction. This authority will be exercised solely at the discretion of IATF, MB and OEA, and not as a substitute for situations in which bidders may wish to apply their activity rule waivers.

102. Bid Amounts. If the qualified bidder has sufficient eligibility to place a bid on a particular construction permit, eligible bidders will be able to place bids on a given construction permit in each round in any of up to nine pre-defined bid amounts. For each construction permit, the FCC auction bidding system interface will list the 9 acceptable bid amounts in a drop-down box. Bidders use the drop-down box to select from among the acceptable bid amounts. The FCC auction bidding system also includes an upload function that allows bidders to upload text files containing bid information.

103. Until a bid has been placed on a construction permit, the minimum acceptable bid amount for that permit will be equal to its minimum opening bid amount. Once there are bids on a permit, minimum acceptable bids for the following round will be determined as described below.

104. During a round, an eligible bidder may submit bids for construction permits (providing that it is eligible to bid on the specific permits), remove bids placed in the current bidding round, or permanently reduce eligibility. If multiple bids are submitted for the same construction permit in the same round, the system takes the last bid entered as that bidder's bid for the round.

105. Reserve Price and Minimum Opening Bids. Normally a reserve price is an absolute minimum price below which a construction permit or license will not be sold in a specific auction. Auction 104 will be conducted without reserve prices for specific construction permits. In contrast to a reserve price, a minimum opening bid is the minimum bid price set at the beginning of the auction below which no bids are accepted. The specific minimum opening bid amounts for each of the construction permits in Auction 104 are specified in Attachment A to the Auction 104 Procedures Public Notice.

106. Minimum Acceptable Bids. For calculation of the 9 acceptable bid amounts for each construction permit, Auction 104 will begin with a minimum acceptable bid increment percentage of 10% and an additional bid increment percentage of 5%. In Auction 104, the minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be calculated by multiplying the provisionally winning bid amount by one plus the minimum acceptable bid percentage— e.g., provisionally winning bid amount * 1.10, rounded using the Commission's standard rounding procedures for auctions as described in the Auction 104 Procedures Public Notice.

107. Additional Bid Amounts. In Auction 104, the FCC auction bidding system will calculate the 8 additional bid amounts by multiplying the minimum acceptable bid amount by the additional bid increment percentage of 5%, and that result (rounded) is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount; etc. With an additional bid increment percentage of 5%, the calculation of the additional increment amount is (minimum acceptable bid amount) * (0.05), rounded using the Commission's standard rounding procedures for auctions as described in the Auction 104 Procedures Public Notice. The first additional acceptable bid amount equals (minimum acceptable bid amount) + (additional increment amount); the second additional acceptable bid amount equals (minimum acceptable bid amount) + (2 * (additional increment amount)); the third additional acceptable bid amount equals (minimum acceptable bid amount) + (3 * (additional increment amount)); etc.

108. Bid Amount Changes. IATF, MB and OEA retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid percentage, the additional bid increment percentage, and the number of acceptable bid amounts if circumstances so dictate. Further, IATF, MB and OEA retain the discretion to do so on a construction permit-by-construction permit basis. IATF, MB and OEA also retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, a $1,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids could be set. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid percentage results in a minimum acceptable bid amount that is $1,200 higher than the provisionally winning bid on a construction permit, then the minimum acceptable bid amount would instead be capped at $1,000 above the provisionally winning bid. If any such discretion is exercised, bidders will be alerted by announcement in the FCC auction bidding system during the auction.

109. Provisionally Winning Bids. In Auction 104, the FCC auction bidding system at the end of each bidding round will determine a provisionally winning bid for each construction permit based on the highest bid amount received for that permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids at the end of the auction become the winning bids.

110. The FCC auction bidding system will assign a pseudo-random number to each bid upon submission. In the event of identical high bid amounts being submitted on a construction permit in a given round ( i.e., tied bids), the tied bid with the highest random number wins the tiebreaker, and becomes the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to close with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the construction permit receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.

111. A provisionally winning bid will be retained until there is a higher bid on the construction permit at the close of a subsequent round. As a reminder, provisionally winning bids count toward activity for purposes of the activity rule.

112. Bid Removal and Bid Withdrawal. Each qualified bidder has the option of removing any bids placed in a round provided that such bids are removed before the close of that bidding round. By removing a bid within a round, a bidder effectively unsubmits the bid. A bidder removing a bid placed in the same round is not subject to withdrawal payments. Removing a bid will affect a bidder's activity because a removed bid no longer counts toward bidding activity for the round. Once a round closes, a bidder may no longer remove a bid.

113. In Auction 104, bidders are prohibited from withdrawing any bid after close of the round in which that bid was placed. Bidders are cautioned to select bid amounts carefully because no bid withdrawals will be allowed, even if a bid was mistakenly or erroneously made.

114. Auction Announcements. The Commission will use auction announcements to report necessary information such as schedule changes. All auction announcements will be available by clicking a link in the FCC auction bidding system.

115. Shortly after bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying the winning bidders, and establishing the deadlines for submitting down payments, final payments, and minor amendments to each winning bidder's pending displacement application filed initially in the 2018 Special Displacement Window.

116. Down Payments. As required by 47 CFR 1.2107(b), within ten business days after release of the auction closing public notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission for Auction 104 to 20% of the net amount of its winning bids (gross bid(s) less any applicable new entrant bidding credit(s)).

117. Final Payments. As required by 47 CFR 1.2109(a), each winning bidder must submit the balance of the net amount for each of its winning bids within ten business days after the applicable deadline for submitting down payments.

118. Long-Form Applications. Each party eligible to apply for Auction 104 has already filed a displacement application, Schedule C (Schedule for a Construction Permit for a LPTV or TV Translator Broadcast Station) of FCC Form 2100 (Application for Media Bureau Video Service Authorization) during the 2018 Special Displacement Window. A winning bidder will not be required to submit a separate long-form application following close of bidding in Auction 104. A winning bidder, however, will be required to submit minor amendments to their previously filed displacement application by a deadline to be determined after the close of the auction. Amendments must be filed electronically in the Media Bureau's Licensing and Management System (LMS). As required by 47 CFR 73.5006, winning bidders' applications, as amended, will be placed on public notice, triggering the appropriate period for the filing of petitions to deny pursuant to 47 CFR 73.5006. Further instructions will be provided to winning bidders in the auction closing public notice.

119. Default and Disqualification. Any winning bidder that defaults or is disqualified after the close of the auction ( i.e., fails to remit the required down payment by the specified deadline, fails to make a full and timely final payment, fails to timely amend its pending displacement application, or is otherwise disqualified) is liable for default payments as described in 47 CFR 1.2104(g)(2). This payment consists of a deficiency payment, equal to the difference between the amount of the Auction 104 bidder's winning bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less. The percentage of the applicable bid to be assessed as an additional payment for a default in Auction 104 is 20% of the applicable bid.

120. In the event of a default, the Commission has the discretion to re-auction the construction permit or offer it to the next highest bidder (in descending order) at its final bid amount. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing authorizations held by the applicant. See 47 CFR 1.2109(d).

121. Refund of Remaining Upfront Payment Balance. All refunds of upfront payment balances will be returned to the payer of record as identified on the FCC Form 159 unless the payer submits written authorization instructing otherwise. This written authorization must comply with the refund instructions in the Auction 104 Procedures Public Notice.

122. Paperwork Reduction Act. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified information burden for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

123. Congressional Review Act. The Commission will send a copy of the Auction 104 Procedures Public Notice in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A).

124. Supplemental Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 601-612, the Commission prepared Initial Regulatory Flexibility Analyses (IRFAs) in connection with the Broadcast Competitive Bidding Notice of Proposed Rulemaking (NPRM) and other Commission NPRMs (collectively Competitive Bidding NPRMs ) pursuant to which Auction 104 will be conducted. Final Regulatory Flexibility Analyses (FRFAs) likewise were prepared in the Broadcast Competitive Bidding Order and other Commission orders (collectively Competitive Bidding Orders) pursuant to which Auction 104 will be conducted. In this proceeding, a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Auction 104 Comment Public Notice, published at 84 FR 15167, April 15, 2019. The Commission sought written public comment on the proposals in the Auction 104 Comment Public Notice, including comments on the Supplemental IRFA. This Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the FRFAs in the Competitive Bidding Orders to reflect the actions taken in the Auction 104 Procedures Public Notice and conforms to the RFA.

125. Need for, and Objectives of, the Public Notice. The Auction 104 Procedures Public Notice implements competitive bidding rules adopted by the Commission in multiple notice-and-comment rulemaking proceedings. More specifically, the Auction 104 Procedures Public Notice provides an overview of the procedures, terms and conditions governing Auction 104 and the post-auction application and payment processes, as well as setting the minimum opening bid amount for the five construction permits for LPTV or TV translator stations available in Auction 104.

126. To promote the efficient and fair administration of the competitive bidding process for all Auction 104 participants, the Auction 104 Procedures Public Notice announces the following policies: (1) Use of a simultaneous multiple-round auction format, consisting of sequential bidding rounds with a simultaneous stopping rule (with discretion to exercise alternative stopping rules under certain circumstances); (2) A specific minimum opening bid amount for each construction permit available in Auction 104; (3) A specific number of bidding units for each construction permit; (4) A specific upfront payment amount for each construction permit; (5) Establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each construction permit; (6) Use of an activity requirement in which a bidder is required to be active on 100% of its bidding eligibility in each round of the auction; (7) Provision of three activity waivers for each qualified bidder to allow it to preserve bidding eligibility during the course of the auction; (8) Use of minimum acceptable bid amounts and additional acceptable increments, along with a proposed methodology for calculating such amounts, with IATF, MB and OEA retaining discretion to change the methodology if circumstances dictate; (9) A procedure for breaking ties if identical high bid amounts are submitted on one permit in a given round; (10) No bid withdrawals are allowed in Auction 104; and (11) Establishment of an additional default payment of 20% under 47 CFR 1.2104(g)(2) in the event that a winning bidder defaults or is disqualified after the auction.

127. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the procedures and policies proposed in the Supplemental IFRA.

128. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comment filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed procedures as a result of those comments, 5 U.S.C. 604(a)(3). The Chief Counsel did not file any comments in response to the procedures that were proposed in the Auction 104 Comment Public Notice.

129. Description and Estimate of the Number of Small Entities to Which the Procedures Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. 5 U.S.C. 604(a)(3). The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small governmental jurisdiction. 5 U.S.C. 601(6). In addition, the term small business has the same meaning as the term small business concern under the Small Business Act. 5 U.S.C. 601(3). A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA, 15 U.S.C. 632.

130. Auction 104 is a closed auction. The specific competitive bidding procedures and minimum opening bid amounts described in the Auction 104 Procedures Public Notice will affect only the 10 individuals or entities listed in Attachment A to the Auction 104 Procedures Public Notice who are the only parties eligible to complete the remaining steps to become qualified to bid in this auction. These 10 individuals or entities for Auction 104 include firms of all sizes.

131. Television Broadcasting. This Economic Census category comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25 million or less, 25 had annual receipts between $25 million and $49,999,999 and 70 had annual receipts of $50 million or more. Based on this data, we estimate that the majority of commercial television broadcast stations are small entities under the applicable size standard.

132. The Commission has estimated the number of licensed commercial television stations to be 1,373. Of this total, 1,270 stations (or about 92.5%) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey, Inc. Media Access Pro Television Database in November of 2018, therefore qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed NCE television stations to be 388. These stations are non-profit, and therefore are considered to be small entities. There are also 2,295 LPTV stations, including Class A stations, and 3,654 TV translators. Given the nature of these services, it is presumed that all of these entities qualify as small entities under the SBA small business size standard.

133. The SBA size standard data does not enable us to make a meaningful estimate of the number of small entities who may participate in Auction 104. There are a maximum of 10 individuals or entities that may become qualified bidders in Auction 104, in which applicant eligibility is closed. The specific procedures and minimum opening bid amounts announced in the Auction 104 Procedures Public Notice will affect directly all applicants participating in Auction 104.

134. In assessing whether a business entity qualifies as small under the SBA definition, business control affiliations must be included. Our estimate therefore likely overstates the number of small entities that might be affected by this auction because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. Moreover, the definition of small business also requires that an entity not be dominant in its field of operation and that the entity be independently owned and operated. The estimate of small businesses to which Auction 104 competitive bidding procedures may apply does not exclude any LPTV or TV translator station from the definition of a small business on these bases and is therefore over-inclusive to that extent. Furthermore, it is not possible at this time to define or quantify the criteria that would establish whether a specific LPTV station or TV translator applicant is dominant in its field of operation. In addition, it is difficult to assess these criteria in the context of media entities and therefore estimates of small businesses to which they apply may be over-inclusive to this extent.

135. It is not possible to accurately develop an estimate of how many of these 10 individuals or entities are small businesses based on the number of small entities that applied to participate in prior broadcast auctions, because that information is not collected from applicants for broadcast auctions in which bidding credits are not based on an applicant's size (as is the case in auctions of licenses for wireless services).

136. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The Commission has designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. In the first part of the Commission's two-phased application process for all spectrum auctions, parties desiring to participate in an auction file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment. More specifically as mentioned above, small entities and other Auction 104 applicants will be qualified to bid in the auction only if they comply with the following: (1) Submission of a short-form application that is timely and is found to be substantially complete, and (2) timely submission of a sufficient upfront payment for at least one of the construction permits for which it is designated as an applicant on Attachment A to the Auction 104 Procedures Public Notice. In accordance with the terms of 47 CFR 1.2105(b)(2), an applicant whose application is found to contain deficiencies will have a limited opportunity to bring their application into compliance with the Commission's competitive bidding rules during a resubmission window. All qualified bidders will automatically be registered for the auction and mailed the necessary registration materials.

137. In the second phase of the process, there are additional compliance requirements for winning bidders. As with other winning bidders, any small entity that is a winning bidder will be required to comply with the terms of: (1) 47 CFR 1.2107(b) by submitting within 10 business days of release of the auction closing public notice as a down payment sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission for Auction 104 to 20% of the net amount of its winning bid or bids; and (2) 47 CFR 1.2109(a) by submitting within 10 business days after the down payment deadline the balance of the net amount for each of its winning bids. Further, as required by 47 CFR 1.2105(c), reports concerning a prohibited communication must be filed with the Chief of the Auctions Division as detailed in 47 CFR 1.2105(c)(4).

138. The processes and procedures adopted in the Auction 104 Procedures Public Notice should minimize the need for small entities to hire attorneys, engineers, consultants, or other professionals. While we are unable to quantify the cost of compliance with the requirements, we do not believe that such costs of compliance will unduly burden small entities. The processes and procedures are consistent with existing Commission policies and requirements used in prior auctions for broadcast construction permits. Thus, some small entities may already be familiar with such policies and requirements and have the processes and procedures in place to facilitate compliance resulting in minimal incremental costs to comply. For those small entities that may be new to the Commission's auction process, the various resources that have been made available, including but not limited to, the availability of a mock auction, remote electronic or telephonic bidding, and access to hotlines for both technical and auction assistance, should help facilitate participation while minimizing the need to rely on assistance from outside professionals and consultants.

139. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities. See 5 U.S.C. 603(c)(1)-(4).

140. We believe that the steps described below to facilitate participation in Auction 104 will result in both operational and administrative cost savings for small entities and other auction participants. In light of the numerous resources that will be available from the Commission at no cost, the processes and procedures adopted for Auction 104 should result in minimal economic impact on small entities. For example, prior to the auction, the Commission will hold a mock auction to allow eligible bidders the opportunity to familiarize themselves with both the processes and systems that will be utilized in Auction 104. During the auction, participants will be able to access and participate in the auction via the internet using a web-based system, or telephonically, providing two cost effective methods of participation avoiding the cost of travel for in-person participation. Further, small entities as well as other auction participants will be able to avail themselves of an auctions hotline for assistance with auction processes and procedures as well as a technical support hotline to assist with issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction system. In addition, small business entities as well as other auction participants, will have access to various other sources of information and databases through the Commission that will aid in both their understanding and participation in the process.

141. Another step implemented in the Auction 104 Procedures Public Notice that can minimize the economic impact for small entities is the inclusion of the New Entrant Bidding Credit adopted in the 1998 Broadcast Competitive Bidding Order to implement the statutory provisions of section 309(j) regarding opportunities for small, minority-and women-owned businesses. Applicants that qualify for the New Entrant Bidding Credit are eligible to discount the amount of a winning bidder's total bids. The size of a New Entrant Bidding Credit will depend on the number of ownership interests in other media of mass communications that are attributable to the bidder entity and its attributable interest holders. See 47 CFR 73.5007, 73.5008. An applicant can qualify for a 35% New Entrant Bidding Credit if it can certify that neither it nor any of its attributable interest holders have any attributable interests in any other media of mass communications or a 25% New Entrant Bidding Credit if it can certify that neither it nor any of its attributable interest holders has any attributable interests in more than three media of mass communications, and must identify and describe such media of mass communications. Because eligibility for a New Entrant Bidding Credit is not based on the size of the individual or entity requesting the bidding credit, some applicants for Auction 104 that claim eligibility for a New Entrant Bidding Credit may meet the definition of small entity or small business, as defined above.

142. The above mechanisms are made available to facilitate participation in Auction 104 by all qualified bidders and may result in significant cost savings for small business entities that use these mechanisms. These steps, coupled with the advance description of the bidding procedures in Auction 104, should ensure that the auction will be administered predictably, efficiently and fairly, thus providing certainty for small entities as well as other auction participants.

143. Notice to Chief Counsel for Advocacy of SBA. The Commission will send a copy of the Auction 104 Procedures Public Notice, including the Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. 5 U.S.C. 604(b).

This document announces that OMB approved the new or modified information collection requirements contained in 47 CFR 74.1203(a)(3) and 47 CFR 74.1204(f), as adopted in the FM Translator Interference Report and Order, FCC 19-40, published at 84 FR 27734 (date correction published at 84 FR 29806 (June 25, 2019)). OMB approved OMB Control Number 3060-1263 on July 16, 2019, and OMB Control Number 3060-0405 on July 17, 2019. The Commission publishes this notice as an announcement of the effective date of those information collection requirements.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on July 16, 2019, and on July 17, 2019, for the new or modified information collection requirements contained in 47 CFR 74.1203(a)(3) and 47 CFR 74.1204(f), as amended, in the FM Translator Interference Report and Order, MB Dkt. No. 18-119 FCC 19-40 (rel. May 9, 2019). Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers are 3060-1263 and 3060-0405. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

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

OMB Control Number: 3060-1263.

OMB Approval Date: July 16, 2019.

OMB Expiration Date : July 31, 2022.

Title: Sections 74.1203(a)(3), Interference, and 74.1204(f), Protection of FM broadcast, FM Translator and LP100 stations.

Respondents: Business or other for-profit entities; Not-for-profit institutions; State, Local or Tribal Government.

Number of Respondents and Responses: 270 respondents; 270 responses.

Estimated Time per Response: 3-5 hours.

Frequency of Response: Third party disclosure requirement and on occasion reporting requirement.

Total Annual Burden: 1,080 hours.

Total Annual Cost: $924,100.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: On May 9, 2019, the Commission adopted a Report and Order, Amendment of Part 74 of the Commission's Rules Regarding FM Translator Interference, FCC 19-40, MB Docket No. 18-119 (FM Translator Interference Report and Order), adopting proposals to streamline the rules relating to interference caused by FM translators and to expedite the translator interference complaint resolution process. These measures are designed to limit or avoid protracted and contentious interference disputes, provide translator licensees additional investment certainty and flexibility to remediate interference, and provide affected stations earlier and expedited resolution of interference complaints. Under this new information collection, the following information collection requirements require OMB approval.

Specifically, the FM Translator Interference Report and Order pertains to this new Information Collection as it codifies the translator interference listener complaint requirements under section 74.1201(k) and sections 74.1203(a)(3) (actual interference) and 74.1204(f) (predicted interference) of the rules. The Commission defines the requirements for a listener complaint submitted with a translator interference claim in section 74.1201(k) as a complaint that is signed and dated by the listener and contains the following information: (1) The complainant's full name, address, and phone number; (2) a clear, concise, and accurate description of the location where the interference is alleged to occur; (3) a statement that the complainant listens to the desired station using an over-the-air signal at least twice a month, to demonstrate the complainant is a regular listener; and (4) a statement that the complainant has no legal, employment, financial, or familial affiliation or relationship with the desired station, to demonstrate the complainant is disinterested. Electronic signatures are acceptable for this purpose.

The FM Translator Interference Report and Order establishes a minimum number of listener complaints ranging from 6 to 25 depending on the population served within the protected contour of the complaining station. The Commission explains that a proportionate approach, which was supported by multiple commenters, would be fairer and more effective than a single minimum number for all complaining stations. In addition to the required minimum number of valid listener statements, a station submitting a translator interference claim package pursuant to either section 74.1203(a)(3) or 74.1204(f) must include: (1) A map plotting the specific locations of the alleged interference in relation to the 45 dBu contour of the complaining station; (2) a statement that the complaining station is operating within its licensed parameters; (3) a statement that the complaining station licensee has used commercially reasonable efforts to inform the relevant translator licensee of the claimed interference and attempted private resolution; and (4) U/D data demonstrating that at each listener location the ratio of undesired to desired signal strength exceeds −20 dB for co-channel situations, −6 dB for first-adjacent channel situations or 40 dB for second- or third-adjacent channel situations, calculated using the Commission's standard contour prediction methodology set out in Section 73.313.

In the FM Translator Interference Report and Order, the Commission outlines two paths for resolving interference if the translator decides to continue operation on its original channel. First, a translator operator may resolve each listener complaint by working with a willing listener to resolve reception issues. The translator operator must then document and certify that the desired station can now be heard on the listener's receiver, i.e., that the adjustment to or replacement of the listener's receiving equipment actually resolved the interference. Second, the translator operator may work with the complaining station to resolve station signal interference issues using rule-compliant suitable technical techniques. (The Commission provides flexibility to the parties to determine the testing parameters for demonstrating that the interference has been resolved, for example, the use of on-off testing or field strength measurements.) Once agreement is reached, the translator operator submits the agreed-upon remediation showing to the Commission.

OMB Control Number: 3060-0405.

OMB Approval Date: July 17, 2019.

OMB Expiration Date: July 31, 2022.

Title: Form 2100, Schedule 349—FM Translator or FM Booster Station Construction Permit Application.

Form Number: FCC Form 2100, Schedule 349.

Respondents: Business or other for-profit entities; State, Local or Tribal Government; Not-for-profit institutions.

Number of Respondents and Responses: 1,350 respondents; 2,775 responses.

Estimated Time per Response: 1-1.5 hours.

Frequency of Response: On occasion reporting requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Sections 154(i), 303 and 308 of the Communications Act of 1934, as amended.

Total Annual Burden: 3,775 hours.

Total Annual Cost: $3,950,725.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this information collection.

Needs and Uses: On May 9, 2019, the Commission adopted a Report and Order, Amendment of Part 74 of the Commission's Rules Regarding FM Translator Interference, FCC 19-40, MB Docket No. 18-119, adopting proposals to streamline the rules relating to interference caused by FM translators and to expedite the translator interference complaint resolution process. These measures are designed to limit or avoid protracted and contentious interference disputes, provide translator licensees additional investment certainty and flexibility to remediate interference, and provide affected stations earlier and expedited resolution of interference complaints.

In the FM Translator Interference Report and Order, the Commission adopted its proposal to offer additional flexibility to FM translator licensees, by allowing them to resolve interference issues using the effective and low-cost method of submitting a minor modification application to change frequency to any available same-band FM channel. This method will reduce the number of opposition pleadings filed and the obligation to defend an interference claim.

Specifically, the FM Translator Interference Report and Order pertains to this Information Collection as it modifies Section 74.1233(a)(1) of the rules to define an FM translator station's change to any available same-band frequency using a minor modification application, filed using FCC Form 349, upon a showing of interference to or from any other broadcast station. Prior to the FM Translator Interference Report and Order, if an existing FM translator caused actual interference, as prohibited by Section 74.1203(a), it was limited to remedial channel changes, filing FCC Form 349 as a minor change application, to only first, second, or third adjacent, or IF channels. A change to any other channel was considered a major change on FCC Form 349, which could only be submitted during a filing window. The FM Translator Interference Report and Order enables more translator stations to cure interference by simply changing channels within the same band by filing Form 349 as a minor change application, rather than other costlier and less efficient remedies.

Background

On June 30, 2017, we published a final rule establishing a distinct population segment (DPS) of the grizzly bear (Ursus arctos horribilis) for the GYE and removing this DPS from the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h) (82 FR 30502, June 30, 2017; “2017 delisting rule”). In the 2017 delisting rule, we determined that the GYE grizzly bear population was no longer an endangered or threatened population pursuant to the ESA, based on the best scientific and commercial data available. Additional background information on the grizzly bear in the GYE and on this decision, including previous Federal actions, is found in our 2017 delisting rule.

Subsequently, six lawsuits challenging our 2017 delisting rule were filed in Federal district courts in Missoula, Montana, and Chicago, Illinois. The Chicago lawsuit was transferred to Missoula, Montana, and all six lawsuits were consolidated as Crow Indian Tribe, et al. v. United States, et al., case no. CV 17-89-M-DLC (D. Mont. 2018). Plaintiffs' allegations focused primarily on violations of the ESA and the Administrative Procedure Act (5 U.S.C. 500, et seq. ).

On September 24, 2018, the Montana District Court issued an order in Crow Indian Tribe, et al. v. United States, et al., 343 F.Supp.3d 999 (D. Mont. 2018), that vacated the 2017 delisting rule and remanded it back to the Service. Thus, this final rule is required to reflect the change in the GYE grizzly bear population's status effected by that order.

This rulemaking is necessary to comply with the September 24, 2018, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impracticable and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), that the agency has good cause to make this rule effective upon publication.

Per the September 24, 2018, court order, any and all grizzly bears in the GYE are once again listed as a threatened species under the ESA. Because the Court vacated the entire 2017 delisting rule, all grizzly bears in the lower 48 States are again listed as threatened. Accordingly, we are revising the entry for grizzly bear in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). An existing rule under section 4(d) of the ESA governing the regulation of grizzly bears in the lower 48 States (50 CFR 17.40(b)) again applies to this entire population.

We are also taking this opportunity to correct an omission in the “Listing citations and applicable rules” column. Per 50 CFR 17.11(f), the information in this column “is for reference and navigational purposes only.” We have become aware that the list of citations in this column does not include a final rule that published in 2010: “Endangered and Threatened Wildlife and Plants; Reinstatement of Protections for the Grizzly Bear in the Greater Yellowstone Ecosystem in Compliance With Court Order.” Therefore, we are adding this citation in chronological order to the list: 75 FR 14496, 3/26/2010. This change is purely administrative and has no regulatory effect.

This rule will not affect the grizzly bear's Appendix II status under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Accordingly, in order to comply with the court order discussed above, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Background on the Convention

The Convention is concerned with the conservation and management of highly migratory species (HMS) and the management of fisheries for HMS. The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of HMS in the western and central Pacific Ocean (WCPO). To accomplish this objective, the Convention established the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC), which includes Members, Cooperating Non-members, and Participating Territories (collectively referred to here as “members”). The United States of America is a Member. American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands are Participating Territories.

As a Contracting Party to the Convention and a Member of the Commission, the United States implements, as appropriate, conservation and management measures adopted by the Commission and other decisions of the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et seq. ), authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission. The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq. ), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS. A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC website at: www.wcpfc.int/doc/convention-area-map.

At its Fifteenth Regular Session, in December 2018, the WCPFC adopted Conservation and Management Measure (CMM) 2018-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2018-01 is the most recent in a series of CMMs for the management of tropical tuna stocks under the purview of the Commission. It is a successor to CMM 2017-01, adopted in December 2017. These and other CMMs are available at: www.wcpfc.int/conservation-and-management-measures. CMM 2018-01 is similar in many respects to its predecessor WCPFC conservation and management measures for tropical tunas, and NMFS has already implemented most provisions of CMM 2018-01 through prior rulemaking.

The purpose of CMM 2018-01 is to ensure the sustainability of the stocks of bigeye tuna ( Thunnus obesus ), yellowfin tuna ( Thunnus albacares ), and skipjack tuna ( Katsuwonus pelamis ) in the WCPO until the establishment of specific harvest strategies for those stocks. CMM 2018-01 went into effect on February 13, 2019, and remains in effect until February 10, 2021.

The provisions of CMM 2018-01 implemented in this interim final rule are the limits on fishing effort by U.S. purse seine vessels in the U.S. EEZ and on the high seas between the latitudes of 20° N. and 20° S. in the Convention Area. CMM 2018-01 specifies a limit of 558 fishing days in the U.S. EEZ and a limit of 1,270 fishing days on the high seas for each of the calendar years 2019 and 2020 for U.S. purse seine vessels.

CMM 2018-01 also includes new provisions for fish aggregating device (FAD) management for purse seine vessels. These new provisions are: (1) Specific FAD design requirements to reduce the risk of entanglement of sharks, sea turtles and other species; and (2) language to clarify that sets on small amounts of plastic or small garbage that do not have a tracking buoy attached are not considered to be FAD sets during the prohibition periods in 2019 for setting on FADs.

Regarding the specific FAD design requirements: The FAD design requirements do not need to go into effect until January 1, 2020, as specified in CMM 2018-01. They are not being implemented through this interim final rule; they may be implemented, as appropriate, in a separate rulemaking.

Regarding the language to clarify the nature of FAD sets: In 2018, NMFS implemented the provisions regarding the prohibition periods for setting on FADs set forth in CMM 2017-01, which are identical to the provisions set forth in CMM 2018-01. Under existing regulations, U.S. purse seine vessels are prohibited from setting on FADs in each calendar year from July 1 through September 30 in the area between 20° N latitude and 20° S latitude in the Convention Area, and for an additional two months on the high seas in that area (November and December). See 50 CFR 300.223(b). CMM 2018-01 included new language clarifying that sets on small amounts of plastic or garbage that do not have a tracking buoy are not considered to be FAD sets during the prohibition periods. The current definition of FAD at 50 CFR 300.211 states that FAD means “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any object used for that purpose that is situated on board a vessel or otherwise out of the water,” excluding a vessel. NMFS has not in the past, and continues not to, interpret the current regulatory FAD definition to include “sets on small amounts of plastic or garbage that do not have a tracking buoy” during prohibition periods. Because the CMM's language is consistent with NMFS' interpretation of the existing regulatory definition, NMFS is not revising the existing FAD definition found at 50 CFR 300.211.

CMM 2018-01 includes purse seine fishing effort limits for calendar year 2019 and calendar year 2020. Because the Commission will likely continue to adopt similar management measures for future years, and to ensure that the conservation measures do not lapse, NMFS is implementing the limits in this interim final rule to remain effective until they are replaced or amended.

Under CMM 2018-01, the specified U.S. purse seine fishing effort limit for the U.S. EEZ is 558 fishing days per year and the specified limit for the high seas is 1,270 fishing days per year. CMM 2017-01 and CMM 2018-01 both include language that requires any overage of an annual limit to be deducted from the limit for the following year. The separate limits for 2018 were 1,370 fishing days for the high seas and 458 fishing days for the U.S. EEZ. As a result of the purse seine fishing effort limit for the high seas being reached, NMFS closed the high seas in the Convention Area to U.S. purse seine fishing on September 18, through the end of the calendar year (see 83 FR 45849; published September 11, 2018). NMFS estimates that the U.S. WCPO purse fleet fished for a total of 1,582 days on the high seas, which is 212 fishing days over the 2018 limit for the high seas.

In the past, NMFS has implemented the U.S. purse seine fishing effort limits on the high seas and in the U.S. EEZ as a single combined limit, rather than establishing separate limits for the two areas. For 2018 only, NMFS established separate limits for the U.S. EEZ and the high seas. This was done in response to a provision in CMM 2017-01 (not included in previous CMMs or CMM 2018-01) providing for the transfer of a limited number of the United States' EEZ fishing days to the high seas.

Because under CMM 2018-01 the United States is no longer limited by the transfer provision that was included in CMM 2017-01, NMFS is combining the purse seine fishing effort limits for the U.S. EEZ and the high seas, consistent with previous rulemakings. For 2019, this interim final rule establishes a limit of 1,616 fishing days (558 fishing days from the U.S. EEZ limit plus 1,270 days from the high seas limit less the 212 fishing day overage of the 2018 high seas limit) for the Effort Limit Area for Purse Seine (or ELAPS), which comprises the areas of the high seas and U.S. EEZ between 20° N. latitude and 20° S. latitude in the Convention Area. For 2020 and subsequent years, this interim final rule establishes a combined limit of 1,828 fishing days per calendar year for the ELAPS, which could be modified to take into consideration any overage of a previous year's limit.

Combining the high seas and EEZ limits is consistent with the objectives of CMM 2018-01. The Commission's limits on purse seine fishing effort are designed, in combination with other measures, to control fishing mortality on the tropical tuna stocks. The CMM has identified separate limits for EEZs and the high seas not for any stated conservation purpose, but rather to ensure effective implementation. The Commission decided that management of fishing effort in zones should be the responsibility of coastal members, and management of fishing effort on the high seas should be the responsibility of flag members. Accordingly, where as in the case of the United States, the member is both a flag state and a coastal state, combining the EEZ and high seas limits meets the conservation objectives of the CMM provided that the sum of the two limits is not exceeded.

NMFS considered both the action alternative that would combine the two areas and another alternative that would not (see the PEA and the RIR for comparisons of the two alternatives). Because both alternatives would accomplish the objective of controlling fishing effort by the WPCFC-adopted amount ( i.e., by U.S. purse seine vessels operating on the high seas and by purse seine vessels in areas under U.S. jurisdiction, collectively), and because the alternative of combining the two areas is expected to result in greater operational flexibility to affected purse seine vessels and lesser adverse economic impacts, NMFS is implementing the alternative that would combine the two areas.

The meaning of “fishing day” is defined at 50 CFR 300.211; that is, any day in which a fishing vessel of the United States equipped with purse seine gear searches for fish, deploys a FAD, services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch. NMFS notes the U.S. purse seine industry provided two comment letters in response to a notice issued by NOAA regarding streamlining regulatory processes and reducing regulatory burden (see 82 FR 31576; published July 7, 2017), requesting that the definition of fishing day be changed to the definition used by the Parties to the Nauru Agreement in the Palau Arrangement for the Management of the Western Pacific Fishery Management Scheme (Purse Seine Vessel Day Scheme) as amended by the Parties to the Palau Arrangement (Arrangement). 1 NMFS continues to believe the existing definition at 50 CFR 300.211 is appropriate.

NMFS will monitor the number of fishing days spent in the ELAPS using data submitted in logbooks and other available information. If and when NMFS determines that the limit of 1,616 fishing days is expected to be reached by a specific future date in 2019, or the limit of 1,828 is expected to be reached by a specific future date in 2020 or subsequent years, it will publish a notice in the Federal Register announcing that the purse seine fishery in the ELAPS will be closed starting on a specific future date and will remain closed until the end of calendar year. NMFS will publish that notice at least seven days in advance of the closure date.

As stated in existing regulations at 50 CFR 300.223(a)(4), starting on the announced closure date, and for the remainder of calendar year, it will be prohibited for U.S. purse seine vessels to fish in the ELAPS, except that such vessels are not prohibited from bunkering during the closure.

The Administrator, Pacific Islands Region, NMFS, has determined that this interim final rule is consistent with the WCPFC Implementation Act and other applicable laws.

There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because prior notice and the opportunity for public comment would be contrary to the public interest. This rule establishes limits on purse seine fishing effort for 2019 and future years that are similar to the limits in place from 2009 through 2018. Affected entities have been subject to fishing effort limits in the affected area—the ELAPS—since 2009, and are expecting imminent publication of the 2019 fishing effort limits. It is critical that NMFS publish the limit for 2019 as soon as possible to ensure it is not exceeded and the United States complies with its obligations with respect to CMM 2018-01. Based on data available to date, NMFS expects that the applicable limit of 1,616 fishing days in the ELAPS could be reached in the first half of the calendar year. Delaying this rule to allow for advance notice and public comment would bring a substantial risk that more than 1,616 fishing days would be spent in the ELAPS in 2019, constituting non-compliance by the United States with respect to the purse seine fishing effort limit provisions of CMM 2018-01. Because a delay in implementing this limit for 2019 could result in the United States violating its obligations with respect to the purse seine fishing effort limit provisions of CMM 2018-01, which are important for the conservation and management of tropical tuna stocks in the WCPO, allowing advance notice and the opportunity for public comment would be contrary to the public interest. NMFS will, however, consider public comments received on this interim final rule and issue a final rule, responding to comments as appropriate. Moreover, NMFS notes that the United States government shutdown in late 2018 and early 2019 affected NMFS' ability to proceed with this rulemaking in the usual timeframe after the Commission adopted CMM 2018-01.

For the reasons articulated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this rule. As described above, NMFS must implement the purse seine fishing effort limits as soon as possible to ensure that they are not exceeded. A delay in implementing this limit for 2019 could result in the United States violating its obligations with respect to the purse seine fishing effort limit provisions of CMM 2018-01, which are important for the conservation and management of tropical tuna stocks in the WCPO.

This interim final rule has been determined to be not significant for purposes of Executive Order 12866.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Therefore, no regulatory flexibility analysis was required and none has been prepared.

Although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act, existing collection-of information requirements would apply in the Convention Area, under the following Control Number: 0648-0649, Transshipment Requirements under the WCPFC.

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

The snapper-grouper fishery of the South Atlantic includes snowy grouper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial ACL (commercial quota) for snowy grouper in the South Atlantic is 153,935 lb (69,824 kg), gutted weight, 181,644 lb (82,392 kg), round weight, for the current fishing year, January 1 through December 31, 2019, as specified in 50 CFR 622.190(a)(1)(v).

Under 50 CFR 622.193(b)(1), NMFS is required to close the commercial sector for snowy grouper when the commercial ACL is reached or projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS projects that commercial landings of South Atlantic snowy grouper, as estimated by the Science and Research Director, will reach the commercial quota by August 3, 2019. Accordingly, the commercial sector for South Atlantic snowy grouper is closed effective at 12:01 a.m., local time, on August 3, 2019, until 12:01 a.m., local time, on January 1, 2020.

The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having snowy grouper on board must have landed and bartered, traded, or sold such snowy grouper prior to 12:01 a.m., local time, on August 3, 2019. During the commercial closure, harvest and possession of snowy grouper in or from the South Atlantic EEZ is limited to the bag and possession limits, as specified in § 622.187(b)(2)(ii) and (c)(1). Also during the commercial closure, the sale or purchase of snowy grouper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of snowy grouper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, on August 3, 2019, and were held in cold storage by a dealer or processor.

For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the sale and purchase provisions of the commercial closure for snowy grouper would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of snowy grouper and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(b)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA), finds that the need to immediately implement this action to close the commercial sector for snowy grouper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the implementing final rule for these AMs has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect snowy grouper since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS and the Councils manage the spiny lobster fishery under the FMP. The Councils prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801, et seq. ).

On April 2, 2019, NMFS published a notice of availability (NOA) for Amendment 13 and requested public comment (83 FR 12573). On April 18, 2019, NMFS published a proposed rule for Amendment 13 and requested public comment (84 FR 16233). Amendment 13 and the proposed rule outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 13 and implemented by this final rule is provided below.

This final rule implements measures to modify the Federal regulations regarding spiny lobster to be compatible with Florida regulations concerning bully net gear requirements and commercial daily possession limits. This rule also clarifies outdated language in the spiny lobster Federal regulations and updates the incorporations by reference to the Florida regulations. In addition, Amendment 13 re-establishes a procedure for an enhanced cooperative management system to provide Florida a mechanism to propose spiny lobster regulations directly to NMFS for implementation.

This final rule aligns Federal and Florida bully net regulations to improve enforcement and reduce potential confusion among fishers. The rule requires commercial bully net vessels in the EEZ off Florida to have a bully net permit from Florida; requires such a vessel to be marked with the harvester's Florida bully net permit number using reflective paint or other reflective material; prohibits commercial bully net vessels from having trap pullers onboard; and prohibits the simultaneous possession of a bully net and any underwater breathing apparatus (not including dive masks or snorkels) onboard a vessel used to harvest or transport spiny lobster for commercial purposes.

This final rule incorporates by reference the most recent Florida definition of commercial harvester, which is a person who holds a valid saltwater products license with a restricted species endorsement issued by the Florida Fish and Wildlife Conservation Commission (FWC) and (1) a valid crawfish license or trap number and lobster trap certificates, if traps are used to harvest spiny lobster; (2) a valid commercial dive permit if harvest is by diving; or (3) a valid bully net permit if harvest is by bully net. Under Florida's regulations, commercial harvesters are restricted to the commercial harvest limits when bully net gear or dive gear is used. Therefore, bully net and dive fishers would be restricted to the state bag limit regardless where the spiny lobster are harvested. However, to make the requirements in the EEZ off Florida more clear, this proposed rule would modify Federal regulations to specifically state the commercial vessel limit for spiny lobster harvested by bully net off all Florida counties, and harvested by diving off Broward, Dade, Monroe, Collier, and Lee Counties, Florida, is 250 spiny lobster per vessel per day.

This final rule also revises and clarifies language in the spiny lobster Federal regulations, including updating phone numbers and websites referenced in 50 CFR 622.413, and correcting a typographic mistake in 50 CFR 622.415. This rule also removes the phrase “during times other than the authorized fishing season” from 50 CFR 622.402(c)(1), to clarify that unmarked traps are illegal gear, regardless of the time of year, and may be removed in accordance with Florida regulations.

The final rule updates the incorporation by reference in 50 CFR 622.400(a)(1)(i) which provides the definition of commercial harvester.

The rule also updates the incorporation by reference of the Florida Administrative Code in 50 CFR 622.402(a)(1) and (2) to reflect the effective dates of the current Florida regulations, which mandate that vessel owners and/or operators who harvest spiny lobster by traps in the EEZ off Florida comply with Florida vessel and gear identification requirements. The final rule designates a new incorporation by reference which specifies vessel identification requirements for commercial spiny lobster harvesters who use bully nets to the paragraph added at 50 CFR 622.402(a)(3). It similarly updates the incorporation by reference of the Florida Administrative Code in 50 CFR 622.403(b)(3)(i) and 622.405(b)(2)(i) to reflect the effective dates of the current Florida regulations and address derelict spiny lobster traps as well as the requirements for lawful spiny lobster trap pulling, respectively. The final rule adds new incorporation by reference of the Florida Administrative Code, in 50 CFR 622.404(e) and (f), which address the alignment of management measures with Florida's regulations, including prohibiting the simultaneous possession of a bully net and any underwater breathing apparatus, and prohibiting the possession of trap pullers, respectively, as discussed above.

The Florida regulations are available at http://www.flrules.org and the Florida Division of Marine Fisheries Management, 620 South Meridian Street, Tallahassee, FL 32399 (telephone: 850-487-0554).

In addition to the measures in this final rule, Amendment 13 re-establishes a procedure that allows Florida to propose rules directly to NMFS, which will increase NMFS' ability to implement consistent Federal regulations in a timely manner.

During the public comment period, NMFS received one comment from the Florida Fish and Wildlife Conservation Commission (FWC) and two comments from individuals on Amendment 13 and the proposed rule. These comments, as well as NMFS' respective response, are detailed below. No changes are being made in response to the comments.

Comment 1: The Florida Fish and Wildlife Conservation Commission (FWC) suggests additional changes to paragraph (c)(1) in section 622.402 to allow for the removal of all derelict traps in the EEZ of Florida, instead of only unmarked traps.

Response: NMFS has determined that it is not appropriate to make the suggested changes in this final rule because they would expand the scope of paragraph (c) beyond what was contemplated in the proposed rule. Section 622.402(c) addresses “unmarked traps and buoys,” stating that these traps and buoys are illegal gear. Paragraph (c)(1) currently states that this gear, during times other than the authorized fishing season, will be considered derelict and may be disposed of consistent with 65B-55.002 and 65B-55.004 of the Florida Administrative Code. This final rule removes the phrase “during times other than the authorized fishing season,” to clarify that unmarked gear are illegal gear, regardless of the time and year, and may be removed in accordance with Florida regulations. Because the definition of “derelict trap” in the Florida regulations includes more than just an unmarked trap, authorizing the removal of all derelict traps would expand the gear currently identified as illegal under section 622.402, as amended by this final rule. Therefore, NMFS is not changing the proposed rule in response to this comment. However, we note that Amendment 13 reestablishes a procedure to allow Florida to propose rules directly to NMFS. If appropriate, FWC could consider using this new procedure to propose changes to section 622.402(c) to make the illegal gear identified in this provision consistent with the Florida regulations.

Comment 2: The regulations for spiny lobster that apply in the EEZ off Florida should also apply in the EEZ off the coasts of North Carolina, South Carolina, and Georgia.

Response: NMFS disagrees. As noted above, the majority of spiny lobster in the Gulf and South Atlantic occurs off the coast of Florida. The purpose of Amendment 13 is to align Florida and Federal regulations to both enhance enforcement in this area and reduce potential confusion by fishers. The Councils did not consider expanding the regulations for spiny lobster that apply off the coast of Florida throughout the entire South Atlantic EEZ.

Comment 3: The procedure to allow Florida to propose regulations directly to NMFS could allow Florida to implement measures that are not sufficiently protective of the spiny lobster stock.

Response: NMFS disagrees. The procedure that allows Florida to submit proposed regulations for spiny lobster management directly to NMFS requires that the proposed regulations be consistent with the objectives of the FMP, the Magnuson-Stevens Act, and other applicable law. In addition, the Councils must approve the proposed regulations and NMFS must implement these regulations consistent with Administrative Procedure Act. This includes publishing a proposed rule and soliciting public comment. After reviewing the public comments, NMFS may, in consultation with the Councils, make appropriate revisions to the proposed regulations prior to publishing a final rule.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with Amendment 13, the FMP, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record keeping, or other compliance requirements are introduced by this final rule. Accordingly, the Paperwork Reduction Act does not apply to this final rule.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. None of the public comments that were received specifically addressed the certification and NMFS has not received any new information that would affect its determination that this rule would not have a significant economic impact on a substantial number of small entities. As a result, a final regulatory flexibility analysis was not required and none was prepared.

Pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive the 30-day delay in the date of effectiveness for the incorporation by reference of Florida Administrative Code (F.A.C.) provisions (F.A.C., Chapter 68B-24: Spiny lobster (crawfish) and slipper lobster, Rule 68B-24.005: Seasons) as referenced in 50 CFR 622.413(b)(3), because such a delay would be contrary to the public interest. The F.A.C. provisions referenced in 50 CFR 622.413(b)(3) include a provision to allow spiny lobster harvesters to bait and place their traps in the water beginning on the Saturday immediately following the recreational sport season; this year, the Saturday immediately following the recreational sport season is July 27, 2019. Once this section is effective, it will allow the commercial harvesters to place their traps to soak in the water on July 27, instead of requiring them to wait until August 1. Because the state of Florida will allow the spiny lobster harvesters to place their traps in state waters on July 27, 2019, having a different date to place their traps in Federal waters off Florida may create significant confusion and unnecesarily complicate law enforcement efforts, which is contrary to the public interest. If this part of the final rule were delayed by 30 days, the spiny lobster trap harvesters in Federal waters off Florida would miss the earliest possible date they could set their traps, which may result in a reduced harvest opportunity and lower economic benefits.

In addition, because this measure allows traps to be placed in the water on July 27 instead of August 1, it relieves a restriction, and therefore it also falls within the 5 U.S.C. 553(d)(1) exception to the 30-day delay in the date of effectiveness requirement. The commercial spiny lobster season begins on August 6, 2019, and NMFS wants to allow all spiny lobster harvesters the earliest opportunity to place their traps in Federal waters off Florida beginning in 2019, as intended by the Councils in Amendment 13. Waiving the 30-day delay in the date of effectiveness for § 622.413(b)(3) will allow this final rule to more fully benefit the fishery through increased fishing opportunities as described in Amendment 13 and as intended by the Councils.

Only the provisions of § 622.413(b)(3) are effective on the date of filing for inspection with the Office of the Federal Register. All other management measures contained in this final rule are effective 30 days after publication in the Federal Register .

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: