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Federal Register/Vol. 84, No. 169/Friday, August 30, 2019/Rules

Federal Register/Vol. 84, No. 169/Friday, August 30, 2019/Rules

Federal Register / Vol. 84, No. 169 / Friday, 30, 2019 / Rules and Regulations 45683

Contractor is responsible for the compliance a declining scale will be used in negotiating DEPARTMENT OF TRANSPORTATION of its subcontractors with the provisions of the percentage of overhead and profit. This this clause. declining scale will also be used to negotiate Federal Railroad Administration (End of clause) the prime Contractor’s or upper-tier 852.236–88 [Removed and Reserved] subcontractor’s fee when work is performed 49 CFR Part 270 by lower-tier subcontractors (to a maximum ■ [Docket No. FRA–2011–0060, Notice No. 11] 15. Section 852.236–88 is removed of three tiers) and will be based on the net and reserved. increased cost to the prime or upper-tier RIN 2130–AC81 ■ 16. Section 852.243–70 is added to subcontractor, as applicable. Profit (fee) shall read as follows: be computed by multiplying the profit System Safety Program percentage by the sum of the direct costs and 852.243–70 Construction Contract AGENCY: Federal Railroad Changes—Supplement. computed overhead costs. Allowable percentages on changes will not exceed the Administration (FRA), Department of As prescribed in 843.205–70, the following: Transportation (DOT). Contracting Officer shall insert this (i) 10 percent overhead and/or 10 percent ACTION: Final rule; stay of regulations. clause in solicitations and contracts for profit (fee) on the first $20,000. construction that are expected to exceed (ii) 7.5 percent overhead and/or 7.5 percent SUMMARY: On , 2016, FRA the micro-purchase threshold. The profit (fee) on the next $30,000. published a final rule requiring Contracting Officer shall fill in the (iii) 5 percent overhead and/or 5 percent commuter and intercity passenger number of days in which a Contractor profit (fee) on a balance over $50,000. railroads to develop and implement a must assert its right to an equitable (2) The Contracting Officer will consider system safety program (SSP) to improve adjustment; however, such amount shall issuing a settlement by determination to the the safety of their operations. FRA has not exceed 60 calendar days. contract if the Contractor’s proposal required stayed the SSP final rule’s requirements until 4, 2019. FRA is issuing Construction Contract Changes— by paragraph (3) is not received within 30 this final rule to extend that stay until Supplement (SEP 2019) calendar days, or if agreement has not been reached. 4, 2020. The FAR clauses 52.236–2, Differing Site (c)(1) Overhead and Contractor’s fee DATES: Effective , 2019, 49 Conditions; 52.243–4, Changes; and 52.243– percentages shall be considered to include CFR part 270, stayed 13, 2017, 5, Changes and Changed Conditions, are insurance other than mentioned herein, field supplemented as follows: at 82 FR 10443, and further stayed (a) Submission of request for equitable and office supervisors and assistants, security , 2017, at 82 FR 14476, adjustment proposals. When directed by the police, use of small tools, incidental job 22, 2017, at 82 FR 23150, 7, 2017, Contracting Officer or requested by the burdens, and general home office expenses at 82 FR 26359, 30, 2017, at Contractor, the Contractor shall, in and no separate allowance will be made. 82 FR 56744, and 7, 2018, at accordance with FAR 15.403–5, submit Assistants to office supervisors include all 83 FR 63106, is further stayed until proposals for changes in the work exceeding clerical, stenographic and general office help. , 2020. $500,000 in writing to the Contracting Officer Incidental job burdens include, but are not or Administrative Contracting Officer (ACO), ADDRESSES: Docket: For access to the necessarily limited to, office equipment and docket to read background documents and to the resident engineer. supplies, temporary toilets, telephone and (1) The Contractor must provide an or comments received, go to http:// conformance to OSHA requirements. Items itemized breakdown for changes exceeding www.regulations.gov and follow the such as, but not necessarily limited to, the micro-purchase threshold (see FAR online instructions for accessing the review and coordination, estimating and 2.101). docket. (2) The itemized breakdown shall include expediting relative to contract changes are materials, quantities, unit prices, labor costs associated with field and office supervision FOR FURTHER INFORMATION CONTACT: (separated into trades), construction and are considered to be included in the Elizabeth A. Gross, Attorney, U.S. equipment, etc. Labor costs shall be Contractor’s overhead and/or fee percentage. Department of Transportation, Federal identified with specific material placed or (2) Where the Contractor’s or Railroad Administration, Office of Chief operation performed. subcontractor’s portion of a change involves Counsel; telephone: 202–493–1342; (3) Proposals shall be submitted to the credit items, such items must be deducted email: [email protected]. Contracting Officer or ACO and the resident prior to adding overhead and profit for the engineer as expeditiously as possible, but not SUPPLEMENTARY INFORMATION: On August later than [fill-in] calendar days, after receipt party performing the work. The Contractor’s 12, 2016, FRA published a final rule of a written change order by the Contracting fee is limited to the net increase to Contractor requiring commuter and intercity Officer. or subcontractors’ portions of cost computed passenger railroads to develop and (4) Proposals shall be signed by each in accordance with this clause. implement an SSP to improve the safety subcontractor participating in the change. (3) Where a change involves credit items of their operations. See 81 FR 53850. On (5) The Contracting Officer will consider only, a proper measure of the amount of , 2017, FRA stayed the SSP issuing a settlement by determination to the downward adjustment in the contract price is final rule’s requirements until March 21, contract if the Contractor’s proposal required the reasonable cost to the Contractor if it had by paragraph (a)(3) of this clause is not 2017, consistent with the new performed the deleted work. A reasonable Administration’s guidance issued received within the time period specified in allowance for overhead and profit are paragraph (a)(3), or if agreement has not been 20, 2017, intended to provide properly includable as part of the downward reached. the Administration an adequate adjustment for a deductive change. The (b) Paragraphs (a)(1) through (5) of this opportunity to review new and pending amount of such allowance is subject to clause and the following paragraphs (b)(1) regulations. See 82 FR 10443 (Feb. 13, negotiation. and (2) apply to proposals for changes in the 2017). To provide additional time for work $500,000 or less: (End of clause) that review, FRA extended the stay until (1) As a basis for negotiation, allowances [FR Doc. 2019–18524 Filed 8–29–19; 8:45 am] not to exceed 10 percent each for overhead , 2017, , 2017, December and profit for the party performing the work BILLING CODE 8320–01–P 4, 2017, , 2018, and then will be based on the value of labor, material, , 2019. See 82 FR 14476 and equipment required to accomplish the (Mar. 21, 2017); 82 FR 23150 (May 22, change. As the value of the change increases, 2017); 82 FR 26359 (, 2017); 82 FR

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56744 (Nov. 30, 2017), and 83 FR 63106 meeting was necessary for FRA to implement the rule immediately. No (Dec. 7, 2018). The provisions in part receive input from industry and the other commenters responded to FRA’s 270 were adopted on August 12, 2016, public, and to discuss potential paths request for comment on a proposed stay for the purposes of 49 U.S.C. 20119(b). forward to respond to the Petitions prior extension. That adoption was unaffected by the to FRA taking final action. During the FRA has considered Amtrak’s subsequent stays. meeting, a representative from the comment opposing extension of the stay FRA’s review included petitions for Oregon Department of Transportation in light of Amtrak’s central role in the reconsideration of the SSP final rule asked whether the SSP final rule would Nation’s passenger rail system. (Petitions). Various rail labor be further stayed pending FRA’s Nevertheless, given the number of organizations (Labor Organizations) development of a response to the comments received in response to the filed a single joint petition.1 State and Petitions and public input received at SSP NPRM, the importance of the issues local transportation departments and the meeting. An FRA representative discussed therein, the lack of opposition authorities (States) filed the three other indicated that he anticipated a further to the stay from all commenters except petitions, one of which was a joint stay of the rule to provide time to Amtrak, and FRA’s interest in petition (State Joint Petition).2 The State resolve the issues raised by the addressing the issues raised in the Joint Petition requested that FRA stay petitions. None of the meeting petitions through notice and comment the SSP final rule, and NCDOT participants expressed opposition to a rulemaking prior to requiring full specifically requested that FRA stay the further stay. See generally FRA–2011– compliance with the SSP final rule, FRA rule while FRA was considering the 0060–0046. believes it appropriate to extend the stay petitions. All Petitions were available In response to draft rule text FRA of the rule an additional six months for public comment in the docket for the presented for discussion during the until March 4, 2020. Extending the stay SSP rulemaking. On , RSAC meeting, the States indicated they should provide FRA adequate time to 2016, the Massachusetts Department of would need an extended caucus to review comments responding to NPRM Transportation (MassDOT) submitted a discuss. On , 2018, the and to issue a final rule in that comment supporting the State Joint Executive Committee of the States for proceeding. Petition, also asking FRA to stay the SSP Passenger Rail Coalition (SPRC) 4 final rule. FRA did not receive any provided, and FRA uploaded to the Regulatory Impact and Notices public comments opposing the States’ rulemaking docket, proposed revisions Executive Orders 12866 and 13771, and requests for a stay. to the draft rule text. See FRA–2011– DOT Regulatory Policies and Procedures On 30, 2017, FRA met with 0060–0050. FRA reviewed and the Passenger Safety Working Group considered these suggested revisions in This final rule is a non-significant and the System Safety Task Group of the formulating its proposed response to the deregulatory action within the meaning Railroad Safety Advisory Committee petitions for reconsideration. of Executive Order 12866 and DOT (RSAC) to discuss the Petitions and On , 2019, FRA published a policies and procedures. See 44 FR comments received in response to the notice of proposed rulemaking (NPRM) 11034 (Feb. 26, 1979). The final rule is Petitions.3 FRA specifically invited its that proposed certain amendments considered an Executive Order 13771 State partners to this meeting, which responding to the petitions for deregulatory action. Details on the was also open to the public. This reconsideration. See 84 FR 27215 (June estimated cost savings are below. 12, 2019). In the NPRM, FRA In August 2016, FRA issued the 1 The labor organizations that filed the joint specifically requested public comment System Safety Program final rule (2016 petition are: The American Train Dispatchers on a proposed stay extension to allow Final Rule) as part of its efforts to Association (ATDA), Brotherhood of Locomotive continuously improve rail safety and to Engineers and Trainmen (BLET), Brotherhood of FRA time to review any comments on Maintenance of Way Employes Division (BMWED), the NPRM and issue a final rule. Id. at satisfy the statutory mandate in sections the Brotherhood of Railroad Signalmen (BRS), 27216. The deadline for submitting 103 and 109 of the Rail Safety Brotherhood Railway Carmen Division (TCU/IAM), written comments on the NPRM was Improvement Act of 2008. The 2016 and Transport Workers Union of America (TWU). Final Rule requires passenger railroads 2 The Capitol Corridor Joint Powers Authority August 12, 2019. (CCJPA), Indiana Department of Transportation FRA received thirteen comments in to establish a program that (INDOT), Northern New England Passenger Rail response to the NPRM.5 Comments from systematically evaluates railroad safety Authority (NNEPRA), and San Joaquin Joint Powers NCDOT, MassDOT, and CTDOT risks and manages those risks with the Authority (SJJPA) filed a joint petition (Joint goal of reducing the number and rates Petition). The North Carolina Department of supported extending the stay, with Transportation (NCDOT) and State of Vermont NCDOT specifically requesting that FRA of railroad accidents, incidents, injuries, Agency of Transportations (VTrans) each filed stay implementation of the rule until and fatalities. Paperwork requirements separate petitions. are the largest burden of the 2016 Final 3 ‘‘all applicable administrative and Attendees at the , 2017, meeting judicial processes are completed.’’ FRA Rule. included representatives from the following FRA believes that this final rule, organizations: ADS System Safety Consulting, LLC; received one comment objecting to American Association of State Highway and extending the stay from Amtrak, which which will stay the requirements of the Transportation Officials (AASHTO); American urged FRA to lift the stay and 2016 Final Rule until March 4, 2020, Public Transportation Association (APTA); will reduce regulatory burden on the American Short Line and Regional Railroad Association (ASLRRA); ATDA; Association of 4 SPRC’s website indicates it is an ‘‘alliance of railroad industry. By staying the American Railroads (AAR); BLET; BMWED; BRS; State and Regional Transportation Officials,’’ and requirements of the 2016 Final Rule, CCJPA; The Fertilizer Institute; Gannett Fleming each State petitioner appears to be an SPRC railroads will realize a cost savings as Transit and Rail Systems; International Brotherhood member. See https://www.s4prc.org/state-programs. railroads will not sustain any costs of Electrical Workers; Metropolitan Transportation 5 Comments were submitted by AAR, Amtrak, Authority (MTA); National Railroad Passenger APTA, CCJPA (jointly with INDOT, Los Angeles- during the first six months of this Corporation (Amtrak); National Transportation San Diego-San Luis Obispo Rail Corridor Agency, analysis. In addition, because this Safety Board (NTSB); NCDOT; NNEPRA; San and SJJPA), the Connecticut Department of analysis discounts future costs and this Joaquin Regional Rail Commission/Altamont Transportation (CTDOT), MassDOT, Massachusetts final rule will move forward all costs by Corridor Express; Sheet Metal, Air, Rail, and Bay Transportation Authority, NCDOT, NNEPRA Transportation Workers (SMART); and United (jointly with the State of Maine Department of six months, the present value costs of States Department of Transportation— Transportation), SPRC, VTrans, Washington this stay will lower the present value Transportation Safety Institute. Department of Transportation, and one individual. cost of the SSP rulemaking. FRA

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estimates this cost savings to be table shows the 2016 Final Rule’s total cost savings from the additional six- approximately $170,618, at a 3-percent cost, delayed an additional six months month implementation date delay. discount rate, and $164,240, at a 7- past the 2019 stay extension, the percent discount rate. The following implementation date total costs, and the

Present Present value (7%) value (3%)

2016 Final Rule, total cost ...... $2,327,223 $3,412,649 Cost savings from six-month delay ...... 164,240 170,618 2016 Final Rule, total cost with cost savings from six-month delay ...... 2,162,983 3,242,031

Regulatory Flexibility Act and Executive forth in 49 CFR 1201.1–1, which is $20 contained in the SSP final rule were Order 13272 million or less in inflation-adjusted approved by OMB on , 2016. The Regulatory Flexibility Act of annual revenues, and commuter The information collection requirements 1980, 5 U.S.C. 601 et seq., and Executive railroads or small governmental thereby became effective when they Order 13272, 67 FR 53461 (Aug. 16, jurisdictions that serve populations of were approved by OMB. The OMB 2002), require agency review of 50,000 or less. See 68 FR 24891 (, approval number is OMB No. 2130– proposed and final rules to assess their 2003), codified at appendix C to 49 CFR 0599, and OMB approval expires on impact on small entities. An agency part 209. The $20-million limit is based , 2019. must prepare an Initial Regulatory on the Surface Transportation Board’s Federalism Implications Flexibility Analysis unless it determines revenue threshold for a Class III Executive Order 13132, ‘‘Federalism’’ and certifies that a rule, if promulgated, railroad. Railroad revenue is adjusted (64 FR 43255, Aug. 10, 1999), requires would not have a significant economic for inflation by applying a revenue FRA to develop an accountable process impact on a substantial number of small deflator formula in accordance with 49 entities. Pursuant to the Regulatory CFR 1201.1–1. FRA is using this to ensure ‘‘meaningful and timely input Flexibility Act of 1980, 5 U.S.C. 605(b), definition for this rulemaking. by State and local officials in the the FRA Administrator certifies that this For purposes of this analysis, this development of regulatory policies that final rule will not have a significant final rule will apply to 31 commuter or have federalism implications.’’ ‘‘Policies economic impact on a substantial other short-haul passenger railroads and that have federalism implications’’ are number of small entities. two intercity passenger railroads, defined in the Executive Order to This final rule will affect passenger Amtrak and the Alaska Railroad include regulations that have railroads, but will have a beneficial Corporation (ARC). Neither is ‘‘substantial direct effects on the States, effect, lessening the burden on any considered a small entity. Amtrak serves on the relationship between the national small railroad. populations well in excess of 50,000, government and the States, or on the ‘‘Small entity’’ is defined in 5 U.S.C. and the ARC is owned by the State of distribution of power and 601 as including a small business Alaska, which has a population well in responsibilities among the various concern that is independently owned excess of 50,000. levels of government.’’ Under Executive and operated, and is not dominant in its Based on the definition of ‘‘small Order 13132, the agency may not issue field of operation. The U.S. Small entity,’’ only one passenger railroad is a regulation with federalism Business Administration (SBA) has considered a small entity: The Hawkeye implications that imposes substantial authority to regulate issues related to Express (operated by the Iowa Northern direct compliance costs and that is not small businesses, and stipulates in its Railway Company). As the final rule is required by statute, unless the Federal size standards that a ‘‘small entity’’ in not significant, this final rule will government provides the funds the railroad industry is a for profit merely provide this entity with necessary to pay the direct compliance ‘‘linehaul railroad’’ that has fewer than additional compliance time without costs incurred by State and local 1,500 employees, a ‘‘short line railroad’’ introducing any additional burden. governments or the agency consults with fewer than 1,500 employees, or a Pursuant to the Regulatory Flexibility with State and local government ‘‘commuter rail system’’ with annual Act, 5 U.S.C. 601(b), the FRA officials early in the process of receipts of less than $15.0 million Administrator hereby certifies that this developing the regulation. Where a dollars. See ‘‘Size Eligibility Provisions final rule will not have a significant regulation has federalism implications and Standards,’’ 13 CFR part 121, economic impact on a substantial and preempts State law, the agency subpart A. Additionally, 5 U.S.C. 601(5) number of small entities. A substantial seeks to consult with State and local defines as ‘‘small entities’’ governments number of small entities may be officials in the process of developing the of cities, counties, towns, townships, impacted by this regulation; however, regulation. villages, school districts, or special any impact will be minimal and This final rule has been analyzed in districts with populations less than positive. accordance with the principles and 50,000. Federal agencies may adopt criteria contained in Executive Order their own size standards for small Paperwork Reduction Act 13132. FRA has determined that this entities, in consultation with SBA and There are no new collection of rule does not have substantial direct in conjunction with public comment. information requirements contained in effects on the States, on the relationship Pursuant to that authority, FRA has this final rule and, in accordance with between the national government and published a final statement of agency the Paperwork Reduction Act of 1995, the States, or on the distribution of policy that formally establishes ‘‘small 44 U.S.C. 3501 et seq., an information power and responsibilities among the entities’’ or ‘‘small businesses’’ as being collection submission to the Office of various levels of government. In railroads, contractors, and hazardous Management and Budget (OMB) is not addition, FRA has determined that this materials shippers that meet the revenue required. The record keeping and rule does not impose substantial direct requirements of a Class III railroad as set reporting requirements already compliance costs on State and local

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governments. Therefore, the of Energy Effects for any ‘‘significant ADDRESSES: A copy of this final rule, consultation and funding requirements energy action.’’ 66 FR 28355 (May 22, published in the Federal Register (FR), of Executive Order 13132 do not apply. 2001). FRA has evaluated this rule in is available for inspection and copying accordance with Executive Order 13211 in the NTSB’s public reading room, Environmental Assessment and has determined that this regulatory located at 490 L’Enfant Plaza SW, FRA has evaluated this rule in action is not a ‘‘significant energy Washington, DC 20594–2003. accordance with its ‘‘Procedures for action’’ within the meaning of Executive Alternatively, a copy is available on the Considering Environmental Impacts’’ Order 13211. government-wide website on regulations (FRA’s Procedures) (64 FR 28545, May Executive Order 13783, ‘‘Promoting at http://www.regulations.gov (Docket 26, 1999) as required by the National Energy Independence and Economic ID Number NTSB–GC–2019–0001). Environmental Policy Act (42 U.S.C. Growth,’’ requires Federal agencies to FOR FURTHER INFORMATION CONTACT: 4321 et seq.), other environmental review regulations to determine whether Kathleen Silbaugh, General Counsel, statutes, Executive Orders, and related they potentially burden the (202) 314–6080 or [email protected]. regulatory requirements. FRA has development or use of domestically SUPPLEMENTARY INFORMATION: determined that this rule is not a major produced energy resources, with FRA action (requiring the preparation of particular attention to oil, natural gas, I. Background an environmental impact statement or coal, and nuclear energy resources. See Currently, the NTSB may impose a environmental assessment) because it is 82 FR 16093 (Mar. 31, 2017). FRA categorically excluded from detailed civil penalty up to $1,617 on a person determined this regulatory action will who violates 49 U.S.C. 1132 (Civil environmental review pursuant to not burden the development or use of section 4(c)(20) of FRA’s Procedures. aircraft accident investigations), 1134(b) domestically produced energy (Inspection, testing, preservation, and See 64 FR 28547, , 1999. resources. In accordance with section 4(c) and moving of aircraft and parts), 1134(f)(1) (e) of FRA’s Procedures, the agency has List of Subjects in 49 CFR Part 270 (Autopsies), or 1136(g) (Prohibited actions when providing assistance to further concluded that no extraordinary Penalties, Railroad safety, Reporting circumstances exist with respect to this families of passengers involved in and recordkeeping requirements, aircraft accidents). 49 CFR 831.15. regulation that might trigger the need for System safety. a more detailed environmental review. The current maximum penalty As a result, FRA finds that this rule is The Rule amount was calculated after the passage not a major Federal action significantly of the Federal Civil Penalties Inflation In consideration of the foregoing, FRA Adjustment Act Improvements Act of affecting the quality of the human extends the stay of the SSP final rule environment. 2015 (the 2015 Act), which required published August 12, 2016 (81 FR agencies to: (1) Adjust the level of civil Unfunded Mandates Reform Act of 1995 53850) until March 4, 2020. monetary penalties with an initial Pursuant to section 201 of the Authority: 49 U.S.C. 20103, 20106–20107, ‘‘catch-up’’ adjustment through an Unfunded Mandates Reform Act of 1995 20118–20119, 20156, 21301, 21304, 21311; interim final rulemaking (IFR); and (2) 28 U.S.C. 2461, note; and 49 CFR 1.89. (Pub. L. 104–4, 2 U.S.C. 1531), each make subsequent annual adjustment for Federal agency shall, unless otherwise Issued in Washington, DC. inflation by January 15th every year. prohibited by law, assess the effects of Ronald Louis Batory, OMB, M–16–06, Implementation of the Federal regulatory actions on State, Administrator. Federal Civil Penalties Inflation local, and tribal governments, and the [FR Doc. 2019–18789 Filed 8–29–19; 8:45 am] Adjustment Act Improvements Act of private sector (other than to the extent BILLING CODE 4910–06–P 2015 (Feb. 24, 2016). that such regulations incorporate At the time of the 2015 Act, the requirements specifically set forth in maximum civil penalty amount had been $1,000. 49 U.S.C. 1155. Pursuant to law). Section 202 of the Act (2 U.S.C. NATIONAL TRANSPORTATION the 2015 Act, the NTSB issued an IFR 1532) further requires that before SAFETY BOARD promulgating any general notice of on , 2017 that calculated the proposed rulemaking that is likely to 49 CFR Part 831 agency’s catch-up adjustment and its result in the promulgation of any rule 2017 annual inflation adjustment. Civil that includes any Federal mandate that [Docket No.: NTSB–GC–2019–0001] Monetary Catch Up Inflation Adjustment and Annual Inflation may result in expenditure by State, RIN 3147–AA21 local, and tribal governments, in the Adjustment, 82 FR 47401 (Oct. 12, aggregate, or by the private sector, of Civil Monetary Penalty Annual Inflation 2017). The catch-up adjustment $100,000,000 or more (adjusted Adjustment increased the original maximum penalty annually for inflation) in any 1 year, and from $1,000 to $1,591. And the 2017 before promulgating any final rule for AGENCY: National Transportation Safety annual adjustment increased the which a general notice of proposed Board (NTSB). maximum civil penalty from $1,591 to rulemaking was published, the agency ACTION: Final rule. $1,617. While the IFR stated that the shall prepare a written statement maximum civil penalty would be detailing the effect on State, local, and SUMMARY: Pursuant to the Federal Civil adjusted for inflation by , tribal governments and the private Penalties Inflation Adjustment Act 2018, the agency did not publish sector. This final rule will not result in Improvements Act of 2015, this final subsequent annual inflation such an expenditure, and thus rule provides the 2018 and 2019 adjustments. preparation of such a statement is not adjustments to the civil penalties that The Office of Management and Budget required. the NTSB may assess against a person (OMB) has since published updated for violating certain NTSB statutes and guidance for Fiscal Years 2018 and Energy Impact regulations. 2019. OMB, M–19–04, Implementation Executive Order 13211 requires DATES: This final rule is effective on of Penalty Inflation Adjustments for Federal agencies to prepare a Statement August 30, 2019. 2019, Pursuant to the Federal Civil

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