[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Rules and Regulations]
[Pages 7610-7614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03524]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0382; FRL-9974-66--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the Commonwealth of Virginia (Virginia) 
state implementation plan (SIP). The revisions are related to the 
implementation of the 2008 ozone national ambient air quality standards 
(NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is 
approving these revisions updating the Virginia SIP to reflect the 
revocation of the 1997 ozone NAAQS in accordance with the requirements 
of the Clean Air Act (CAA).

DATES: This final rule is effective on March 26, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0382. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
http://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814-2043, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants \1\ in 
order to protect human health and the environment. In response to 
scientific evidence linking ozone exposure to adverse health effects, 
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA 
requires EPA to review and reevaluate the NAAQS every 5 years in order 
to consider updated information regarding the effects of the criteria 
pollutants on human health and the environment. On July 18, 1997, EPA 
promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, 
of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone 
NAAQS was determined to be more protective of public health than the 
previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour 
ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred 
to as the 2008 ozone NAAQS and is more stringent than the previous 1997 
ozone NAAQS. See 73 FR 16436 (March 27, 2008).\2\
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    \1\ The ``criteria pollutants'' include ozone (O3), 
particulate matter (PM), sulfur dioxide (SO2), nitrogen 
dioxide (NO2), carbon monoxide (CO), and lead (Pb).
    \2\ On October 1, 2015, EPA strengthened the ground-level ozone 
NAAQS to 0.070 ppm. See 80 FR 65292 (October 26, 2015). This 
rulemaking addresses the 2008 ozone NAAQS and does not address the 
2015 ozone NAAQS.
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    On March 6, 2015, EPA issued a final rule addressing a range of 
nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR 
12264. This final rule also revoked the 1997 ozone NAAQS and 
established anti-backsliding requirements for areas not attaining the 
1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997 
ozone NAAQS was revoked. The anti-backsliding provisions require states 
to retain all applicable control requirements for the 1997 ozone NAAQS, 
while enabling states, where possible, to focus planning efforts on 
meeting the more protective 2008 ozone NAAQS. According to EPA's final 
rule, the revocation of the 1997 ozone NAAQS was effective as of April 
6, 2015.
    On September 9, 2016, Virginia amended the Virginia Administrative 
Code to be consistent with EPA's March 6, 2015 final rule. On February 
10, 2017, Virginia, through the Virginia Department of Environmental 
Quality (VADEQ), formally submitted a SIP revision (Revision G16) 
reflecting these amendments.
    On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for Virginia approving the SIP revision. EPA 
received two adverse comments on the rulemaking and attempted to 
withdraw the DFR prior to

[[Page 7611]]

the effective date of October 16, 2017. However, EPA inadvertently did 
not withdraw the DFR prior to that date and the rule automatically and 
prematurely became effective on October 16, 2017, revising Virginia's 
SIP to reflect the revocation of the 1997 ozone NAAQS. In the NPR, EPA 
had proposed to approve the SIP revision, which included amendments 
made to provisions in Virginia's State Air Pollution Control Board's 
Regulations for the Control and Abatement of Air Pollution including 
9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. These 
revisions to the Virginia Administrative Code amended Virginia's 
regulatory provisions to reflect EPA's revocation of the 1997 ozone 
NAAQS and the implementation of the 2008 ozone NAAQS. In this final 
rulemaking, EPA is responding to the comments submitted on the proposed 
revision to the Virginia SIP and is reapproving the revisions to the 
Virginia SIP to reflect the revocation of the 1997 ozone NAAQS after 
our failure to withdraw the DFR (after EPA received adverse public 
comments) prior to the October 16, 2017 effective date of the DFR.

II. Summary of SIP Revision and EPA Analysis

    Virginia's February 10, 2017 SIP submittal included amended 
versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. 
Virginia requested that EPA approve the SIP revision so that these 
amended regulations would become part of the Virginia SIP. The 
amendment to 9VAC5-20-204 added text stating that the list of Northern 
Virginia moderate nonattainment areas under the 1997 ozone NAAQS is no 
longer effective after April 6, 2015, the effective date of the 
revocation of the 1997 ozone NAAQS. The amendment to 9VAC5-30-55 added 
text stating that the primary and secondary ambient air quality 
standard of 0.08 ppm shall no longer apply after April 6, 2015. 
Virginia also amended the Regulation for Transportation Conformity and 
the Regulation for General Conformity by adding clarifying text to 
9VAC5-151-20 and 9VAC5-160-30 stating that ``The provisions of this 
chapter shall not apply in nonattainment and maintenance areas that 
were designated nonattainment or maintenance under a federal standard 
that has been revoked.'' These revisions to the Virginia Administrative 
Code reflect EPA's revocation of the 1997 ozone NAAQS.
    EPA's review of this material indicates the February 10, 2017 
submittal is approvable as it revises regulations to be consistent with 
EPA's final rule implementing the 2008 ozone NAAQS. See 80 FR 12264 
(March 6, 2015). The revisions update regulations to reflect the 
revocation of the 1997 NAAQS, which was effective April 6, 2015. 
Therefore, the revisions do not affect emissions of air pollutants or 
interfere with any applicable requirement concerning attainment or 
reasonable further progress or any other applicable requirements in the 
CAA. Thus, EPA finds the revision approvable in accordance with section 
110, including section 110(l), of the CAA.

III. Public Comments and EPA's Responses

    EPA received two anonymous public comments on our action to approve 
the February 10, 2017 SIP submittal.
    Comment: The first commenter stated that EPA cannot revoke the 1997 
ozone NAAQS and cited a current court case in the United States Court 
of Appeals for the District of Columbia Circuit (D.C. Circuit). The 
commenter recommended that EPA wait until the D.C. Circuit's decision 
and not ``loosen standards.''
    Response: EPA would like to clarify that the proposed revision to 
the Virginia SIP does not revoke the 1997 ozone NAAQS as the 1997 ozone 
NAAQS were revoked previously by EPA in a separate rulemaking effective 
April 6, 2015. See 80 FR 12264. The commenter's ability to challenge 
revocation of the 1997 ozone NAAQS was in that prior rulemaking. This 
particular rulemaking action is only removing references to the 
``revoked'' 1997 ozone NAAQS that had been in Virginia's SIP. Thus, the 
commenter's statement that EPA should not revoke the 1997 ozone NAAQS 
is not relevant to this rulemaking.
    EPA acknowledges that there is presently a legal challenge in the 
D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.\3\ 
However, EPA disagrees with the commenter that EPA should wait for the 
outcome of this litigation before approving the Virginia SIP revision. 
As stated above, this SIP revision does not revoke the 1997 ozone NAAQS 
as the revocation of the NAAQS was effective on April 6, 2015 per EPA's 
March 6, 2015 rule. Additionally, nothing in section 110 of the CAA 
prevents Virginia from removing its references to the revoked 1997 
ozone NAAQS from its SIP, as the removal does not affect emissions of 
air pollutants as it does not impact any applicable SIP requirements 
that apply to an area, interfere with any applicable requirements in 
the CAA, nor interfere with reasonable further progress. See section 
110(l) of the CAA. Thus, EPA finds the revision approvable in 
accordance with section 110, including section 110(l), of the CAA.
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    \3\ South Coast Air Quality Management District v. EPA, Case 
Nos. 15-1115, 15-1123 (U.S. Court of Appeals, D.C. Cir.).
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    In response to the commenter's concern that EPA's approval will 
``loosen standards,'' EPA notes that the 2008 ozone NAAQS of 0.075 ppm, 
which EPA is presently implementing in collaboration with states such 
as Virginia, is more protective of human health and the environment 
than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone 
nonattainment areas in Virginia are the same for the 1997 ozone NAAQS 
as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone 
NAAQS from the Virginia SIP is not expected to have any emissions 
impact nor interfere with reasonable further progress or any applicable 
CAA requirement. See also 80 FR 12264.
    Comment Summary: The second commenter requested that EPA not revoke 
the ozone NAAQS.
    Response: As discussed in detail in response to the first comment, 
EPA's approval of the removal of references in the Virginia SIP to the 
revoked 1997 ozone NAAQS does not actually revoke the 1997 ozone NAAQS 
as EPA previously effectuated that revocation in a prior, separate 
rulemaking. See 80 FR 12264.

IV. Final Action

    EPA is approving the Virginia SIP revision submitted on February 
10, 2017, which includes amendments made to several sections of the 
Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55, 
9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP 
because the revisions meet the requirements of CAA section 110. EPA is 
reapproving the revisions to Virginia's SIP because the revisions were 
added to the SIP prematurely on October 16, 2017 when EPA failed to 
withdraw its DFR after receiving two adverse comments on our direct 
final approval of the revisions to the Virginia SIP to reflect the 
revocation of the 1997 ozone NAAQS. This rule, which responds to the 
adverse comments received, finalizes our approval.

V. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations

[[Page 7612]]

performed by a regulated entity. The legislation further addresses the 
relative burden of proof for parties either asserting the privilege or 
seeking disclosure of documents for which the privilege is claimed. 
Virginia's legislation also provides, subject to certain conditions, 
for a penalty waiver for violations of environmental laws when a 
regulated entity discovers such violations pursuant to a voluntary 
compliance evaluation and voluntarily discloses such violations to the 
Commonwealth and takes prompt and appropriate measures to remedy the 
violations. Virginia's Voluntary Environmental Assessment Privilege 
Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from 
disclosure documents and information about the content of those 
documents that are the product of a voluntary environmental assessment. 
The Privilege Law does not extend to documents or information that: (1) 
Are generated or developed before the commencement of a voluntary 
environmental assessment; (2) are prepared independently of the 
assessment process; (3) demonstrate a clear, imminent and substantial 
danger to the public health or environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
federally authorized environmental programs in a manner that is no less 
stringent than their federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the revisions 
to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 of the 
State Air Pollution Control Board's Regulation for the Control and 
Abatement of Air Pollution discussed in Section II of this preamble. 
EPA has made, and will continue to make, these materials generally 
available through http://www.regulations.gov and at the EPA Region III 
Office (please contact the person identified in the For Further 
Information Contact section of this preamble for more information). 
These materials have been approved by EPA for inclusion in the SIP, 
have been incorporated by reference by EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of EPA's approval, and will be 
incorporated by reference by the Director of the Federal Register in 
the next update to the SIP compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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VII. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as

[[Page 7613]]

specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    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 April 23, 2018. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action to approve revised provisions of the Virginia 
Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, 
and 9VAC5-160-30 for inclusion in the Virginia SIP may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: February 9, 2018.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

     Authority:  42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising 
the entries for Sections 5-20-204, 5-30-55, 5-151-20, and 5-160-30. The 
revised text reads as follows:


Sec.  52.2420   Identification of plan.

* * * * *
    (c) * * *

                                                     EPA-Approved Virginia Regulations and Statutes
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                                                                                     State                                    Explanation [former SIP
        State citation                           Title/subject                  effective date      EPA approval date                citation]
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                                                                      * * * * * * *
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                                                         9 VAC 5, Chapter 20 General Provisions
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                                                                      * * * * * * *
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                                                              Part II Air Quality Programs
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                                                                      * * * * * * *
5-20-204......................  Nonattainment Areas...........................        11/16/16  2/22/18, [Insert Federal   Addition of Subdivision C.
                                                                                                 Register Citation].       Previous approval 8/14/15.
 
                                                                      * * * * * * *
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                                              9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                                      * * * * * * *
5-30-55.......................  Ozone (8-hour, 0.08 ppm)......................        11/16/16  2/22/18, [Insert Federal   Subdivision D. is revised to
                                                                                                 Register Citation].        read that the 1997 8-hour
                                                                                                                            ozone NAAQS no longer apply
                                                                                                                            after April 6, 2015.
                                                                                                                           Previous approval 6/11/13.
 
                                                                      * * * * * * *
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                                                     9 VAC 5, Chapter 151 Transportation Conformity
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                                                                      * * * * * * *
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                                                               Part II General Provisions
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5-151-20......................  Applicability.................................        11/16/16  2/22/18, [Insert Federal   Subdivision B. is amended to
                                                                                                 Register Citation].        address revoked federal
                                                                                                                            standards.
                                                                                                                           Previous approval 11/20/09.
 

[[Page 7614]]

 
                                                                      * * * * * * *
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                                                         9 VAC 5, Chapter 160 General Conformity
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                                                                      * * * * * * *
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                                                               Part II General Provisions
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5-160-30......................  Applicability.................................        11/16/16  2/22/18, [Insert Federal   Subdivision A. is amended to
                                                                                                 Register Citation].        address revoked federal
                                                                                                                            standards.
                                                                                                                           Previous approval 12/12/11.
 
                                                                      * * * * * * *
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[FR Doc. 2018-03524 Filed 2-21-18; 8:45 am]
 BILLING CODE 6560-50-P


