Federal Register Vol. 80, No.214,

This final rule is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This final rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including table grapes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866, 13563, and 13175.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This final rule partially relaxes the one-quarter pound minimum bunch size requirement in the order's regulations and the import regulation for all U.S. No. 1 Table grade grapes packed in clamshell consumer packages weighing five pounds or less. Under the revision, up to 20 percent of the weight of such containers could consist of single grape clusters weighing less than one-quarter pound, but consisting of at least five berries each. This final rule provides California desert grape handlers and importers with the flexibility to respond to an ongoing marketing opportunity. The Committee met on November 5, 2013, and conducted an electronic vote on April 8, 2014, in which voters unanimously recommended the partial relaxation for California desert grapes. The change in the import regulation is required under section 8e of the Act.

Section 925.52(a)(1) of the order provides authority to regulate the handling of any grade, size, quality, maturity, or pack of any and all varieties of grapes during the season. Section 925.53 provides authority for the Committee to recommend to USDA changes to regulations issued pursuant to § 925.52. Section 925.55 specifies that when grapes are regulated pursuant to § 925.52, such grapes must be inspected by the Federal or Federal-State Inspection Service (FSIS) to ensure they meet applicable requirements.

Section 925.304(a) of the order's rules and regulations requires grapes to meet the minimum grade and size requirements of U.S. No. 1 Table; or to meet all the requirements of U.S. No. 1 Institutional, except that a tolerance of 33 percent is provided for off-size bunches. The requirements for the U.S. No. 1 Table and U.S. No. 1 Institutional grades are set forth in the United States Standards for Grades of Table Grapes (European or Vinifera Type) (7 CFR 51.880 through 51.914) (Standards). To meet the requirements of U.S. No. 1 Table grade, grapes must have a bunch size of at least one-quarter pound.

In 2010, the order's regulations were relaxed with respect to the bunch size requirement specified in the Standards (See, 75 FR 17031, affirmed at 75 FR 34343). This change permitted the use of bunch sizes smaller than one-quarter pound, but with at least five berries each, in packing consumer clamshell containers containing two pounds net weight or less. Not more than 20 percent of the weight of such containers could consist of these smaller bunches. This relaxation was made to allow handlers to take advantage of a new marketing opportunity for grapes packed in small clamshell containers. Prior to the relaxation, handlers were experiencing difficulty filling these containers properly with bunches weighing one-quarter pound or more; smaller bunches were needed to fill the corners of the square container configuration to achieve the desired weight.

Since the order's regulations were amended in 2010, customers nationwide have been increasingly requesting grapes in larger clamshell containers. Handlers experience difficulty properly filling the corners of these larger containers to the desired weights with bunches weighing one-quarter pound or more, similar to the problem they experienced with the smaller 2-pound clamshell containers. Therefore, the Committee recommended that the bunch size requirement in the order's regulations pertaining to U.S. No. 1 Table grade grapes be partially relaxed with respect to clamshell containers weighing 5 pounds or less. Under this action, up to 20 percent of the weight of such containers may consist of single grape clusters weighing less than one-quarter pound, but with at least five berries each. This action allows handlers to continue to respond to increased marketing opportunities. Section 925.304(a) is revised accordingly.

Under section 8e of the Act, minimum grade, size, quality, and maturity requirements for table grapes imported into the United States are established under Table Grape Import Regulation 4 (7 CFR 944.503) (import regulation). This relaxation in the California Desert Grape Regulation 6 minimum bunch size requirement requires a corresponding relaxation to the minimum bunch size requirement for imported table grapes. Similar to the domestic industry, this action allows importers the flexibility to respond to an ongoing marketing opportunity to meet consumer needs. Section 944.503(a)(1) is revised accordingly.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 14 handlers of southeastern California grapes who are subject to regulation under the marketing order and about 41 grape producers in the production area. In addition, there are about 102 importers of grapes. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000 (13 CFR 121.201). Ten of the 14 handlers subject to regulation have annual grape sales of less than $7,000,000, according to USDA Market News Service and Committee data. Based on information from the Committee and USDA's Market News Service, it is estimated that at least 10 of the 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of grape handlers regulated under the order and about ten of the producers could be classified as small entities under the SBA definitions.

Mexico, Chile, and Peru are the major countries that export table grapes to the United States. According to 2014 data from USDA's Foreign Agricultural Service (FAS), shipments of table grapes imported into the United States from Mexico totaled 17,042,386 18-pound lugs, from Chile totaled 38,466,540 18-pound lugs, and from Peru totaled 5,065,653 18-pound lugs. According to FAS data, the total value of table grapes imported into the United States in 2014 was $1,189,848,000. It is estimated that the average importer received $11.7 million in revenue from the sale of table grapes in 2014. Based on this information, it may be concluded that the average table grape importer is not classified as a small entity.

This final rule revises § 925.304(a) of the rules and regulations of the California desert grape order and § 944.503(a)(1) of the table grape import regulation. This final rule partially relaxes the one-quarter pound minimum bunch size requirement in the order's regulations and the import regulation for U.S. No. 1 Table grade grapes packed in consumer clamshell packages weighing five pounds or less. Under the relaxation, up to 20 percent of the weight of each package may consist of single grape clusters weighing less than one-quarter pound, but with at least five berries each. Authority for the change to the California desert grape rules and regulations is provided in §§ 925.52(a)(1) and 925.53. Authority for the change to the table grape import regulation is provided in section 8e of the Act.

There is general agreement in the industry for the need to expand the revised minimum bunch size requirement for grapes packed in these consumer clamshell packages to allow for more packaging options.

Regarding the impact of this final rule on affected entities, this rule provides both California desert grape handlers and importers the flexibility to continue to respond to an ongoing marketing opportunity to meet consumer needs. This marketing opportunity initially existed in the 2009 season, and the minimum bunch size regulations were revised for certain packages weighing two pounds or less on a test basis. In 2010, the regulation was revised permanently for consumer clamshell packages weighing two pounds or less due to the positive market response. This rule expands the revised requirements to include larger consumer clamshell packages weighing 5 pounds or less. Customers have been requesting larger sized clamshell packages, and this action enables handlers and importers to take advantage of increased market opportunities, which may result in increased shipments of consumer grape packages. This is expected to have a positive impact on producers, handlers, and importers.

No additional alternatives were considered because the 2010 revision produced the desired results. The Committee believes the partial relaxation of the bunch size requirement for grapes packed in larger consumer clamshell packages is appropriate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule does not impose any additional reporting or recordkeeping requirements on either small or large grape handlers or importers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, the Committee's meeting was widely publicized throughout the Southeastern California grape industry, and all interested persons in the production area were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the November 5, 2013, meeting was a public meeting; and all entities, both large and small, were able to express their views on this issue.

A proposed rule concerning this action was published in the Federal Register on March 3, 2015 (80 FR 11346). Copies of the rule were mailed or sent via facsimile to all Committee members and table grape handlers in the production area. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period, ending on April 2, 2015, was provided to allow interested persons to respond to the proposal.

Twelve comments were received during the comment period in response to the proposal. Nine strongly supported the partial relaxation of the handling requirements and three comments were opposed.

One commenter who opposed the partial relaxation specifically for 5-pound clamshells or smaller stated that all consumer packages should be regulated similarly. This commenter also stated that if one clamshell container exceeds the 20 percent tolerance for small bunches, the entire lot is out of grade. The commenter indicated this has caused a problem for him in the past with 2-pound clamshell containers. The commenter also expressed concern that different grape quality standards are in effect at the same time. Finally, this commenter stated that he had not received notification of the November 5, 2013, meeting.

In response to these comments, it is noted that the relaxed bunch size requirements do not apply to all consumer packages. As indicated in the proposed rule, the Committee's recommendation was specific to clamshell containers because smaller clusters of grapes are needed to fill the corners of these square containers. This aspect of the rule and its rationale is identical to the previous regulation that applied to 2-pound containers. Similar issues regarding other consumer containers were not reported or discussed by the Committee when it recommended this change. However, since this rule was initially recommended, the Committee has indicated that additional options may be considered and recommended in the future if appropriate rationale and justification are presented and evaluated.

Regarding the comment concerning the bunch size tolerance, it is acknowledged that one failing container may cause the entire lot to be out of grade. However, it should be noted that the tolerance allows 20 percent of the weight of the container to contain bunches of grapes smaller than one-quarter pound, but consisting of at least five berries. This is an allowance, not a requirement. Handlers are not required to use any clusters smaller than one-quarter pound to fill the containers. The relaxed tolerance merely provides handlers with the option and flexibility to utilize the smaller clusters to fill out the clamshell corners. Handlers choosing to utilize this practice should be able to fill the container's corners and fall within the 20 percent tolerance.

Regarding the comment concerning different standards for grapes in the market at the same time, the marketing order only regulates grapes grown in Southeastern California. Thus, the order's regulations have no control over grapes from other areas. This rule is not intended to affect the overall quality of grapes in the marketplace. There is only one marketing order for table grapes. It is intended to allow Southeastern California grape handlers to meet the needs of their customers. Furthermore, industry experience following the previous revision for 2-pound clamshell containers, which is similar to this change, has been positive.

In response to the comment that notification of the November 5, 2013, meeting had not been received, it should be noted that the Committee routinely announces all upcoming meetings at least 3 days before they occur. These announcements are issued to all growers and handlers in the production area. Further, the commenter acknowledged awareness of the open comment period as published in the March 3, 2015, Federal Register notice, and his comment was received in a timely manner and is being addressed herein.

Another commenter who opposed the rule believes that this partial relaxation will allow inferior grapes to be packed and is a visual misrepresentation to both the retailer and the consumer.

This action was recommended by the Committee in response to customer complaints about the empty corners of the larger clamshells. While the tolerance for bunch size will be increased for grapes packed in clamshells containers weighing five pounds or less, all other requirements of U.S. No. 1 Table, as set forth in the U.S. Standards for Grades of Table Grapes, will still apply. Thus, the increased tolerance is not expected to affect the overall quality of the grapes in the marketplace. The change is intended to provide the industry with increased flexibility to meet customers' needs.

The last commenter suggested that the math in calculating the acceptable tolerance of the one-quarter pound bunch minimum requirement for 5-pound clamshell containers is incorrect and offered various other weight combinations to meet the 5-pound weight requirement of an individual container. He also asserted that the current minimum bunch size requirement for U.S. No. 1 Table Grade grapes is 1.25 pounds. Finally, this commenter claimed that quality will be sacrificed by allowing 20 percent of the 5-pound containers to consist of loose grapes. These assertions are incorrect. The rationale for this rule is not based on a mathematical calculation of grape bunch sizes that could be used to fill containers. The rationale is to allow use of bunches smaller than one-quarter pound but consisting of at least five berries to properly fill the corners of the square containers. Furthermore, the assertion that the bunch size requirement for U.S. No. 1 Table Grade grapes is 1.25 pounds is not accurate. The bunch size requirement for U.S. No. 1 Table Grade grapes is one-quarter pound. This rule provides for up to 20 percent of the weight of clamshell containers to contain grape clusters weighing less than one-quarter pound, but the clusters must consist of at least five berries each.

Finally, this rule does not allow 20 percent of the 5-pound container to consist of loose grapes. Loose grapes are not permitted by this relaxation. The 20 percent tolerance is given to limit the number of bunches weighing less than one-quarter pound and each must still contain at least five attached berries. As previously stated, this change is not expected to affect the overall quality of grapes in the marketplace as all of the other requirements of U.S. No. 1 Table grade, as set forth in the U.S. Standards for Grades of Table Grapes, will still apply.

A similar requirement has been in place under the marketing order since 2010 for clamshell containers weighing two pounds or less, and the industry has received positive responses from customers. Since that time, the popularity of clamshell containers has increased, and larger sized clamshell containers are now being used for packaging grapes due to customer's demands.

This action simply applies the same requirements to larger clamshell containers, as desired by customers.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule.

For the reasons set forth in the preamble, 7 CFR parts 925 and 944 are amended as follows:

This rule is issued under Marketing Order No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the exemption provisions prescribed under the order. This rule expands the availability of diversion credits for new market development and market expansion activities from one year to three years. This rule also revises the composition of the subcommittee which reviews exemption requests. These changes are intended to encourage the use of new market developments and market expansion activities to facilitate sales and to help ensure impartiality during the review process. These changes were unanimously recommended by the Board at its meeting on June 25, 2015.

Section 930.59 of the order authorizes handler diversion. When volume regulation is in effect, handlers may fulfill any restricted percentage requirement in full or in part by acquiring diversion certificates or by voluntarily diverting cherries or cherry products in a program approved by the Board, rather than placing cherries in an inventory reserve.

Section 930.159 of the order's administrative rules specifies methods of handler diversion, including using cherries or cherry products for exempt purposes prescribed under § 930.162. Section 930.162 establishes the terms and conditions of exemption that must be satisfied for handlers to receive diversion certificates for exempt uses. Section 930.162(b) defines the activities which qualify for exemptions under new market development and market expansion and the period for which they are eligible for diversion credit. New market development and market expansion activities include, but are not limited to, sales of cherries into markets that are not yet commercially established, product line extensions, or segmentation of markets along geographic or other definable characteristics.

Section 930.162(d) establishes a Board-appointed subcommittee to review the applications for exemption or renewal of exemption and to either approve or deny the exemption. This section currently specifies that the subcommittee consist of three members, including the Board manager, or a Board member acting in the manager's stead, the public member, and one industry person who is not on the Board.

The order provides for the use of volume regulation to stabilize prices and improve grower returns during periods of oversupply. At the beginning of each season, the Board examines production and sales data to determine whether a volume regulation is necessary and if so, announces free and restricted percentages to limit the volume of tart cherries on the market. Free percentage cherries can be used to supply any available market, including domestic markets for pie filling, water packed, and frozen tart cherries. Restricted percentage cherries can be placed in reserve, or be used to earn diversion credits as prescribed in §§ 930.159 and 930.162 of the order's administrative rules. These activities include, in part, the development of new products, new market development and market expansion, the development of export markets, and charitable contributions.

In 2012, the Board made a series of changes to the volume control provisions to facilitate the marketing of tart cherries and to help lower restrictions during seasons when volume control is implemented. One of these changes was to decrease the number of years that new market development and market expansion projects are eligible for handler diversion credit from three years to one year. The Board thought this decrease would continue to encourage new market development and market expansion projects, while reducing the impact these credits had on volume restriction calculations. At that time, these sales were not included in the average sales figure used to determine optimum supply for volume regulation. The Board anticipated the change would shift more volume to sales helping to reduce the calculated surplus and lower the restricted percentage.

In revisiting this change, the Board recognized that the underlying rationale for having reduced the duration of diversion credit for new market development and market expansion was no longer an issue. Since that change, the method for calculating average sales for the purpose of volume regulation has been adjusted so that only export sales are excluded from the average sales calculation. Consequently, all sales from market development and market expansion activities are now included as sales when calculating a restriction. Therefore, increasing the number of years new market development and market expansion projects are eligible to receive diversion credit from one year to three years will not significantly impact the calculations for free and restricted percentages.

Further, since making this change, participation in new market development and market expansion activities has dropped dramatically. In years prior to changing from three years to one year, applications for new market activities numbered around 20 to 25 a season. For the 2014-15 season, the first season with volume regulation since the change, applications dropped to eight. Handlers stated that it was not worth the time and effort to develop one of these projects if the benefit was only for a single year. It was reported that the shortened time frame did not allow handlers to recoup the resources needed to establish one of these projects.

The Board affirmed its support for new market development and market expansion diversion credit programs. Accordingly, the Board voted unanimously to change the exemption provisions applicable to handler diversion activities by increasing the number of years that new market development and market expansion activities are eligible for diversion credit back to three years. The Board also noted that projects approved for the 2014-15 season would be allowed to continue and be subject to the new three-year cycle.

This action also revises the composition of the subcommittee appointed to review exemption applications. The subcommittee was formed to assist Board staff members in reviewing and granting exemptions. The subcommittee reviews applications to use restricted cherries for activities related to new product development, new market development and market expansion, the development of export markets, and for experimental purposes. Current rule provisions (§ 930.162(d))state that the subcommittee consists of the manager of the Board or a Board member acting in their stead, the public member, and one industry member who is not on the Board. The Board recommended changing the composition of the subcommittee to help ensure impartiality so that no one affiliated with a handler was part of the review process.

Consequently, the Board recommended revising the subcommittee to consist of three members all of whom are not affiliated with a handler, but have industry knowledge. One of these members shall be the public member or the alternate public member, if available to serve. The subcommittee will also include a similarly qualified alternate should one of the other members be unable to serve.

The Board made several other recommendations for changes to the regulations under the order at its June 25, 2015 meeting. However, these changes will be considered under a separate action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those having annual receipts of less than $7,000,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service and Board data, the average annual grower price for tart cherries during the 2013-14 season was $0.35 per pound, and total shipments were around 289 million pounds. Therefore, average receipts for tart cherry producers were around $168,600, well below the SBA threshold for small producers. In 2014, The Food Institute estimated an f.o.b. price of $0.96 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Using this data, average annual handler receipts were about $6.9 million, which is also below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This rule revises § 930.162 of the regulations regarding exemptions by changing the number of years that new market development and market expansion projects are eligible for handler diversion credit from one year to three years. This rule also revises the composition of the subcommittee which reviews exemption requests. These changes are intended to encourage the use of new market development and market expansion activities to facilitate sales and to help ensure impartiality during the review process. The authority for these actions is provided in § 930.59 of the order. These changes were unanimously recommended by the Board at its meeting on June 25, 2015.

It is not anticipated that this action will impose additional costs on handlers or growers, regardless of size. Rather, this should help handlers receive better returns on their new market development and market expansion projects by providing additional time for the handlers to receive diversion credit for those activities. This should provide more opportunity for them to recoup the time and resources required to establish these projects. In addition, changing the number of years that these projects are eligible for diversion credits may provide additional incentive for handlers to develop these programs, and may facilitate additional sales which could improve returns for growers and handlers. Further, the Board does not believe that this change significantly impacts the calculations for free and restricted percentages.

The change in composition of the subcommittee is administrative in nature, and not expected to result in any additional costs.

This rule is expected to benefit the industry. The effects of this rule are not expected to be disproportionately greater or less for small handlers or producers than for larger entities.

The Board discussed alternatives to these changes, including not changing the number of years that new market development and market expansion projects were eligible for diversion credit. The Board agreed that increasing the number of years that new market development and market expansion projects were eligible for diversion credit from one year to three years provides handlers with more incentive to utilize these programs, while not impacting the calculations for free and restricted percentages. Another alternative considered was maintaining the current composition of the subcommittee responsible for reviewing exemption requests. However, the Board wanted to specify that the subcommittee be composed of members who are not affiliated with any handler. Therefore, for the reasons mentioned above, these alternatives were rejected.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0177, (Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

Accordingly, this rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend and participate in Board deliberations on all issues. Like all Board meetings, the June 25, 2015, meeting was a public meeting and all entities, both large and small, were able to express views on these issues. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutney at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on changes to the exemption requirements currently prescribed under the order. Any comments received will be considered prior to the finalization of this rule.

After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The Board would like this in in place as soon as possible should volume regulation be recommended for this season so handlers can consider these changes when making plans; (2) the Board unanimously recommended these changes at a public meeting and interested parties had an opportunity to provide input; and (3) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:

I. Objective

The objective of this final rule is to reflect changes to the FCA's organization and identification of those FCA employees responsible for various functions. The Freedom of Information Act, 5 U.S.C. 552, requires, in part, that each Federal agency publish in the Federal Register for the guidance of the public a description of its organization structure. Another amendment updates the statutory citation for the Farm Credit Act of 1971, as amended (Act).

We revise the regulations by:

(1) In § 600.1, adding a citation for the Food, Conservation, and Energy Act of 2008, Public Law 110-246, June 18, 2008, (section 5401-5407), which revised the statutory citation for the Act.

(2) In § 600.4:

(a) Including the Office of the Chief Operating Officer, Office of Information Technology, Designated Agency Ethics Official, and Equal Employment Opportunity and Inclusion in FCA's organizational structure and a description of their functions; and

(b) Amending the responsibilities of the Office of Management Services to remove the function of administering FCA's information resources management program;

(3) In § 606.670, removing from paragraph (i) the words “Director, Equal Employment Opportunity” and adding in their place the words “Equal Employment Opportunity and Inclusion Director”.

We have determined that the amendments involve Agency management and personnel and other minor technical changes.

Therefore, the amendments do not constitute a rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. 551, 553(a)(2). Under the APA, the public may participate in the promulgation of rules that have a substantial impact on the public. The amendments to our regulations relate to Agency management and personnel and a minor technical change only and have no direct impact on the public and, therefore, do not require public participation.

Even if these amendments were a rulemaking under 5 U.S.C. 551, 553(a)(2) of the APA, we have determined that notice and public comment are unnecessary and contrary to the public interest. Under 5 U.S.C. 553(b)(A) and (B) of the APA, an agency may publish regulations in final form when they involve matters of agency organization or where the agency for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. As discussed above, this amendment results from recent office reorganizations. Because the amendments will provide accurate and current information on the organization of the FCA and update the citation to the Act, it would be contrary to the public interest to delay amending the regulations.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), FCA hereby certifies that the final rule will not have a significant economic impact on a substantial number of small entities. Each of the banks in the Farm Credit System (System), considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

As stated in the preamble, parts 600 and 606 of chapter VI, title 12 of the Code of Federal Regulations are amended as follows:

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0191, dated September 22, 2015 (correction September 25, 2015) (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 series airplanes. The MCAI states:

Required actions include revising the After Start Normal Procedures section of the AFM to provide procedures that will address this loss of redundancy. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4211.

Airbus has issued A318/A319/A320/A321 Temporary Revision TR572, Issue 1.0, dated August 13, 2015, to the Airbus A318/A319/A320/A321 Airplane Flight Manual. The service information describes the reset of SEC 1 and SEC 2 that must be done after engines start. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because a SEC failure in conjunction with a loss of THS electrical control due to jamming or rupture, could result in failure of an elevator and aileron computer, and consequent loss of elevator control and reduced control of the airplane. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-4211; Directorate Identifier 2015-NM-150-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 959 airplanes of U.S. registry.

We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $81,515, or $85 per product.

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

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

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188 series airplanes. The NPRM published in the Federal Register on May 28, 2015 (80 FR 30391). The NPRM was prompted by an evaluation by the DAH indicating that a certain circumferential fuselage splice is subject to WFD. The NPRM proposed to require an inspection for corrosion and previous repairs, severed stringers, cracking, and loose or distressed fasteners of the forward and aft ends of the stringer splices of certain stringers, inspection for cracking and modification of certain fastener holes common to the stringer and splice member at the forward and aft ends of the splice, and related investigative and corrective actions if necessary. We are issuing this AD to prevent loss of residual strength of a certain circumferential fuselage splice, which could lead to rapid decompression of the cabin and potential loss of the airplane.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 30391, May 28, 2015) or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (80 FR 30391, May 28, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 30391, May 28, 2015).

We reviewed Lockheed Martin Electra Service Bulletin 88/SB-722, dated April 30, 2014. This service bulletin describes procedures for doing the following actions:

• A general visual inspection (GVI) for corrosion and previous repairs, severed stringers, cracking, and loose or distressed fasteners of the forward and aft ends of the stringer splices of stringers 1-7 and 66-72, and corrective actions if necessary.

• At stringers 1-7 and 66-72, removing the four rivets common to the stringer and splice member at the forward and aft ends of the splice and doing a bolt hole eddy current (BHEC) inspection or an equivalent inspection procedure for cracking in each of the fastener holes, and corrective actions if necessary.

• Corrective actions for cracked holes include reaming to the maximum permissible hole diameter of the next larger size rivet. If a crack indication remains after reaming, this service information specifies repairing the cracked stringer.

• If a severed stringer is found during the GVI, doing related investigative actions of an eddy current surface scan inspection for cracking of the fuselage skin at the skin-to-stringer attachments immediately forward and aft of the stringer break and confirming skin cracks with a dye penetrant inspection. Corrective actions include repairing the severed stringer or skin cracks.

• For holes without crack indications, other specified actions include modifying the fastener holes by reaming to a certain maximum permissible hole diameter of the same size rivet and installing replacement fasteners; or if the original hole is larger than the maximum permissible diameter, installing the next rivet size and type.

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

We estimate that this AD affects 4 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A318, A319, and A320 series airplanes. The NPRM published in the Federal Register on March 5, 2015 (80 FR 11964).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0141, dated June 4, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, and A320 series airplanes. The MCAI states:

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 11964, March 5, 2015) and the FAA's response to each comment.

Delta Airlines (DAL) requested that paragraph (g) of the proposed AD (80 FR 11964, March 5, 2015) be revised so the initial compliance time for replacing the MLG upper cardan is extended and corresponds to that of European Aviation Safety Agency (EASA) AD 2014-0141, dated June 4, 2014. EASA AD 2014-0141 specifies an initial compliance time of “within 3 months” after the effective date of that EASA AD and the proposed AD specified an initial compliance time of prior to the applicable life limit specified in paragraphs (g)(1) through (g)(5), or within 30 days after the effective date of the AD, whichever occurs later.

We agree with the commenter's request. In consideration of the average utilization rate of affected U.S. operators, the practical aspects of an orderly modification of the U.S. fleet during regular maintenance periods, and the availability of required modification parts, we have determined that a 3 month initial compliance time is appropriate for replacing the MLG upper cardan. We have changed paragraph (g) of this AD accordingly.

Lufthansa Technik requested that the part number for the next higher assembly of MLG cardan part number (P/N) 201163620 be referenced in the NPRM (80 FR 11964, March 5, 2015). The commenter stated that the NPRM and corresponding EASA AD 2014-0141, dated June 4, 2014, reference P/N 201163620, but that part number is not identified in the aircraft illustrated parts catalog (AIPC). The commenter is concerned that if operators only look in the AIPC to see if P/N 201163620 is identified, and it is not there, they may falsely think that their airplanes would not be affected by the NPRM.

We do not agree with the commenter's request. Although MLG cardan P/N 201163620 is not included in the AIPC, it is identified in Airbus A318/A319/A320/A321 ALS Part 1—Safe Life Airworthiness Limitation Items, which is part of the approved type design for these airplanes. Therefore, we have not changed this AD in this regard.

In paragraph (j) of the proposed AD (NPRM (80 FR 11964, March 5, 2015), we referred to applicable life limits in paragraphs (g)(1) through (g)(5) of the proposed AD. For airplanes other than those identified paragraphs (g)(1) through (g)(5) of the proposed AD, the life limit is in Airbus A318/A319/A320/A321 ALS Part 1—Safe Life Airworthiness Limitation, Revision 02, dated May 13, 2011, as specified in paragraph (h)(5) of this AD. In addition, if a part is transferred between airplanes, operators must adjust the life limit using the method specified in Airbus A318/A319/A320/A321 ALS Part 1—Safe Life Airworthiness Limitation, Revision 02, dated May 13, 2011, as specified in paragraph (h)(3) of this AD. We have clarified paragraph (j) of this AD by also referring to paragraphs (h)(3) and (h)(5) of this AD.

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 11964, March 5, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 11964, March 5, 2015).

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

Airbus has issued A318/A319/A320/A321 ALS Part 1—Safe Life Airworthiness Limitation Items, Revision 02, dated May 13, 2011. This document provides revised instructions and life limits for airworthiness limitations items. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD affects 851 airplanes of U.S. registry.

We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $72,335, or $85 per product.

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

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

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0244; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on September 23, 2014 (79 FR 56682). The NPRM was prompted by reports of missing plugs found prior to airplane delivery, during manufacturing inspections, at various locations in certain stringers of the lower lobe cargo compartments. The NPRM proposed to require drilling a hole and installing and bonding plugs in certain stringers of the lower lobe cargo compartments. We are issuing this AD to detect and correct missing or misaligned plugs which, in the event of a fire, could cause an increased rate of loss of Halon in the lower cargo compartments, and result in the inability to extinguish a fire and consequent loss of control of the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 56682, September 23, 2014) and the FAA's response to each comment.

United Airlines stated that it concurs with the NPRM (79 FR 56682, September 23, 2014), and agrees that the detection and correction of the missing or misaligned plugs will maintain a higher level of safety.

All Nippon Airways (ANA) asked that we delay issuance of the NPRM (79 FR 56682, September 23, 2014) until Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 001, dated May 15, 2014 (referred to as the appropriate source of service information for accomplishing the specified actions), can be revised. ANA noted that the service information specifies using a stringer plug removal/installation tool, having tool number (T/N) MIT140Z4372-3; however, this tool does not work well for doing the actions. ANA provided the following reasons to substantiate its request:

• For the instructions specified in Task 1 of this service information, the connecting tube on the tool (T/N 140Z4372-8/-15) interferes with the fasteners at the section 41/43 joint; therefore, the tool cannot be inserted into the stringers. The connecting tube needs to be shortened in length and trimmed to taper.

• For the instructions specified in Task 3 of the service information, the tool (T/N 140Z4372-3) cannot be inserted at stringers 30R through 35R, adjacent to the cargo door, because it won't bend at the location adjacent to the stringer end and frame.

• For the instructions specified in Task 3 of the service information, the tool (T/N 140Z4372-3) is inserted into the stringer from station (STA) 1593 to STA 1209, and the stringer length is 384 inches. This tool has five extension rods that are 300 inches, and six extension rods that are 350 inches, respectively; therefore, additional rods are necessary.

• The tool (T/N 140Z4372-3) has a head piece (T/N 140Z4372-4/-5) and a push rod (T/N 140Z4372-6/-14) with a retaining pin hole. However, the retaining pin is not centered on the push rod and head piece, so the head piece detaches from the push rod during the plug removal/installation, and it takes an extraordinary amount of time to remove the head piece from the stringer. The retaining pin should be centered on the push rod and head piece in order to alleviate these issues.

Boeing has issued Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. This service information provides clarification to the instructions, which addresses the commenter's concerns. In addition, the stringer plug removal/installation tool, having T/N MIT140Z4372-3, has been redesigned and retains the same part number. We have revised paragraphs (c) and (g) of this AD to refer to Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. We have also added new paragraph (h) to this AD to give credit for actions performed before the effective date of this AD using Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 001, dated May 15, 2014.

ANA asked that we allow using an alternate stringer plug removal/installation tool, fabricated by ANA, and include the tool in the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 001, dated May 15, 2014, when the service information is revised. ANA added that, due to the issues previously identified, it has been using this alternate stringer plug removal/installation tool to remove existing plugs and install new plugs, with concurrence from Boeing.

We acknowledge the commenter's request to allow its fabricated tool to be included in the service information instructions. However, as noted previously, Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015, has been issued; and the stringer plug removal/installation tool, having T/N MIT140Z4372-3, has been redesigned and retains the same part number. We have not changed this AD in this regard.

ANA asked that we add certain instructions to the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 001, dated May 15, 2014. ANA provided the following reasons to substantiate its request:

• For the instructions specified in Task 1, steps 2 and 3, of the service information, it specifies drilling a hole on stringers S-34L and S-35L. Removal of the environmental control system (ECS) cargo air insulated riser duct is necessary to ensure workspace for drilling at S-34L and S-35L. ANA asked that these removal and installation instructions be added when the service information is revised.

• For the instructions specified in Task 2, step 3, of the service information, it specifies bonding new plugs in the stringers; however, the stringer and duct installed at the aft face of STA 825 frame web are adjacent to the stringer, so it is not possible to apply a resin through the moisture vent hole. Additionally, the tie-up for supporting the duct should be cut and removed. ANA asked that instructions be added to cut the tie-up and move the duct if the access conditions identified in the service information are insufficient.

Boeing has issued Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. This service information provides clarification to the instructions identified, which addresses the commenter's concerns. We have not changed this AD in this regard.

ANA also stated that each task in the service information necessitates confirmation that using a Sharpie marker, or similar, to mark the centerline of the top surface of the new plug to help locate the plug at the position of a stringer vent hole is permitted. However, ANA found that the plug had rotated to 90 degrees; but the centerline of the top surface of the new plug was at the position of a stringer vent hole. ANA asked that instructions be added to the service information specifying that after plug installation operators should verify the new plug location is correct with a mirror or borescope.

We acknowledge the commenter's concerns. Boeing has incorporated instructions into Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015, which allow the use of a mirror or borescope to check the proper positioning of a plug before applying the bond. We have not changed this AD in this regard.

ANA also stated that the instructions specified in Task 1, Note 9, of the service information, specify using a 3-step drill process. The first step is to drill a new pilot hole of 1/8 inch; the second step is to drill a new pilot hole of 3/16 inch; and the third step is to ream to a final diameter of 0.235 to 0.265 inch. Step 2.3 is required for compliance (RC), so no deviation of the procedure is permitted. ANA added that to maintain the 3-step drill process, a special reamer is needed. ANA noted that the primary objective should be preparing the final diameter hole, not the number of drilling steps, and asked that the 3-step drill process be removed, and more steps to the drill process be allowed.

We agree that alternative methods may be allowed for drilling the hole specified in Task 1, Note 9, because the intent of the 3-step drill process is to effectively ream each hole to its final diameter. Boeing has incorporated instructions allowing additional drill steps outside of the 3-step drill process in Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. We have not changed this AD in this regard.

Boeing asked that we clarify the reason for the unsafe condition identified in the SUMMARY and Discussion sections of the NPRM (79 FR 56682, September 23, 2014), and paragraph (e) of the proposed AD. Boeing stated that the language “reports of missing bonded plugs” should be “reports of missing plugs.” Boeing noted that bonding the plugs into the stringers is the solution, not the issue. Boeing also stated that the language “certain stringers of the forward electrical equipment (EE) bay of the lower lobe cargo compartments” should be “certain stringers of the lower lobe cargo compartments.” Boeing noted that the issue occurred in both the forward and aft cargo bilge areas, not just the forward compartment, and added that referencing the forward EE bay is not relevant to the issue.

Boeing also asked that we clarify the description of the unsafe condition identified in the SUMMARY and Discussion sections of the NPRM (79 FR 56682, September 23, 2014), and paragraph (e) of the proposed AD. Boeing stated that the language “reports of misaligned bonded plugs” should be “misaligned plugs.” Boeing noted that bonding the plugs into the stringers is the solution, not the issue.

In addition, Boeing asked that we delete “the cause was determined to be miscalculated pressure exposures during design” and “could result in missing or misaligned bonded plugs which” from the Discussion section of the NPRM (79 FR 56682, September 23, 2014). Boeing stated that there is no data showing the cause of the plugs to disengage was miscalculated pressure exposures.

We acknowledge the commenter's concerns and provide the following. We agree that the word “bonded” should be removed from the language in the SUMMARY section of this final rule, and in paragraph (e) of this AD, for clarification; we also agree that the language “the forward EE bay” should be removed throughout this AD, for the reasons provided by the commenter; we have changed all applicable sections accordingly.

In addition, we acknowledge the commenter's request that the cause of disengagement of the plugs is incorrect and should be removed from the Discussion section of the NPRM (79 FR 56682, September 23, 2014). We agree that there is no data showing the cause of the plugs to disengage was miscalculated pressure exposures; this issue stems from high pressure exposures associated with flight testing pressure profiles through pressurization checks during production. However, the Discussion section of the of the NPRM is not restated in this final rule; therefore, we have not changed this final rule in regard to the language in that section.

Boeing asked that we include detailed rework instructions in the actions required by paragraph (g) of the proposed AD (79 FR 56682, September 23, 2014). Boeing noted that the following language should be added before the first sentence: “Ensure all 80 stringer plugs are installed, and apply adhesive to them to ensure they cannot become dislodged or misaligned. At 2 locations, this will require rework beyond a nominal application of adhesive to the stringer plug. The rework at the unique locations will involve the following. . . .”

We acknowledge the commenter's concern; however, the rework instructions are described in detail in the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. Since this AD requires accomplishing the actions in accordance with this service information, there is no need to describe those instructions in detail in paragraph (g) of this AD. We have not changed this AD in this regard.

Boeing asked that we extend the compliance time for the bonded plug installation from 12 to 24 months. Boeing stated that a conservative recalculation of the Boeing risk analysis due to the condition being resolved in production, and based on a static fleet size of 88 airplanes, resulted in a control program time of 66 months. Boeing added that a service bulletin compliance time of 24 months will allow sufficient time for operator planning, scheduling, and accomplishment of the retrofit within the risk-based control program time.

We do not agree to extend the compliance time to 24 months. In developing an appropriate compliance time for this action, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the availability of required parts, and the practical aspect of doing the bonded plug installation within an interval of time that corresponds to the typical scheduled maintenance for the majority of affected operators. Under the provisions of paragraph (i) of this AD, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed this AD in this regard.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 56682, September 23, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 56682, September 23, 2014).

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

We reviewed Boeing Alert Service Bulletin B787-81205-SB530024-00, Issue 002, dated June 5, 2015. The service information describes procedures for drilling a hole and installing and bonding plugs in certain stringers of the lower lobe cargo compartments. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD affects 3 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Van Nuys Airport, Van Nuys, CA.

On August 19, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify Class D airspace and Class E surface area airspace at Van Nuys Airport, Van Nuys, CA (80 FR 50235). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in paragraph 5000 and 6002, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class D airspace and Class E surface area airspace at Van Nuys Airport, Van Nuys, CA. A review of the airspace revealed additional Class D airspace and Class E surface area airspace necessary to support instrument arrival procedures at the airport. Class D airspace extends upward from the surface to but not including 3,000 feet within a 4.3-mile radius of Van Nuys Airport excluding that airspace within the Bob Hope Airport, Burbank, CA, formerly Burbank-Glendale-Pasadena Airport, CA, Class C airspace area, and excluding that airspace within a 1.8-mile radius of Whiteman Airport, Los Angeles, CA. Class E surface area airspace extends upward from the surface within a 4.3-mile radius of Van Nuys Airport excluding that airspace within the Bob Hope Airport, Burbank, CA, formerly Burbank-Glendale-Pasadena Airport, CA, Class C airspace area, and excluding that airspace within a 1.8-mile radius of Whiteman Airport, Los Angeles, CA. The geographic coordinates for Bob Hope Airport and Whiteman Airport are adjusted to be in concert with the FAA's aeronautical data base.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

The FAA published a final rule in the Federal Register amending Class E surface area airspace at multiple airports in Missouri, including Farmington Regional Airport, Farmington, MO (80 FR 63085 October 19, 2015). Subsequent to publication the FAA identified that a magnetic bearing was used to describe parameters of the Class E surface area airspace for Farmington Regional Airport, Farmington, MO. This action replaces the magnetic bearing with a true bearing.

Accordingly, pursuant to the authority delegated to me, in the Federal Register of October 19, 2015 (80 FR 63085) FR Doc. 2015-26273, the bearing in the regulatory text on page 63086, column 3, line 9, is corrected as follows:

On May 8, 2015, the Department of Commerce published a proposed rule revising its existing regulations at 15 CFR part 4 under the FOIA and Privacy Act, 5 U.S.C. 552a. See 80 FR 26499. This rule proposed revisions to the Department's regulations under the Privacy Act. In particular, the action would amend the Department's Privacy Act regulations regarding applicable exemptions to reflect new Department wide systems of records notices published since the last time the regulations were updated. The revisions of the Privacy Act regulations in subpart B of part 4 incorporate changes to the language of the regulations in the following provisions: § 4.33 (General exemptions); and § 4.34 (Specific exemptions).

Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the 30-day open comment period. On June 29, 2015, the Department reopened the comment period for an additional 30 days because not all interested parties may have been given appropriate notification about this proposed new system of records, as well as time to respond with comments prior to the closing date of the original public comment period of June 8, 2015. See 80 FR 36397.

The Department received one public submission in response to the proposed rulemaking, which was similar or identical in some cases to the ones submitted by the commenter for the new Privacy Act System of Records: “COMMERCE/DEPT-25, Access Control and Identity Management System.” In particular, the commenter suggested that the “proposed changes [to this rule] are expressly intended to exempt the Department's proposed new system of records entitled `COMMERCE/DEPARTMENT-25, Access Control and Identity Management System,' set forth in 80 FR 26534, published May 8, 2015, from most provisions of the Privacy Act.” The commenter also indicated that the Department provided insufficient business justification for this system of records. The commenter further submitted the view that the routine uses listed in this notice may result in matching programs as described in 5 U.S.C. 552a(a)(8), adding that if the Department engages in any matching program, it must follow matching program requirements outlined in 5 U.S.C. 552a(o).

The Department would like to thank the commenter for submitting comments in response to the proposed rulemaking. While due consideration has been given to the comments received, since they were similar or identical to those received for the proposed Privacy Act System of Records notice entitled: “COMMERCE/DEPT-25, Access Control and Identity Management System,” and the comments did not address any substantive changes to this proposed rule, the Department will not address the comments in this notice. Instead, responses to the commenter's comments can be found under the Public Comments and Responses section of the final notice for COMMERCE/DEPT-25.

With this action, the Department's Privacy Act regulations are revised regarding applicable exemptions to reflect new Department wide systems of records notices published since the last time the regulations were updated. Specifially, the revisions of the Privacy Act regulations in subpart B of part 4 incorporate changes to the language of the regulations in the following provisions: § 4.33 (General exemptions); and § 4.34 (Specific exemptions).

It has been determined that this notice is not significant for purposes of E.O. 12866. Regulatory Flexibility Act: The Chief Counsel for Regulation for the Department of Commerce 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. This final rule amends the Department's Privacy Act regulations regarding applicable exemptions to reflect new Department wide systems of records notices published since the last time the regulations were updated. These amendments are administrative in nature and will not impose a financial impact on anyone, does not change the way any acts or the way anyone is treated. Further, the applicable exemptions apply to information collected to establish identity, accountability, and audit control of electronic or other digital certificates of assigned personnel who require access to Department of Commerce electronic and physical assets. The information collected is provided on a voluntary basis, with no cost incurred by individuals. Because notice and opportunity for comment are not required pursuant to 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, a regulatory flexibility analysis is not required and has not been prepared.

Paperwork Reduction Act: This document does not contain a collection-ofinformation requirement subject to the Paperwork Reduction Act (PRA). Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number.

For reasons stated in the preamble, the Department of Commerce amends 15 CFR part 4 as follows:

Alameda County Public Works Agency has requested a temporary change to the operation of the High Street Drawbridge, mile 6.0, over Oakland Inner Harbor Tidal Canal, at Alameda, CA. The bridge provides a vertical clearance of 16 feet above Mean High Water in the closed-to-navigation position. The bridge currently operates under 33 CFR 117.181. Navigation on the waterway is commercial and recreational.

The bridge will be secured in the closed-to-navigation position, October 26, 2015 through November 25, 2015, Monday through Friday, 9:30 a.m. to 6:30 p.m., due to replacement of the center span lock. During nights and weekends, the bridge will be able to open upon 2 hours advance notice with single leaf openings. During working hours a 15-foot wide scaffold at mid-channel will reduced vertical clearance by 9 feet. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is an alternate route for shallow draft vessels through San Leandro Bay. The Coast Guard will also inform the users of the waterway by our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so they can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

California Department of Transportation has requested a temporary change to the operation of the Commodore Schuyler F. Heim highway drawbridge, mile 4.9, over Cerritos Channel, at Long Beach, CA. The bridge will provide a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position until October 26, 2015. After October 26, 2015, the bridge and falsework will provide a vertical clearance of 5 feet above Mean High Water until the bridge and falsework are removed completely from the waterway. The bridge currently operates as required by 33 CFR 117.147(a). Navigation on the waterway is commercial and recreational.

The bridge will be secured in the closed-to-navigation position from 6 a.m. on October 12 to 6 p.m. on November 25, 2015 while the bridge is removed from the waterway. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and Los Angeles Harbor can be used as an alternate route for vessels. The Coast Guard will also inform the users of the waterway by our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so they can arrange their transits to minimize any impact caused by the temporary deviation.

The bridge will be removed from the waterway and 33 CFR 117.147(a) will be revised accordingly. This deviation from the operating regulations is authorized under 33 CFR 117.35.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable as the vessels at issue will be arriving in late October and a safety zone is needed at that time to help ensure the safety of all waterway users.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For reasons identical to those described above, delaying the effective date until 30 days after publication would be impracticable since the regulation is immediately necessary to help ensure the safety of all waterway users.

The legal basis for this rule is the Coast Guard's authority to establish limited access areas is: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1. POLAR PIONEER and NOBLE DISCOVERER are Shell contracted vessels that are returning to the Puget Sound region as a part of demobilizing from oil drilling and exploration operations in the Arctic over the spring and summer of 2015. In the spring of 2015 a significant amount of First Amendment activity related to Shell's arctic activities took place in both Washington and Oregon and such activity may occur again when the vessels are in the Puget Sound. The previous First Amendment activity included the unauthorized boarding of a Shell contracted vessel on the high seas by Greenpeace members, the formation of a “kayak flotilla” in the Puget Sound to advocate against Shell's operations in the region including an attempt to block POLAR PIONEER from leaving Seattle, Washington, and the use of a “kayak flotilla” as well as Greenpeace members hanging from a bridge in Portland, Oregon to prevent another Shell contracted vessel from departing. Draft restrictions, vessel maneuvering characteristics, and geographic/environmental conditions may constrain the ability of large commercial vessels, like the POLAR PIONEER and NOBLE DISCOVERER, to maneuver in close quarters with other vessels, particularly small craft piloted by recreational operators. Intentional close-in interaction of these vessels will create an increased risk of collision, grounding, or personal injury for all parties. This safety risk to all parties and the port itself is best addressed by mandating a minimum zone of separation. For these reasons, the Coast Guard believes that safety zones around the POLAR PIONEER and NOBLE DISCOVERER, as well as any vessel actively engaged in towing or escorting those vessels, are necessary to ensure the safety of all waterways users.

In this rule, the Coast Guard is establishing safety zones around the Shell contracted vessels POLAR PIONEER and NOBLE DISCOVERER, as well as any vessel actively engaged in towing or escorting those vessels. The safety zones are established in subsection (a) of this temporary regulation. Per subsection (a)(1), while transiting, the safety zone around each of the vessels will encompass all waters within 500 yards of the vessels in all directions from those vessels and any other vessel actively engaged in towing or escorting those vessels. Persons and/or vessels that desire to enter these safety zones must request permission to do so from the Captain of the Port, Puget Sound by contacting the Joint Harbor Operations Center at 206-217-6001, or the on-scene Law Enforcement patrol craft, if any, via VHF-FM CH 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule is not a significant regulatory action as the safety zones are limited in both size and duration and any person and/or vessel needing to transit through the safety zones may be allowed to do so with the permission of the Captain of the Port, Puget Sound.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the affected waterways when the safety zones are in effect. The safety zones will not have a significant economic impact on a substantial number of small entities, however, because the safety zones are limited in both size and duration and any person and/or vessel needing to transit through the safety zones may be allowed to do so with the permission of the Captain of the Port, Puget Sound.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of temporary safety zones to deal with an emergency situation that is one week or longer in duration. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

The Coast Guard respects the First Amendment rights of all individuals and supports the ability to congregate and exercise First Amendment free speech rights safely and without interfering with other maritime traffic. Of particular note, large vessels operating in restricted waters cannot maneuver freely, nor can they stop immediately. As such, any First Amendment activity taking place in immediate proximity to such vessels can quickly result in extremis. Individuals that desire to exercise their First Amendment rights are asked to do so with full regard to vessel traffic conditions and are requested to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate their activities so that their message can be heard, without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

In a direct final rule published in the Federal Register on November 28, 2014, 79 FR 70938, VA amended 38 CFR 17.108 to eliminate copayments for mental health peer support services. VA published a companion substantially identical proposed rule at 79 FR 70941, on the same date to serve as a proposal for the revisions in the direct final rule in case adverse comments were received. The direct final rule and proposed rule each provided a 60-day comment period that ended on January 27, 2015. No adverse comments were received. Six comments that supported the rulemaking were received from the general public. One commenter also urged VA to exempt evidence-based, cost-effective primary care services from having a required copayment. This comment is outside the scope of this rulemaking, and therefore, VA is not making any changes to this rulemaking based on this comment.

Under the direct final rule procedures that were described in 79 FR 70938 and 79 FR 70941, the direct final rule became effective on January 27, 2015, because no adverse comments were received within the comment period. In a companion document in this issue of the Federal Register, VA is withdrawing the proposed rulemaking, RIN 2900-AP10, published at 79 FR 70941, as unnecessary.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 26, 2015, for publication.

I. Background

On March 12, 2008, EPA promulgated revised 8-hour ozone national ambient air quality standards (NAAQS) of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of ambient air quality data at the conclusion of the designation process. EPA designated Blount and Knox Counties in Tennessee as a nonattainment area (hereinafter referred to as the “Knoxville Area” or “Area”) for the 2008 8-hour ozone NAAQS on April 30, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088 (May 21, 2012). At the time of designation, the Knoxville Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS. On March 6, 2015, EPA finalized a rule entitled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule) that establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS.1 See 80 FR 12264. This rule establishes nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA, including an attainment date three years after the July 20, 2012, effective date, for areas classified as marginal for the 2008 8-hour ozone NAAQS. Therefore, the attainment date for the Knoxville Area is July 20, 2015.2 On July 13, 2015, EPA determined that the Area had attained the 2008 8-hour ozone NAAQS and redesignated the Area to attainment. See 80 FR 39970.

Ground level ozone is not emitted directly into the air, but is created by chemical reactions between NOX and VOC in the presence of sunlight. Emissions from industrial facilities and electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources of NOX and VOC. Section 182(a)(3)(B) of the CAA requires each state with ozone nonattainment areas to submit a SIP revision requiring annual emissions statements to be submitted to the state by the owner or operator of each NOX or VOC stationary source 3 located within a nonattainment area showing the actual emissions of NOX and VOC from that source. The first statement is due three years from the area's nonattainment designation, and subsequent statements are due at least annually thereafter. The State of Tennessee satisfied the obligation to develop a nonattainment SIP revision for the Knoxville Area addressing section 182(a)(3)(B). EPA approved the State's SIP revision addressing emissions statement requirements for the 2008 8-hour ozone standard on March 5, 2015. See 80 FR 11974.

The Knox County Air Pollution Control Board (County Board) adopted a new regulation, Knox County Air Quality Management Regulation Section 26.5.C—Emissions Statement, on October 16, 2013, requiring certain sources to report actual emissions of VOC and NOX to the County Department annually and amended that regulation on January 21, 2015, to more closely reflect the Tennessee emissions statements requirements for the 2008 8-hour ozone standard in Tennessee Air Pollution Control Regulation 1200-3-18ndash;.02—General Provisions and Applicability. EPA is approving the portion of the March 14, 2014, SIP submittal containing the version of Section 26.5.C adopted by the County Board on October 16, 2013, and the May 14, 2015, SIP submittal containing the revisions to Section 26.5.C adopted by the County Board on January 21, 2015. More information on EPA's analysis of the SIP revisions is provided below.

The March 14, 2014, and May 14, 2015, submittals seek to add Knox County Air Quality Management Regulation Section 26.5.C to the Knox County portion of the Tennessee SIP. EPA initially approved Knox County Air Quality Management Regulation Section 26.5—Monitoring, Recording, and Reporting of Source Emissions, into the Tennessee SIP in 1972. See 37 FR 10842 (May 31, 1972). Knox County is amending Section 26.5 to include Section 26.5.C—Emissions Statement that reflects the State of Tennessee's SIP-approved emissions statement requirements in Tennessee Air Pollution Control Regulation 1200-3-18-.02. Section 26.5.C requires owners and operators of sources with actual emissions of 25 tons per year or more of VOC or NOX to submit annual reports of actual emissions to the County Department. Tennessee's May 14, 2015, SIP submittal contains the County Board's January 21, 2015, revisions to Section 26.5.C. that modify the submission deadline and include more detailed certification requirements. The revisions set a June 15 deadline to submit emissions statements to the County Department for 2015 and a March 31 deadline for 2016 and beyond. The revisions also require that an official of the company sign the report, certifying that the information and data contained in the report is accurate to the best knowledge of the individual certifying the report. EPA has determined that these SIP submissions meet the requirements of the CAA.

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 Knox County Air Quality Management Regulation Section 26.0 entitled “Monitoring, Recording, and Reporting”, effective January 21, 2015, addressing annual emissions statements for certain VOC and NOX sources in Knox County. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 4 office (see the ADDRESSES section of this preamble for more information).

EPA is approving the portion of the March 14, 2014, SIP submittal containing the version of Section 26.5.C adopted by the County Board on October 16, 2013, and the May 14, 2015, SIP submittal containing the revisions to Section 26.5.C adopted by the County Board on January 21, 2015. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective January 4, 2016 without further notice unless the Agency receives adverse comments by December 7, 2015.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All adverse comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 4, 2016 and no further action will be taken on the proposed rule.

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. 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 Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

In addition, 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 January 4, 2016. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

The background for this action is discussed in detail in our August 19, 2015, proposal (80 FR 50240). In that document, we proposed to approve portions of SIP submittals for the State of Louisiana. These amendments provide clarity to the SIP-approved rules and correct contradictory language. Specific proposed revisions address the assessment and validation of a facility's emissions inventory values. Further, the amendments revise the SIP rules to conform to the latest changes to Louisiana laws including making changes to the Louisiana NNSR and PSD permitting programs reflecting the requirements found in the federal NSR Reform Program SIP rules. The changes also define, for NNSR purposes, the parishes that have been designated as non-attainment for ozone. Finally, this action addresses eight rule changes for baseline actual emissions and projected actual emissions definitions. This action is being taken under section 110 of the Act. We did not receive any comments regarding our proposal.

We are approving portions of SIP submittals for the State of Louisiana submitted on July 25, 1997, June 22, 1998, February 2, 2000, January 27, 2003, June 15, 2005, December 20, 2005, May 5, 2006, July 20, 2007, November 9, 2007, August 14, 2009, May 16, 2011, and February 27, 2013, to address air permit procedure revisions, ERC banking revisions, Baton Rouge Severe Area rule update revisions, NSR reform revisions, rescission of the alternative emission reduction plan for Union Carbide Corporation Taft Plant, revisions for Particulate Matter 2.5 (PM2.5) National Ambient Air Quality Standards (NAAQS), and an update of PM2.5 increments. We approve the portions of the SIP submittals that meet CAA requirements. Specifically, we are approving the following revisions to the Louisiana SIP:

• Revisions to LAC 33:III.501 as submitted on July 25, 1997;

• Revisions to LAC 33:III.504 as submitted on June 15, 2005; December 20, 2005; May 5, 2006; November 9, 2007; August 14, 2009; and May 16, 2011;

• Revisions to LAC 33:III.509 as submitted on July 25, 1997; June 22, 1998; January 27, 2003; February 2, 2000; December 20, 2005; May 5, 2006; November 9, 2007; May 16, 2011; and February 27, 2013;

• Revisions to LAC 33:III.603 as submitted on February 2, 2000; and August 14, 2009;

• Revisions to LAC 33:III.605 as submitted on August 14, 2009;

• Revisions to LAC 33:III.607 as submitted on November 9, 2007 and August 14, 2009;

• Revisions to LAC 33:III.613 as submitted on January 27, 2003 and May 5, 2006;

• Revisions to LAC 33:III.615 as submitted on January 27, 2003 and August 14, 2009; and

• The removal of the Union Carbide Bubble Permit in Hahnville, Louisiana, as submitted on July 20, 2007, at 40 CFR 52.970(d) to reflect the rescission of the permit by LDEQ.

The EPA is finding that the May 16, 2011, revisions to the Louisiana NNSR program at LAC 33:III.504 address all required NNSR elements for the implementation of the 1997 and 2006 PM2.5 NAAQS. We note that the Louisiana NNSR program does not include regulation of volatile organic compounds and ammonia as PM2.5 precursors. However, as section 189(e) of the Act requires regulation of PM2.5 precursors that significantly contribute to PM2.5 levels “which exceed the standard in the area” and Louisiana does not have a designated PM2.5 nonattainment area; the revisions addressing only sulfur dioxide and nitrogen oxides are not inconsistent with the requirements of the CAA. In the event that an area is designated nonattainment for the 2012 PM2.5 NAAQS or any other future PM2.5 NAAQS, Louisiana will have a deadline under section 189(a)(2) of the CAA to make a submission addressing the statutory requirements as to that area, including the requirements in section 189(e) that apply to the regulation of PM2.5 precursors.

This action is being taken under section 110 of the Act.

In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Louisiana regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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);

• 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 Clean Air Act; 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 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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:

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. Section 110(a) of the CAA generally requires states to make a SIP submission to meet applicable requirements in order to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. For additional information on the infrastructure SIP requirements, see the proposed rulemaking published on March 13, 2015. (80 FR 13312)

On March 13, 2015, EPA proposed to approve portions of North Carolina's November 2, 2012, 2008 8-hour ozone NAAQS infrastructure SIP submission with the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of 110(E)(ii). See 80 FR 13312.

EPA received one set of comments on the March 13, 2015, proposed rulemaking to approve portions of North Carolina's infrastructure SIP submission intended to meet the CAA requirements for the 2008 8-hour ozone NAAQS. A summary of the comments and EPA's responses are provided below.

As an initial matter, the Commenter included interpretations of section 110(a)(2)(A) of the CAA in a background section, but this section did not include comments specific to EPA's March 13, 2015 proposed action on the North Carolina infrastructure SIP submittal. EPA provided an analysis of these same interpretations of section 110(a)(2)(A) in an October 16, 2014, rulemaking regarding the infrastructure SIP of Maryland for 2008 8-hour ozone NAAQS. (See 79 FR 62010) and we are incorporating those responses by reference. Specifically, please see EPA's Response 2, which addresses the Commenter's interpretation regarding CAA plain language; Response 3, which addresses the Commenter's interpretation of the legislative history of the CAA; Response 5, which addresses the Commenter's interpretation of EPA regulations (40 CFR 51.112); Response 6, which addresses the Commenter's interpretation of EPA interpretations of section 110 in infrastructure SIP rulemakings; and Response 4, which addresses the Commenter's interpretation of Supreme Court and appellate court decisions.

Comment 1: The Commenter contends that North Carolina's infrastructure submission “fails to include stringent enough emission limits and other restrictions on sources of ozone precursors, like nitrogen oxides (“NOX”), to ensure that areas not designated nonattainment will attain and maintain the 2008 eight-hour ozone NAAQS.” Based on this contention, the Commenter then asserts that “North Carolina's I-SIP does not meet the basic infrastructure requirements under section 110(a)(2) and must be disapproved.”

Response 1: EPA disagrees with the Commenter's contention that NC DAQ's 2008 8-hour ozone infrastructure SIP submission is not approvable with respect to section 110(a)(2)(A) because it fails to include enforceable emission limitations sufficient to ensure attainment and maintenance of the 2008 8-hour ozone NAAQS in attainment areas. In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state.

EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].” In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. EPA believes that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

As stated in EPA's proposed approval for this rule, to meet section 110(a)(2)(A), North Carolina submitted a list of existing emission reduction and other control measures in the SIP that control emissions of volatile organic compounds (VOCs) and NOX. The submission also identifies North Carolina's statutory authority to adopt emission control standards to meet established air quality standards such as the 2008 ozone NAAQS. Therefore, EPA believes North Carolina's submission appropriately reflects the first step in the State's planning process for attaining and maintaining the 2008 ozone NAAQS and meets the requirements of section 110(a)(2)(A) because the SIP contains enforceable control measures for ozone precursors and the submission provides that North Carolina has the tools to develop and implement measures as may be needed to attain and maintain the 2008 8-hour ozone standard.

Comment 2: The Commenter contends that recent monitoring of the 2008 ozone NAAQS in areas not designated nonattainment confirms that North Carolina's existing emission limitations are insufficient to attain and maintain the NAAQS. The Commenter specifically contends that the exceedances of the ozone NAAQS with 2010-2012 data, in areas [Forsyth and Guilford counties] not designated nonattainment under the standard demonstrate that North Carolina's existing emissions limitations cannot ensure attainment and maintenance of the eight-hour ozone standard.

Response 2: EPA disagrees with the Commenter's contention that NCDAQ's 2008 8-hour ozone infrastructure SIP submission is not approvable with respect to section 110(a)(2)(A) because of the monitor design values noted by the Commenter. While EPA shares the Commenter's concern regarding any county monitoring violations of the NAAQS, such concerns are outside the scope of what is germane to an evaluation of section 110(a)(2)(A) for an infrastructure SIP submission. With regard to the 2010-2012 design values for Forsyth and Guilford Counties as mentioned by the Commenter, Forsyth and Guilford Counties attained the 2008 8-hour ozone NAAQS with 2011-2013 data and continue to attain with preliminary 2013-2015 data.

Regardless, EPA does not believe that this 2010-2012 monitoring data referenced by the Commenter provides an appropriate basis upon which to disapprove North Carolina's infrastructure SIP as it relates to section 110(a)(2)(A) requirements. Pursuant to section 110(a)(2)(A), an infrastructure SIP submission must include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the Act. The Commenter, however, seems to believe that in the context of an infrastructure SIP submission, section 110(a)(2)(A) requires the state to submit control measures sufficient to demonstrate attainment in an area designated attainment but that has a recent monitored violation of the NAAQS. EPA does not believe that this is a reasonable interpretation of the provision with respect to infrastructure SIP submissions. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon it. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period, nor to predict the air quality data in periods after development and submission of the SIPs.

Further, the Act provides states and EPA with other tools to address concerns that arise with respect to violations of the NAAQS in a designated attainment area, such as the authority to redesignate areas pursuant to section 107(d)(3), the authority to issue a “SIP Call” pursuant to section 110(k)(5), or the general authority to approve SIP revisions that can address such violations of the NAAQS through other appropriate measures. As described above, EPA believes that North Carolina's infrastructure submission is sufficient because it appropriately addresses the structural SIP requirements of section 110(a)(2)(A) by including enforceable emission control measures and the authority to adopt and implement additional measures, if needed.

Comment 3: The Commenter contends that North Carolina's infrastructure SIP must ensure that proper mass limitations and short term averaging periods are imposed on certain specific large sources of NOX such as power plants. Moreover, the Commenter contends that emission limits must apply at all times, including during periods of start-up, shutdown, and malfunction (SSM), to ensure that all areas of North Carolina attain and maintain the 2008 eight-hour ozone NAAQS. Absent such limits, the Commenter contends that an I-SIP submission may not be approved. Specifically the Commenter contends that enforceable emission limitations for the State's coal fired EGUs [electric generating units] should be set on a pounds per hour (“lb/hr”) basis, based on, at most, a corresponding 0.07 lb/MMBtu limit. The Commenter further contends that setting a lb/hr limit will ensure consistent protection of the ambient air quality regardless of whether the nominal maximum heat input capacity for the unit is accurate or changes in the future and addresses the issue of variations in mass emissions during startup and shutdown so that even if the NOX emission rate in lb/MMBtu is higher during startup and shutdown (for instance when selective catalytic reduction technology is not being engaged), hourly emissions of NOX would not cause or contribute to violations of the NAAQS.

Response 3: EPA appreciates the commenter's support of North Carolina's pursuit of additional NOX emission limitations at coal-fired power plants in North Carolina. However, EPA does not believe that approval of the infrastructure SIP is contingent on the State adopting additional controls for the State's coal fired EGUs. Congress established the CAA such that each state has primary responsibility for assuring air quality within the state and determining an emission reduction program for its areas subject to EPA approval, with such approval dependent upon whether the SIP as a whole meets the applicable requirements of the CAA. See Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)). EPA cannot condition approval of the North Carolina infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. As explained in the proposal and in this final action, North Carolina does not need to adopt additional emission control requirements in order to meet the requirements in section 110(a)(2)(A).

Furthermore, we disagree with the commenter's contention that EPA cannot approve an infrastructure SIP submission without ensuring that it contains emission limits applicable at all times, including during periods of SSM. For the reasons stated in the proposal, EPA does not believe that an action on a state's infrastructure SIP is necessarily the appropriate type of action to address this type of deficiency. See 80 FR at 13315-17. Rather, as described in the proposal, EPA believes that the authority Congress provided to EPA under section 110(k)(5), for example, allows EPA to take appropriately tailored action. Indeed, EPA recognizes that a number of states have existing SSM provisions contrary to the CAA and EPA guidance and, in the time since the proposal for this action, has finalized a separate action addressing those state regulations. See “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” 80 FR 33840 (June 12, 2015) (SSM SIP Action of 2015). In the SSM SIP Action of 2015, EPA concluded that certain SIP provisions in 36 states (applicable in 45 statewide and local jurisdictions) are substantially inadequate to meet CAA requirements and thus issued a “SIP call” for each of those 36 states pursuant to CAA section 110(k)(5).1 North Carolina's unlawful SSM provisions are covered by that action. See, e.g., id. at 33964. EPA continues to believe that existing, unlawful provisions related to excess emissions during SSM events should be addressed through more appropriate authorities provided by Congress; not in piecemeal fashion, in the context of reviewing a state's infrastructure SIP submission.

Comment 4: The Commenter contends that, to comply with section 110(a) and avoid additional nonattainment designations for areas impacted by ozone levels above the standard, “EPA must disapprove North Carolina's infrastructure SIP to ensure that large sources of NOX and VOCs cannot cause or contribute to exceedances of the 8-hour ozone NAAQS and, thereby prohibit implementation, attainment, and maintenance of the NAAQS throughout all areas of the State, in violation of CAA section 110(a)(1) and (2)(A).” The commenter states that the inadequacies of the SIP are highlighted by recent monitoring data.

Response 4: EPA disagrees that it must disapprove North Carolina's submittal to ensure that large sources of NOX and VOC do not contribute to exceedances of the 8-hour ozone NAAQS such that additional areas would need to be designated nonattainment in the future. In essence, this comment suggests that as part of the 110(a)(2)(A) SIP, the state must demonstrate that all areas of the state will maintain the standard in the future. As explained previously, we disagree that the language and structure of the CAA mandate such a result. The CAA recognizes that air quality may change over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment and has provisions addressing such changes. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.

Under CAA section 110(a)(2)(H), the State must demonstrate in its infrastructure SIP submission that it has the authority to revise of its SIP, including as needed to address any finding by EPA that the SIP is substantially inadequate to attain the NAAQS. To satisfy CAA section 110(a)(2)(H), North Carolina's submittal cites to statutory authority that allows the state to adopt standards and plans to implement the requirements of the CAA and Federal implementing regulations, and to specifically establish lower emissions limits if needed to attain or maintain the ozone NAAQS. Therefore, the CAA provides appropriate tools to address changes in air quality over time and North Carolina's submittal also appropriately addresses the elements needed to address any changes in air quality over time.

Comment 5: The Commenter contends that ozone concentrations will be exacerbated by ongoing climate change and that North Carolina's existing emission limits are not stringent enough to adequately protect the public from the dangers posed by exposure to elevated ozone concentrations. The Commenter contends that this underscores the need for North Carolina to impose tighter emission limits if it hopes to attain and maintain the current NAAQS for ozone in areas not currently designated nonattainment.

Response 5: EPA agrees that climate change is a serious environmental issue; however, for the reasons provided in the previous responses, we disagree that states are required to anticipate and plan for possible future nonattainment within each area of the state as part of the infrastructure SIP.

We note that given the potential wide-ranging impacts of climate change on air quality planning, EPA is developing climate adaptation implementation plans to assess the key vulnerabilities to our programs (including how climate change might affect attainment of national ambient air quality standards) and to identify priority actions to minimize these vulnerabilities. With respect to climate impacts on future ozone levels, EPA's Office of Air and Radiation has identified as a priority action the need to adjust air quality modeling tools and guidance as necessary to account for climate-driven changes in meteorological conditions and meteorologically-dependent emissions. These efforts are just beginning.

Additionally, as previously stated regarding tighter emission limits, EPA believes that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. As explained above, to the extent that climate change or any other factor exacerbates air quality in the future, the CAA provides the appropriate tools to assess and address these conditions.

In this rulemaking, EPA is taking final action to approve the portions of North Carolina's infrastructure submission as demonstrating that the State meets the applicable requirements of sections 110(a)(1) and (2) of the CAA for the 2008 8-hour ozone NAAQS, with the exception of the PSD permitting provisions in sections 110(a)(2)(C), prong 3 of D(i) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of section 110(E)(ii).

With the exceptions described above, EPA is taking final action to approve North Carolina's November 2, 2012, infrastructure SIP submission because it addresses the required infrastructure elements for the 2008 8-hour ozone NAAQS. NCDAQ has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of the CAA to ensure that the 2008 8-hour ozone NAAQS is implemented, enforced, and maintained in North Carolina.

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. 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);

• 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 January 4, 2016. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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:

This supplementary information section is arranged as follows:

On June 4, 2003, Ohio submitted a variety of revisions to the EPA approved version of Ohio Administrative Code (OAC) 3745-17 in the state's SIP, which regulates particulate matter and opacity from affected sources. While EPA subsequently approved many of these revisions, EPA published action on June 27, 2005, proposing to disapprove specific submitted revisions in OAC 3745-17-03(B) that in EPA's view relaxed existing SIP opacity limitations without an adequate analysis under section 110(l) or section 193 of the Clean Air Act.1 Consistent with this proposed disapproval, the version of OAC 3745-17-03(B) submitted by the state on June 4, 2003, was not, and is not, an approved provision of the Ohio SIP.

On September 10, 2009, for purposes of consolidating its existing SIP rules identifying applicable air quality standards, and to adjust the cross references between rules accordingly, Ohio submitted additional revisions to several of its existing rules to EPA for approval into the SIP. Most notably, these rule revisions included a modification to the existing cross reference in OAC 3745-17-03(A), which was necessary because the ambient particulate matter measurement method identified in this paragraph was for purposes of assessing attainment with the ambient air quality standards now located in OAC 3745-25-02, rather than in OAC 3745-17-02.

On October 26, 2010, at 75 FR 65572, EPA published a direct final action approving the relevant revisions in the September 10, 2009, submission. In the preamble and in the codification of the October 26, 2010, action, EPA erroneously listed the approved SIP revisions as including the entirety of OAC 3745-17-03, rather than specifying more precisely that the approval as it pertained to OAC 3745-17-03 applied only to the revised cross reference in OAC 3745-17-03(A). This error left the misimpression that EPA had approved other significant substantive revisions in OAC 3745-17-03, including those in OAC 3745-17-03(B) that EPA had previously proposed to disapprove. The codification in the October 26, 2010, action with respect to OAC 3745-17-03 should have been explicitly limited to OAC 3745-17-03(A), to reflect the EPA approval of only the revised cross reference.

EPA subsequently recognized that the codification erroneously left the misimpression that it had approved more of OAC 3745-17-03 than the revision of the cross reference in OAC 3745-17-03(A). On April 3, 2013, at 78 FR 19990, EPA published action to correct the error. EPA took this action pursuant to its general rulemaking authority under Administrative Procedures Act section 553. Two parties challenged EPA's April 3, 2013, action, and one of these parties also filed a petition for reconsideration of that action, objecting that EPA failed to correct the error in the October 26, 2010, action in accordance with the procedures of section 110(k)(6) of the Clean Air Act.

EPA responded to the petition for reconsideration by agreeing to take this action pursuant to section 110(k)(6), as requested by the petitioner. Accordingly, EPA published proposed rulemaking on February 7, 2014, using its authority under section 110(k)(6) to correct errors in its rulemaking of October 26, 2010.2 Given the petitioners' expressed interest in commenting on EPA's action, EPA elected to use its authority under section 110(k)(6) for this action because, under these circumstances, it would provide the best mechanism to correct the apparent misunderstandings concerning the error in the October 26, 2010, action.

EPA's February 7, 2014, proposal provides an extensive description of the error in its October 26, 2010, rulemaking, provided in subsections entitled, “What was the error in description and codification?”, “What precipitated this error?”, and “Why was it evident that this was an error?” It is not necessary to repeat that detailed explanation here. EPA proposed to correct the error to remove any misimpression in its October 26, 2010, rulemaking that EPA had approved any revisions to OAC 3745-17-03 other than the cross reference in OAC 3745-17-03(A). Specifically, EPA proposed to take action pursuant to Clean Air Act section 110(k)(6) repromulgating the correction published on April 3, 2013. EPA solicited comments on this proposed error correction, while noting that any comments on the technical or legal merits of certain substantive revisions to OAC 3745-17-03 (e.g., the opacity-related provisions in OAC 3745-17-03(B)) or on the pending proposed disapproval of those provisions would not be germane to this error correction rulemaking.

EPA intended to correct the error in the October 26, 2010, action first and then separately to complete the action to address the merits of the substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP submission that were the subject of the June 27, 2005, proposed disapproval. To this end, EPA published a supplemental proposal on June 26, 2014, reopening comment on its prior proposed disapproval of revisions to OAC 3745-17-03.3 Subsequently, however, Ohio has withdrawn the portion of the June 4, 2003, submission that EPA proposed to disapprove.4

Accordingly, since the provisions is withdrawn, EPA does not need to complete action on the June 4, 2003, SIP submission. Significantly, this also confirms that the submitted substantive revisions to OAC 3745-17-03 are not part of the EPA approved SIP and that the EPA's October 26, 2010, action could not have revised those elements of the existing version of OAC 3745-17-03 in the SIP, inadvertently or otherwise. Except for an amendment to the cross reference to ambient air quality standards in OAC 3745-17-03(A) (which EPA approved on October 26, 2010), the version of OAC 3745-17-03 in the SIP remains the version effective in the state on January 31, 1998, approved by EPA on October 16, 2007.

EPA received comments on its proposed error correction from three parties: (i) The Ohio Environmental Protection Agency (Ohio EPA); (ii) the Ohio Utility Group; and (iii) a group including the Ohio Chamber of Commerce, Ohio Manufacturers Association, and Ohio Chemistry Technology Council (Chamber et al.). The following are significant adverse comments from each commenter and EPA's responses.

Comment: The commenter asserted that: “On February 7, 2014, U.S. EPA proposed, as an error correction, to remove from Ohio's State Implementation Plan (SIP) a previously approved (October 26, 2010) portion of OAC Rule 3745-17-07 regarding methods for measurements to determine compliance with Ohio's 20% opacity limitation.” 5 With this statement, the commenter is implying that EPA in fact approved substantive revisions to OAC 3745-17-03 in the October 26, 2010, action, rather than merely approved the cross reference in OAC 3745-17-03(A). The commenter suggested that EPA acted on “the entirety” of the revisions to OAC 3745-17-03.

Response: EPA disagrees with the commenter's premise that the Agency approved any portion of OAC 3745-17-03 other than the revision to the cross reference in OAC 3745-17-03(A). EPA's February 17, 2014, proposed action rule provides an extensive explanation of the error that occurred in the October 26, 2010, action and the genesis of the error. Ohio's clearly stated purpose in making the September 10, 2009, submission was to consolidate its existing SIP provisions relating to ambient air quality standards and to revise certain cross references in existing approved SIP rules in order to reflect that reorganization. The specific SIP revisions at issue in the state's submission were reflected in redline and the redlined document identified the cross reference in OAC 3745-17-03(A) as the only revision relevant to OAC 3745-17-03. This indicates that approval of any substantive revisions in OAC 3745-17-03(B) would have been beyond the scope of the rulemaking. Moreover, EPA had already proposed to disapprove revisions to OAC 3745-17-03(B) on June 27, 2005, EPA received numerous, substantial comments for and against that proposed disapproval, and the rulemaking of October 26, 2010, provided no evidence of consideration of any of these comments. Although the commenter described EPA's proposed error correction action as an action to “remove . . . a previously approved” portion of rule, this is simply incorrect. EPA did not “previously approve” the portions of OAC 3745-17-03 that the Agency rulemaking of October 26, 2010, did not substantively address. EPA fully acknowledged in the February 17, 2014, proposal that the error that occurred in the October 26, 2010, action was the result of misunderstandings and miscommunications that it is seeking to rectify in this final error correction action. EPA is taking this final action in order to avoid further confusion on the part of regulated entities, regulators, and members of the public.

Comment: The commenter stated that it “firmly believes [that the provision in OAC 3745-17-03(B)] is fully approvable.” The commenter explained that it was “attaching, and reaffirming” its prior comments on EPA's proposed disapproval of this provision in the June 27, 2005, action. The commenter further requested that “[c]onsideration should be taken to the previous comments submitted by Ohio EPA and others regarding the approvability of the provision at question in this action.”

Response: As explained in the February 17, 2014, proposal for this action, EPA is focusing this section 110(k)(6) rulemaking on the specific error that occurred in the October 26, 2010, action. This rulemaking is not addressing the substantive merits of any portion of OAC 3745-17-03. Instead, this rulemaking is addressing whether EPA made an error in its October 26, 2010, rulemaking by including a codification that went beyond the scope of the rulemaking and whether EPA should correct that error by correcting the codification to reflect that the only portion of OAC 3745-17-03 that was addressed in that rulemaking was the cross reference in OAC 3745-17-03(A). Accordingly, the commenter's resubmission of its prior comments on the June 27, 2005, proposed disapproval is inappropriate and not germane to this action.

In addition to being outside the scope of this error correction action, EPA notes that the commenter's arguments also support EPA's conclusion that the October 26, 2010, action was in error to the extent that it appeared to approve any revision beyond the cross reference in OAC 3745-17-03(A). The commenter explicitly acknowledged that EPA previously received significant comments concerning the merits of OAC 3745-17-03(B), in particular comments that in the commenter's view warrant reversal of EPA's prior proposed disapproval. Furthermore, the commenter in effect argued that EPA has not adequately considered these comments. This is fully consistent with EPA's own observation that its October 26, 2010, rulemaking provided no evidence of any consideration of public comments concerning OAC 3745-17-03(B) whatsoever (again, because this provision was outside the scope of that rulemaking). Thus, the commenter appeared to agree with EPA's view that the October 26, 2010, rulemaking does not provide any evidence of the consideration of comments regarding OAC 3745-17-03(B) that would be necessary for any approval or disapproval of OAC 3745-17-03(B) to be considered lawful. Moreover, the commenter did not appear to dispute EPA's view that rulemaking on OAC 3745-17-03(B) could not be considered a lawful and valid part of the October 26, 2010, rulemaking even if it had been intended to be within the scope of the rulemaking. As explained in the February 17, 2014, proposal for this action, EPA had no such intentions and the fact that EPA did not address prior substantive comments on the merits of OAC 3745-17-03(B) should have alerted the commenter and other parties to this fact.

Finally, EPA acknowledges the commenter's request that that EPA complete its consideration of comments on the merits of OAC 3745-17-03(B), but such consideration is outside the scope of this rulemaking. By separate action, EPA intended to address the merits of the substantive revisions to OAC 3745-17-03 in the June 4, 2003, SIP submission that were the subject of the June 27, 2005, proposed disapproval. To this end, EPA published a supplemental proposal on June 26, 2014, reopening comment on its prior proposed disapproval of certain substantive revisions to OAC 3745-17-03.6 Subsequently, however, Ohio withdrew its submittal of revisions to OAC 3745-17-03(B).7 This renders consideration of comments with respect to the withdrawn submission moot, both for purposes of the June 27, 2005, proposed disapproval and for purposes of this error correction action.

Comment: The commenter objected that “U.S. EPA has made certain assertions regarding [OAC 3745-17-03(B)] that go beyond the scope of this proposed correction. U.S. EPA refers to the provision as `significant and substantive' and states the `unapproved' revisions `would allow significantly more opacity during certain periods.' ” The commenter disputed these statements. The commenter asserted its belief that “U.S. EPA has crossed the threshold and cannot go forward with the package under 110(k), since U.S. EPA is now making a technical argument as to why the previously approved SIP revision is no longer acceptable.” The commenter also argued that “as a procedural matter, U.S. EPA must start over from the beginning and outline and address the entire technical issue in full and not use the 110(k) `error' approach.”

Response: The premise of the commenter's arguments is that EPA's February 17, 2014, action in effect proposed to finalize EPA's prior proposed disapproval of certain portions of OAC 3745-17-03, not merely correcting the error that led to the misimpression that EPA had already approved the revisions in toto. The commenter is thereby ignoring EPA's clear statements about the actual scope of this error correction.

As explained in the February 17, 2014, proposal for this action, EPA is focusing this section 110(k)(6) rulemaking on the specific error that occurred in the October 26, 2010, action. EPA provided extensive discussion and explanation of the error that occurred in the October 26, 2010, action and why EPA could not be considered to have acted on any revisions to OAC 3745-17-03 that were outside the scope of that rulemaking. EPA explained the significance of OAC 3745-17-03(B) in the February 17, 2014, proposal as a means of explaining why EPA considered it important to correct the errors in its October 26, 2010, rulemaking. EPA noted in passing that it had already proposed to disapprove certain provisions for reasons that were already a matter of public record in the Federal Register as a means of emphasizing that it could not have approved those revisions in the October 26, 2010, action without an explicit discussion and justification for any such approval.

The commenter appears to agree that the revisions in OAC 3745-17-03(B) that it advocated for EPA to approve are significant and substantive. EPA statements regarding the significance of the error, however, cannot be considered to constitute final review of the merits of the erroneously addressed provisions. The October 26, 2010, action clearly did not address the merits of OAC 3745-17-03(B), and EPA's action proposing to correct an error related to these provisions did not address the merits of these provisions either.

The commenter disagreed in particular with EPA's characterization of OAC 3745-17-03(B) in the February 17, 2014, proposal as allowing significantly more opacity during certain periods. A more precise statement would have been that EPA had proposed to disapprove the pertinent revisions to OAC 3745-17-03(B) in the June 27, 2005, proposal based in significant part on the view that the revisions would allow significantly more opacity during certain periods. The commenter, along with several other commenters, has disputed EPA's proposed views regarding the merits of OAC 3745-17-03(B). As explained in detail in the February 17, 2014, proposal for this error correction, however, EPA did not intend, and could not have intended, to address the substantive merits of those revisions in the October 26, 2010, action. Indeed, with Ohio's withdrawal of its request for rulemaking on these provisions, EPA will no longer be conducting final rulemaking on the merits of OAC 3745-17-03(B). Nevertheless, the more relevant point is that the existence of these disputes as to the merits of OAC 3745-17-03(B) illustrates the importance of correcting any errors that might create the misimpression that EPA had completed its review of these issues. EPA believes that the significance of the provisions in OAC 3745-17-03(B) and the outstanding questions regarding whether those provisions could have been approved consistent with CAA requirements provide added value to correcting any misimpressions regarding the status of those provisions, namely misimpressions reasserted in these comments that EPA had already completed rulemaking on these provisions.

Contrary to the commenter's statement, EPA's proposed rulemaking to correct the errors in its October 26, 2010, action was not based on a technical argument regarding the merits of OAC 3745-17-03(B), including any technical argument as to whether these provisions allow significantly more opacity during certain periods. This assertion regarding whether the now withdrawn revisions to OAC 3745-17-03 would allow more opacity (made in EPA's 2005 proposed rulemaking addressing the merits of Ohio's now withdrawn SIP revision and contested by various commenters) illustrates the significance of the error in the October 26, 2010, action. However, the commenter provided no reason why characterization of the issue as significant and identification of any of the unresolved issues that were not addressed in the October 26, 2010, rulemaking (or elsewhere) should preclude EPA from assuring that the October 26, 2010, rulemaking is characterized properly.

Comment: The commenter objected to EPA statements in a separate unrelated rulemaking regarding SIP revisions for the State of Alabama. The commenter referred to EPA statements that the commenter characterized as citing “the 2005 proposed disapproval of Ohio's revision, in part, as justification for the proposed disapproval of Alabama's revision.” The commenter further asserted that this “mislead[s] the readers of the Alabama proposal that Ohio's proposed disapproval has followed its due course, when it has not.” The commenter requested that “any action taken on the Alabama proposal should not be used as justification for disapproving Ohio's provision.”

Response: EPA acknowledges that the proposed action concerning the State of Alabama mentioned the June 27, 2005, proposed disapproval of the Ohio submission. The existence of that proposal was, and is, a matter of record. EPA mentioned the June 27, 2005, proposed disapproval merely as means of explaining its views on relevant issue, not as a basis for a particular final action. The commenter did not explain why this comment concerning a proposed action in another state is relevant to the present error correction action concerning Ohio, nor does EPA consider it germane to this final action. In any event, the state has now withdrawn the portion of the submission that EPA proposed to disapprove, so this comment is moot.

Comment: The commenter asserted that “U.S. EPA's action is not trivial and is not a mere `correction.' In support of this statement, the commenter recited its view of the history of rulemaking on OAC 3745-17-03(B), including adoption by Ohio and proposed disapproval by EPA. The commenter observed that EPA received extensive comments on the June 27, 2005, proposed disapproval, but acknowledged that “U.S. EPA never finalized this proposed action and, based on a review of the record, U.S. EPA never responded to comments submitted on this proposed rule.” The commenter presented a summary of arguments in support of the merits of the opacity “exemption” in OAC 3745-17-03(B) that EPA proposed to disapprove in the June 27, 2005, proposal, and concluded that “this exemption is technically defensible and the data [compiled to formulate the exemption] were never rebutted by U.S. EPA.”

Response: The commenter did not elaborate on its argument that EPA's proposed error correction action “is not trivial” or why EPA's proposed action is not consistent with EPA's authority to correct errors under section 110(k)(6). To the extent that the commenter is arguing that EPA's authority under section 110(k)(6) is limited to correcting “trivial” errors, EPA disagrees. On its face, section 110(k)(6) authorizes EPA to correct any error in a rulemaking action and does not restrict that authority to correction of errors that other parties might characterize as “trivial.” By its plain terms, EPA's authority under section 110(k)(6) extends broadly to “action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification.” Similarly, by its plain terms EPA's authority is not limited with respect to the nature or seriousness of the error, i.e., it is not restricted to correction of “trivial” errors.

EPA and the commenters appear to agree on the fact that the revisions to OAC 3745-17-03(B) that EPA proposed to disapprove are important substantive provisions. In EPA's view, the importance of these provisions makes it necessary for EPA to clarify the fact that the October 26, 2010, rulemaking did not make any substantive revision to these provisions, and EPA cannot be considered to have lawfully acted on the revisions provisions without considering the comments for and against its June 27, 2005, proposal to disapprove them. Regardless of whether the error was “trivial” or not, EPA has concluded that the error warrants correction pursuant the authority of section 110(k)(6) (or under authorities that EPA is not using in this action).

The commenters' substantive arguments regarding the merits of OAC 3745-17-03(B) are not germane here, because they are not relevant to determining whether the codification contained in EPA's October 26, 2010, action was an erroneous description of that rulemaking action. The only issue in this action is EPA's correction of the error. Moreover, now that the state has withdrawn the submission seeking substantive revisions to OAC 3745-17-03(B), these comments are moot.

Comment: The commenter, in describing EPA's actions, states that “[i]n 2010, . . . it appeared that U.S. EPA approved [OAC] 3745-17-03 in its entirety.”

Response: The commenter evidently agrees that EPA had only “appeared” to have approved substantive revisions to OAC 3745-17-03(B) in the October 26, 2010, action, because that is how they themselves describe what occurred.

Comment: The commenter made several assertions that it believes preclude EPA from finalizing this error correction. First, the commenter “object[ed] to U.S. EPA's statement that a comment period was not required in issuing [the correction EPA published on April 3, 2013].” The commenter stated that section 110(k)(6) dictates how EPA should make corrections to past rulemakings. The commenter also noted that section 110(k)(6) in particular requires that an error made through notice and comment rulemaking can only be corrected through notice and comment rulemaking. The commenter asserted that EPA's April 3, 2013, action to effectuate the correction of the October 26, 2010, action was invalid because it failed to meet this requirement of section 110(k)(6).

Response: While EPA continues to believe that the Administrative Procedures Act provides independent authority for agencies to issue corrections, that authority was not the basis of this rulemaking. The commenter submitted a petition for reconsideration requesting that EPA publish notice and solicit comment pursuant to its error correction authority under Clean Air Act section 110(k)(6). EPA granted that request, and this action is the final step of the requested error correction rulemaking. The commenter objected to the procedure EPA used to correct the error in the April 3, 2013, rulemaking, but that rulemaking is being replaced by this rulemaking under section 110(k)(6). Thus, comments concerning the procedure EPA should or should not have followed with respect to the April 3, 2013, rulemaking are not relevant and in fact are made moot by this action. In short, EPA is correcting the error by the procedure that the commenter advocated.

Comment: The commenter also objected that EPA did not have “good cause” (in its April 3, 2013, rulemaking) under the Administrative Procedures Act section 553(b) to make corrections without undergoing notice and comment. The commenter asserted its view that notice and comment (for EPA's April 3, 2013, action) was “not impracticable, unnecessary or contrary to the public interest.” In other words, the commenter disagreed with EPA's determination that there was a good cause exception to the normal requirements for notice and comment, given the nature of error at issue.

Response: EPA disagrees with the commenter's conclusion that correction of what was essentially a typographical error requires full notice and comment rulemaking in all cases. Nevertheless, EPA notes that this comment suggests that the commenter acknowledged that Administrative Procedures Act section 553(b) authorizes corrections, even without notice and opportunity for comment, so long as EPA adequately justifies the decision not to undergo notice and opportunity for comment. In any case, EPA concludes that this rulemaking does not invoke that authority to forego notice and comment for good cause, and this action makes moot the rulemaking (published April 3, 2013) that did invoke that authority.

Comment: The commenter also objected to EPA's description of the error in the October 26, 2010, action as essentially a typographical error. The commenter claimed that “[t]he Utilities did not submit comments [at the time of EPA's October 26, 2010, rulemaking] because U.S. EPA approved Ohio Adm. Code 3745-17-03 in its entirety as the notice indicated. Had the Utilities understood that these rules were selective to subpart (A), the Utilities may have submitted comments on this proposal.”

Response: As an initial matter, EPA notes that the commenter's claim supports the Agency's view that the error in the October 26, 2010, action engendered confusion and misunderstanding among some affected parties. The commenter speculates that had EPA's October 26, 2010, rulemaking used preamble language and a codification that more clearly identified that the only revision to OAC 3745-17-03 that EPA was approving was the cross reference in OAC 3745-17-03(A), it might have commented. Presumably those comments would have urged EPA to approve portions of OAC 3745-17-03 that were outside the scope and purpose of the applicable state submission, which with respect to OAC 3745-17-03 only requested the revision of the cross reference in OAC 3745-17-03(A). In such a hypothetical situation, EPA presumably would have responded to those comments by explaining that it was not approving any revision to OAC 3745-17-03 beyond the cross reference in OAC 3745-17-03(A) and that comments beyond that narrow issue were beyond the scope of the October 26, 2010, rulemaking.

In any case, the commenter has now had the opportunity to comment on the very issue that it speculated it would have commented on under the 2010 conditions it hypothesized. The proposed rulemaking for this error correction action proposed to find that rulemaking on portions of OAC 3745-17-03 other than OAC 3745-17-03(A) in the 2010 air quality standards rulemaking would have been outside the scope of that rulemaking. Thus, EPA solicited comment on precisely the issue that the commenter speculated it would have commented on in its hypothesized 2010 circumstances, i.e., whether or not rulemaking on OAC 3745-17-03(B) would have been an appropriate part of the 2010 rulemaking on Ohio's air quality standards submittal. Of note is that in the actual, present circumstances, the commenter had the benefit of express EPA statements in the February 7, 2014, proposal, stating that any action in response to Ohio's submittal of September 10, 2009, on portions of OAC 3745-17-03 other than OAC 3745-17-03(A) would be outside the scope of the rulemaking because it would not be pertinent to the SIP revision request that EPA was considering.

Finally, EPA notes that the commenter did in fact comment, to urge approval of revisions in OAC 3745-17-03(B), without contesting EPA's view that these provisions are outside the scope of the relevant state submission and EPA's rulemaking thereon. As explained in the proposal for this action, those revisions were not at issue in its October 26, 2010, rulemaking and are not at issue in this error correction. EPA regrets the inconvenience to all parties that arose from the error in its October 26, 2010, rulemaking. However, the point here is that it is unnecessary to speculate on how the commenter would have commented on the October 26, 2010, rulemaking had that rulemaking more clearly stated that the only revision to OAC 3745-17-03 under consideration was the revision to the cross reference in OAC 3745-17-03(A). The commenter has now had the opportunity to comment on the applicable issues, and EPA is addressing its comments here.

Comment: The commenter also objected to EPA's statements in the proposal for this action that it is correcting what is essentially a typographical error. The commenter asserted that this “correction is not trivial.”

Response: The commenter did not explain its substantive grounds for objecting to EPA's proposed error correction. The commenter omits any rationale for why the significance of the provisions of OAC 3745-17-03(B) would justify labeling the mistaken codification in EPA's October 26, 2010, rulemaking as anything other than an error or why, regardless of label, the misleading codification does not warrant correction. For example, the commenter implies that a significance criterion applies in judging whether a statement is in error, as if an action with significant ramifications cannot be in error or that errors cannot have significant consequences. However, the commenter offered no rationale for why the misstatements in the October 26, 2010, rulemaking, whatever the significance of those misstatements, should not be considered to be in error.

EPA's proposed rulemaking provides extensive discussion of why EPA believes that the codification in its October 26, 2010, action was in error, including multiple reasons that demonstrate that EPA did not intend and could not have intended to approve provisions in OAC 3745-17-03 that were beyond the stated purpose of Ohio's submission, which with respect to OAC 3745-17-03 was only to revise the cross reference in OAC 3745-17-03(A). Conspicuously absent from the commenter's comments is any specific argument contesting EPA's rationale for this error correction, be it to question EPA's interpretation of Ohio's September 10, 2009, submission, to dispute that EPA did not intend and could not have intended to take action on OAC 3745-17-03(B), or to challenge EPA's assertion that in any case there has been no legally valid action on OAC 3745-17-03(B) because EPA has not addressed pertinent comments on its prior proposed disapproval of that separate revision (including comments that the commenter itself attests to making).

Comment: The commenter states, “the Utilities disagree with U.S. EPA's assertion that its `correction' does not allow substantive comments on Ohio Adm. Code 3745-17-03.” The commenter further asserted that “U.S. EPA's action is essentially making Ohio's SIP more stringent than it was when it approved Ohio Adm. Code 3745-17-03 in 2010. . . . [Therefore,] the Utilities believe that substantive comments on Ohio Adm. Code 3745-17-03 are proper and should be considered by U.S. EPA.”

Response: These comments misrepresent EPA's assertion, mischaracterize EPA's action, and provide no rationale for EPA to change its views on relevant matters. EPA's proposed rulemaking states: “any substantive revisions to OAC 3745-17-03, including any revisions to OAC 3745-17-03(B)(1), are not at issue in this rulemaking. Only comments regarding EPA's correction of the error in the October 26, 2010, action are germane to this rulemaking under section 110(k)(6).” The commenter may elect to make comments that are not germane, and the commenter has exercised its right to do so, though the commenter has not challenged EPA's proposed rationale as to the scope of comments that should be considered germane. For example, even if EPA's action could be misconstrued as a substantive revision to the approved SIP (which it is not), and whether the newer version of OAC 3745-17-03(B) is less stringent than the older version (as the commenter contended in these comments) or not (as the commenter contended in its attached comments from 2005), the commenter does not explain why this asserted change in stringency justifies predicating EPA's action to correct an error on the substantive merits of erroneously codified provisions. Therefore, EPA concludes that comments as to the substantive merits of OAC 3745-17-03(B) are not germane to this action, which only addresses the error that occurred in the October 26, 2010, action pertaining to Ohio EPA's submission regarding its air quality standards rules.

Similarly, the commenter mischaracterized EPA's proposed error action, asserting that EPA is hereby removing an approval of portions of OAC 3745-17-03 that, it asserted, EPA approved in the October 26, 2010, action. The proposed rulemaking explained at length that EPA cannot have approved any portion of 3745-17-03 in 2010 other than the cross reference in OAC 3745-17-03(A), and so the action EPA proposed clarifies the approved SIP without changing the substance of what has actually been approved. Again, the commenter provided no rationale for adopting its views as to the nature of EPA's proposed action rather than the views EPA proposed.

Comment: The commenter provided an extensive description of provisions in OAC 3745-17-03(B). The commenter also provided a history of this provision, including Ohio's submission of the provision to EPA in June 2003, EPA's proposal to disapprove the provision in June 2005, the (erroneous) appearance of EPA approving the provision on October 26, 2010, the EPA correction of this appearance on April 3, 2013, without reference to correction authority in Clean Air Act section 110(k)(6), a petition for EPA to reconsider this correction, and EPA's proposal published on February 7, 2014, to make this correction under the authority of Clean Air Act section 110(k)(6).

Response: EPA generally agrees with the commenters recitation of the facts, but does not agree with the implication that “appearing” to approve the revision means that it was in fact approved. Moreover, this portion of these comments provides background information and does not urge any changes to EPA's views underlying the relevant proposed action, and so no detailed review of this portion of these comments is warranted. Any history of the provisions of OAC 3745-17-03(B) should also note that Ohio (subsequent to these comments) has withdrawn its submission that sought approval of the provision.

Comment: The commenter stated that it “submit[ted] these comments for two reasons. First, we would like to briefly address EPA's comment that the COMS provision is `significant and substantive' and `would allow significantly more opacity during certain periods.' This appears to be a reference to [text in EPA's June 2005 proposed rulemaking (at 70 FR 36903), quoted in the comment].”

The commenter raised several objections to these EPA statements. The commenter asserted that the scenario EPA discussed in the June 2005 proposed disapproval, intended as an example case in which the revised version of OAC 3745-17-03(B) “allow[s] excess opacity on occasions that excess opacity is currently prohibited,” to reflect an unlikely pattern of operation that would not be expected to be identified as a violation using the reference method (Method 9) of the unrevised rule. “In summary, the alternative of continuous instrumental monitoring of in-stack opacity in lieu of periodic Method 9 visible emission observations may be `significant and substantive' in terms of imposing more stringent performance obligations, but it certainly [is] not a `significant and substantive' relaxation of the performance obligation where Method 9 is the SIP reference test for opacity.”

Response: The commenter is correct that the pertinent statement in the February 7, 2014, proposed rulemaking reflects the views expressed in the cited statement in EPA's June 27, 2005, proposed rulemaking. The commenter also observed that EPA has not completed rulemaking pursuant to this June 2005 proposed disapproval. EPA's purpose for making these statements in the proposal for this error correction was to provide context and to explain the significance of the error, not to take a substantive position. To be clear, in the June 2005 proposal, EPA proposed to find that the revised version of OAC 3745-17-03(B) would have allowed significantly more opacity during certain periods and that the state had failed to provide a section 110(l) or section 193 analysis to justify the resulting relaxation; subsequently, EPA received comments disputing that finding, and EPA has not yet taken final action on that proposal.

Because Ohio has withdrawn its June 2003 submission, however, EPA will be conducting no further rulemaking on that submission. Therefore, it is no longer germane to any ongoing rulemaking whether Ohio's June 2003 submission would have tightened or relaxed the stringency of Ohio's existing SIP. In any case, the desirability of clarifying the status of OAC 3745-17-03(B) is not contingent on any final judgment regarding the effect of previously submitted revisions to OAC 3745-17-03(B) on allowable opacity. In its February 7, 2014, proposal, EPA sought merely to explain why the error in its October 26, 2010, final rule warranted correction. Comments from the Ohio Utilities Group discussed above suggest that the provisions of OAC 3745-17-03(B), and the associated relaxation of requirements, are too important to be the subject of an error correction. These comments from the Chamber et al. argue that the provisions of OAC 3745-17-03(B) are not a “significant and substantive” relaxation of the opacity-related requirements and in fact may be a “significant and substantive” tightening of performance obligations. Regardless of these conflicting comments, three parties have concluded that the status of OAC 3745-17-03(B) is sufficiently important to comment on rulemaking proposing to clarify the status of this rule. Even aside from questions regarding the substantive consequences of revisions to OAC 3745-17-03(B), EPA seeks clarity regarding which rules have been approved into the SIP, especially for rules that prompt significant substantive interest. Consequently, EPA has concluded that it is important to clarify the scope of EPA's rulemaking on Ohio's submittal addressing air quality standards and to correct the errors in the October 26, 2010, action that created a misimpression that EPA had approved OAC 3745-17-03(B)as a part of the SIP.

Comment: The commenter also asked that EPA complete its rulemaking action on the June 2003 SIP revision that EPA addressed in the June 2005 proposed disapproval.

Response: Ohio has withdrawn the pertinent elements of its June 2003 SIP revision submission. Thus, no portion of this submission remains pending.

Pursuant to section 110(k)(6), EPA is determining that its October 26, 2010, rulemaking was in error to the extent that it appeared to approve revisions to OAC 3745-17-03 beyond the revision to the cross reference in OAC 3745-17-03(A). Through this action, EPA is clarifying that in the October 26, 2010, action, the Agency did not approve any revisions to OAC 3745-17-03 except for the specific revision to the cross reference in OAC 3745-17-03(A) requested by the state. But for that change, the currently applicable version of OAC 3745-17-03 in the Ohio SIP is the version effective in the state on January 31, 1998, approved by EPA on October 16, 2007. The currently applicable version of OAC 3745-17-03 in the Ohio SIP does not contain any revisions addressed in EPA's proposed approval and disapproval on June 27, 2005. This action establishes that the codification of EPA's October 26, 2010, action, in relevant part at 40 CFR 52.1870(c)(151)(i)(A), is clarified pursuant to the authority of Clean Air Act section 110(k)(6) to codify the approval of only the revised cross reference in OAC 3745-17-03(A) and not of any other portions of OAC 3745-17-03. In particular, EPA in that action did not approve any revisions related to OAC 3745-17-03(B).

On April 3, 2013, EPA used its authority under section 553 of the Administrative Procedures Act to amend the erroneous codification in its October 26, 2010, rulemaking without notice and comment rulemaking. In that rulemaking, EPA corrected the erroneous statements and the misleading codification to reflect more clearly that EPA had only approved the one narrow revision requested by the state in OAC 3745-17-03, i.e., the revision of the cross reference in OAC 3745-17-03(A). Thus, effective April 3, 2013, the Code of Federal Regulations has properly reflected the corrected codification. In response to a petition for reconsideration, EPA today is replacing that prior correction with an error correction pursuant to section 110(k)(6). Nevertheless, during the pendency of the current rulemaking pursuant to section 110(k)(6), EPA opted not to stay or revoke the correction action of April 3, 2013, to avoid exacerbating the misimpressions caused by the October 26, 2010, error. Therefore, the status quo is that the Code of Federal Regulations already reflects the corrected codification.

Ordinarily, a rulemaking establishing a corrected codification would include not just a preamble but would also include a codification section, in which the Office of the Federal Register is instructed to amend the applicable sections of the Code of Federal Regulations. However, this action involves circumstances in which the pertinent section of the Code of Federal Regulations already correctly reflects the EPA approved version of OAC 3745-17-03, as a result of action taken April 3, 2013. Conceptually, this action replaces the pertinent revisions to the Code of Federal Regulations promulgated on April 3, 2013, with identical revisions pursuant to this action. In practical terms, the net effect of this action is no change in the Code of Federal Regulations. It is inappropriate to provide a null set of instructions, to instruct the Office of the Federal Register to make no changes to the Code of Federal Regulations. Therefore, this action includes no instructions to the Office of the Federal Register, no requested revisions to the Code of Federal Regulations, and indeed no codification section. As a result, the Office of the Federal Register's records will show the pertinent revisions as being made April 3, 2013. Nevertheless, this action should be viewed as replacing those corrections, promulgated under the authority of Administrative Procedures Act section 553, with identical corrections, promulgated under the authority of Clean Air Action section 110(k)(6).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. This action merely corrects an error in EPA's prior action 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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 (Public Law 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. 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)).

Background

The Secretary of the Interior (Secretary) is responsible for implementation of the Native American Graves Protection and Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including the issuance of appropriate regulations implementing and interpreting its provisions. NAGPRA addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations in certain human remains, funerary objects, sacred objects, and objects of cultural patrimony, for which the Act uses the broader term “cultural items” (25 U.S.C. 3001(3)). Pursuant to Section 13 of NAGPRA (25 U.S.C. 3011), the Department of the Interior (Department) published the initial rules to implement NAGPRA in 1995 (60 FR 62158, December 4, 1995); those rules are now codified at 43 CFR part 10. Subsequently, the Department published additional rules concerning:

• Civil penalties (68 FR 16354, April 3, 2003);

• Future applicability (72 FR 13189, March 21, 2007); and

• Disposition of culturally unidentifiable human remains (75 FR 12378, March 15, 2010).

Section 3(b) of the Act (25 U.S.C. 3002 (b)) explicitly directs the Secretary to publish regulations for the disposition of unclaimed cultural items excavated or discovered on, and removed from, Federal lands after November 16, 1990. When we published the NAGPRA regulations on December 4, 1995, we reserved 43 CFR 10.7 for this purpose.

This rule is limited to Federal lands, as NAGPRA provides that ownership or control of any cultural item excavated or discovered on, and removed from, tribal land after November 16, 1990, is in either a known lineal descendant (for human remains and associated funerary objects) or in the Indian tribe from whose tribal land the cultural items were removed, and does not require the lineal descendant or the Indian tribe to make a claim for the cultural items.

Consultation regarding a proposed rule for § 10.7 began in 2005. On three separate occasions, we consulted with representatives of Indian tribes, Native Hawaiian organizations, museums, and scientific organizations. We also consulted with the Native American Graves Protection and Repatriation Review Committee (Review Committee) during its scheduled meetings in Albuquerque, NM (November 2005); Washington, DC (April 2007); Phoenix, AZ (October 2007); and Washington, DC (November 2010).

We published a proposed rule on October 29, 2013 (78 FR 64436). Public comment was invited for a 60-day period, ending December 30, 2013. The proposed rule also was posted on the National Park Service's National NAGPRA Program Web site. The Review Committee commented on the record on the proposed rule at a public meeting on November 6, 2013.

During the comment period, we received 27 written comments on the proposed rule, contained in 20 separate submissions from 5 Indian tribes, 1 Indian organization, 1 non-federally recognized Indian group, 1 Native Hawaiian organization, 1 museum, 1 scientific organization, 3 Federal entities, 6 individual members of the public, and 1 anonymous commenter. All relevant comments on the proposed rule were considered during the final rulemaking.

Comment 1: Four commenters stated that the definition of unclaimed cultural items should include the phrase “as used in § 10.7 of this part.”

Our Response: The term “unclaimed cultural items” is used only in § 10.7 and therefore the specific reference is not needed.

Comment 2: Three commenters stated that the definition of unclaimed cultural items should be expanded and the difference between the categories of unclaimed cultural items be clarified. One of these commenters added that the definition should provide a timeframe that structures how long cultural items must be held by the Federal agency prior to being classified as unclaimed.

Our Response: We agree. In the final rule, we have revised the definition of unclaimed cultural items and clarified the difference between the categories. We have included a timeframe.

Comment 3: Four commenters stated that the definition of unclaimed cultural items imposes an inappropriate time limit on Indian tribes and Native Hawaiian organizations to make claims for cultural items. One of these commenters added that the definition assumes Federal agencies have been proactive and have provided notice to all potential claimants.

Our Response: A potential claimant may make a claim for unclaimed cultural items at any time prior to transfer or reinterment under this rule. While the rule establishes a timeframe for cultural items to become unclaimed, there is no timeline imposed for Federal agencies to transfer or to reinter cultural items. We feel the timeframes established by the definitions in this final rule strike an appropriate balance between assuring Federal agencies that the NAGPRA process will end at a certain time and granting non-claimant Indian tribes and Native Hawaiian organizations an opportunity to request the transfer of these cultural items.

Comment 4: One commenter stated that the definition of “disposition” in § 10.2(g)(5) should be changed to include disposition of unclaimed cultural items.

Our Response: We agree. In this final rule, we have added a new paragraph at § 10.2 (g)(5)(iv).

Comment 5: One commenter stated that a notice under § 10.6(c) is only required upon “proposed disposition,” and not upon the determination of an Indian tribe entitled to priority of custody. Therefore, publication of a notice under § 10.6(c) cannot be a determining factor in the definition of unclaimed cultural items.

Our Response: A notice under § 10.6(c) is not dependent on an actual claim but is dependent on the existence of a potential claimant. Under section 3(a) of the Act (25 U.S.C. 3002(a)), ownership or control of cultural items is transferred to the Indian tribe or Native Hawaiian organization which “upon notice, states a claim. . .” The notice required by § 10.6(c) precedes a claim from an Indian tribe or Native Hawaiian organization and is dependent only upon the identification of one or more Indian tribes or Native Hawaiian organizations or lineal descendants as a potential claimant. Furthermore, that notice is the only communication to the public during the disposition process. Consequently, publication of a notice under § 10.6(c) is an appropriate factor for determining when cultural items become unclaimed.

Comment 6: One commenter stated that reasonableness is not a criterion for transfer of custody under the disposition process established in § 10.6. The definition at § 10.2(h)(2)(ii) should read: “No Indian tribe with priority of custody has been identified.”

Our Response: We believe, as a general matter, that Federal agencies should use reasonable efforts in complying with the requirements of NAGPRA. In addition, section 3(a)(2)(C) of the Act (25 U.S.C. 3002 (a)(2)(C)) explicitly states that the cultural affiliation of cultural items is established using a reasonableness standard.

Comment 7: One commenter stated that the term “has” is better defined by adding “possession or control” after it.

Our Response: A Federal agency does not have “possession” or “control” of cultural items that are excavated or discovered on, and removed from, Federal lands after November 16, 1990, as the terms “possession” and “control” are defined in § 10.2. Instead, the Federal agency acts as caretaker or temporary custodian for these cultural items.

Comment 8: One commenter stated that the phrase “a list of the items” should be replaced with “a list of currently held items.” The commenter also suggested that “the nature” of unclaimed items be better explained.

Our Response: The sentence introducing § 10.7(b)(1) in this final rule (previously § 10.7(a)(1)) states the unclaimed cultural items on the list are items that the Federal agency “has.” We believe that the use of the present tense in the introductory sentence makes clear that the reporting requirement refers to unclaimed cultural items currently held by the Federal agency. The required description of “the nature of the unclaimed cultural items” is the same as the current requirement in a notice under 43 CFR 10.6(c). The purpose of both documents is the same—to provide information adequate to allow lineal descendants, Indian tribes, or Native Hawaiian organizations to determine their interest in the cultural items under these regulations.

Comment 9: One commenter stated that there is nothing in the statute that allows the National NAGPRA Program to create and maintain an inventory of cultural items that have been removed from Federal lands after 1990, unclaimed or otherwise. The commenter suggested that Federal agencies should convey periodic notices of the existence of unclaimed cultural items to potential claimants but not report those items to the National NAGPRA Program.

Our Response: Section 3(b) of the Act (25 U.S.C. 3002(b)) directs the Secretary to promulgate regulations for the disposition of unclaimed cultural items in consultation with the Native American Graves Protection and Repatriation Review Committee and other interested parties. The Review Committee recommended that the National NAGPRA Program maintain a database of unclaimed cultural items. We have included the Review Committee's recommendation in this final rule. The list of unclaimed cultural items submitted to the National NAGPRA Program promotes transparency in the disposition of unclaimed cultural items by providing information adequate to allow lineal descendants, Indian tribes, or Native Hawaiian organizations to determine their interest in cultural items under these regulations.

Comment 10: Seven commenters stated that the list of unclaimed cultural items should include additional information. Suggestions included the specific site of removal, the specific types of cultural items, the names of those consulted on the cultural items, and any potential claimants. One of these commenters added that the list of unclaimed cultural items should identify which items have potential claimants and which items have no identified potential claimants.

Our Response: The proposed rule required that the list include a description of the place of discovery and the nature of the unclaimed cultural items, and these requirements are retained in this final rule at § 10.7(b)(1). We agree that information on consultation efforts under 43 CFR 10.5 could be useful for purposes of disposition of cultural items. In response to these comments, this final rule requires that the list include a summary of consultation efforts under § 10.5. A summary of consultation efforts inherently will include the identification of potential claimants. We have qualified that the description of the place of discovery or excavation, and removal, should generally protect any sensitive information.

Comment 11: Three commenters questioned the date of the reporting requirement for Federal agencies to submit a list of unclaimed cultural items to the National NAGPRA Program. One of these commenters added that it would be difficult for Federal agencies to track when reports were required, as cultural items might have varying reporting deadlines. Two of these commenters added that the requirement should be shortened and lists should be submitted within one year or 90 days after excavation or discovery and removal.

Our Response: By adding to the definition of unclaimed cultural items the specific circumstances under which cultural items become unclaimed in this final rule, we adjusted the dates for submitting a list of unclaimed cultural items to the Manager of the National NAGPRA Program. For those cultural items that meet the definition of unclaimed cultural items on the effective date of the regulation, the list must be submitted within one year. We feel this provides Federal agencies with sufficient time to prepare this list. For items that meet the definition of unclaimed cultural items after the effective date of the regulation, the list must be submitted within one year after the cultural items meet the definition. This allows for Federal agencies to submit lists of unclaimed cultural items at regular intervals. To simplify the reporting requirements, a Federal agency could submit a list of all unclaimed cultural items that met the definition for unclaimed cultural items during the previous year and still be compliant with the regulation.

For example, under the definition at § 10.2 (h)(2)(ii), if a Federal agency:

In this example, a list submitted on January 18, 2019, of all unclaimed cultural items that met the definition during calendar year 2018 would satisfy the requirements of this final rule.

Alternately, under the definition at § 10.2 (h)(2)(i), if a Federal agency:

In this example, a list submitted on January 17, 2020, of all unclaimed cultural items that met the definition during calendar year 2019 would satisfy the requirements of this final rule.

Comment 12: Five commenters stated that the National NAGPRA Program should be required to post the lists submitted by Federal agencies to its Web site.

Our Response: The National NAGPRA Program publishes information on summaries, inventories, and notices on its Web site, and will publish similar information for these lists.

Comment 13: Seven commenters requested an expansion of the language in the proposed rule, including adding language directly from 36 CFR part 79 in the text of § 10.7. Some of these commenters noted that some cultural items under NAGPRA do not fit within the definitions established by 36 CFR part 79.

Our Response: This final rule requires Federal agencies to care for and manage all unclaimed cultural items under NAGPRA in a manner consistent with but not pursuant to 36 CFR part 79. Even unclaimed cultural items that do not fit the definitions of 36 CFR part 79 must be provided with the same level of care and management as those items that are covered by 36 CFR part 79. There is no need to include the text at 36 CFR part 79 in this final rule.

Comment 14: One commenter suggested that, in addition to 36 CFR part 79, unclaimed cultural items should be cared for in accordance with a Plan of Action if one was prepared under § 10.5(e).

Our Response: As long as there is no conflict with this final rule, a Plan of Action prepared under § 10.5(e) related to the care and management of unclaimed cultural items that is consistent with 36 CFR part 79 and already in place may still be used.

Comment 15: Three commenters stated that there should be respect for cultural practices of potential claimants to unclaimed cultural items.

Our Response: We agree, and in the final rule we clarified that the potential claimants referenced in this section are the potential claimants listed in a notice of intended disposition.

Comment 16: Five commenters stated that the word “feasible” was vague and should be replaced with “permitted under law.”

Our Response: There are no applicable laws that require consideration or respect of potential claimants to unclaimed cultural items. The suggested wording is more restrictive and could result in less consideration for the traditions of potential claimants. We believe that the word “feasible” provides Federal agencies with appropriate discretion to respect the desires of potential claimants listed in a notice of intended disposition, and better aligns with the existing requirements at § 10.5(e)(7).

Comment 17: Five commenters approved of the process for transferring control of unclaimed cultural items to other Indian tribes or Native Hawaiian organizations. One of these commenters suggested concurrence with any disposition plan should be required from any non-claiming Indian tribes. One of these commenters suggested that tribal laws or customs of the Indian tribe with the closest cultural relationship to the unclaimed cultural items should be followed. One of these commenters suggested the word “another” before Indian tribe or Native Hawaiian organization should not be used and “an” should be substituted.

Our Response: The transferee of unclaimed cultural items will have the right to control the disposition of the cultural items, as no potential claimant will have made a claim. Consequently, we have specified in this final rule that the transfer of cultural items is conditioned on the transferee agreeing to accept transfer and treat the cultural items according to the transferee's own laws and customs. Also, in this final rule we have specified that the transferee in question is an Indian tribe or Native Hawaiian organization that is not an Indian tribe or Native Hawaiian organization with a potential claim to the unclaimed cultural items.

Comment 18: Three commenters stated that transfer should be allowed to Indian groups that are not federally recognized, and that § 10.7 should include the same authority to transfer as applied to culturally unidentifiable human remains in 43 CFR 10.11(c)(2)(ii)(A).

Our Response: Because this was not proposed, including non-federally recognized Indian groups among the potential transferees of cultural items is beyond the scope of this final rule. This comment will be considered during any proposed revision of these regulations in their entirety.

Comment 19: One commenter stated that reinterment should be noted as satisfactory for the requirement to care and manage cultural items consistent with 36 CFR part 79.

Our Response: Title 36 CFR part 79 does not address reinterment. Under this final rule, the requirement to care for and manage unclaimed cultural items consistent with 36 CFR part 79 does not impinge on, or otherwise affect, the discretion of a Federal agency to transfer or reinter cultural items for which it acts as caretaker or temporary custodian.

Comment 20: Three commenters stated that the draft rule unfairly emphasized reinterment and precluded options for other disposition strategies, including cooperative curation agreements or future claims. One of these commenters also felt allowing reinterment violates tribal rights as established in the Act in section 11 (25 U.S.C. 3009).

Our Response: This final rule provides a Federal agency with the discretion to transfer or reinter unclaimed cultural items. It does not require either of these actions. Also, this final rule is consistent with sections 3(e) and 11(1)(B) of the Act (25 U.S.C. 3002(e) and 3009(1)(B), respectively). In order to take the actions under sections 3(e) and 11(1)(B) of the Act, an Indian tribe or Native Hawaiian organization must first have control of the cultural items in question.

Comment 21: Five commenters stated that the draft rule should put more emphasis on reinterment and require Federal agencies to justify not reinterring unclaimed cultural items. One of these commenters suggested that Federal agencies should use field documentation procedures and immediately rebury any human remains discovered on Federal land.

Our Response: This final rule provides a Federal agency with the discretion to reinter unclaimed human remains or funerary objects according to applicable interment laws or policy. Requiring a Federal agency to immediately rebury human remains or funerary objects removed from Federal land contradicts section 3(a) of the Act (25 U.S.C. 3002(a)).

Comment 22: Two commenters stated that reinterment should require the concurrence of any potential claimants or consulting Indian tribes and Native Hawaiian organizations and any reinterment should be done in accordance with the tribal laws and customs of the potential claimants. One of these commenters felt any application of state law in reinterment should be restricted.

Our Response: An Indian tribe or Native Hawaiian organization that has been identified as a potential claimant in a notice of intended disposition but has not made a claim does not control the right of disposition of human remains or funerary objects. The concurrence of such potential claimants or consulting Indian tribes and Native Hawaiian organizations with a proposed reburial of unclaimed human remains or funerary objects, and the conduct of the reburial in accordance with their laws and customs, are not legally required. Moreover, requiring a Federal agency to obtain the concurrence of the potential claimants very likely would be infeasible where there are multiple such Indian tribes or Native Hawaiian organizations, each having different laws and customs. However, this rule does not preclude a Federal agency from consulting with any potential claimant on the proposed reinterment of unclaimed human remains or funerary objects and on having the reburial conducted in accordance with their laws and customs. As for restricting the application of State law to the reinterment of unclaimed human remains or funerary objects, we have eliminated altogether the provision in the proposed rule allowing for the offer of human remains or funerary objects for disposition according to State or other law or policy.

Comment 23: Seven commenters stated that any notice related to the transfer or reinterment of unclaimed cultural items should be published in the Federal Register, either in addition to or in place of a notice in a newspaper. Three of these commenters suggested posting the notices to the National NAGPRA Program Web site in addition to other forms of notice.

Our Response: We believe that requiring notices to be published in newspapers is consistent with other notice requirements currently required under the regulations at § 10.6 implementing section 3 of the Act (25 U.S.C. 3002). This comment will be considered during any proposed revision of these regulations in their entirety. In light of technological changes since the promulgation of § 10.6, we have provided a second form of notice of proposed transfer of cultural items or reinterment of unclaimed human remains or funerary objects through postings on the National NAGPRA Program's Web site.

Comment 24: One commenter stated that the notice should include the previous determination of the Indian tribe or Native Hawaiian organization with priority of custody, if any (e.g., aboriginal land determination), and not only the “affiliation, if any, of the unclaimed cultural items.”

Our Response: In response to this comment, the final rule requires that the notice include a summary of consultation efforts under § 10.5. A summary of consultation efforts inherently will include the identification of any potential claimants.

Comment 25: One commenter stated that a newspaper with general circulation “in the area in which each potential claimant now resides” is impractical. Disposition could possibly be to all Indian tribes or NHOs with standing under the Act.

Our Response: In the case where potential claimants have been identified, the locations of the newspapers where a notice of proposed transfer or reinterment is published under this final rule are identical to the locations of the newspapers where a notice of intended disposition was published under § 10.6(c). In the case of cultural items for which no potential claimant could be identified, the location where a notice of proposed transfer or reinterment is published is only the area in which the cultural items were excavated or discovered, and removed, as there are no potential claimants for these cultural items.

Comment 26: One commenter stated that there was no process provided if an Indian tribe or Native Hawaiian organization asserts priority of ownership or control under section 3(a) of the Act and § 10.6 . If the claim is determined to be valid, disposition would occur under § 10.6(c) and not under § 10.7, as the cultural items would no longer be unclaimed.

Our Response: If an Indian tribe or Native Hawaiian organization states a valid claim for cultural items appearing in a notice of proposed transfer or reinterment under § 10.7, the cultural items are no longer unclaimed. As the Federal agency will no longer have the discretion to proceed with a transfer or reinterment under this final rule, the disposition of these cultural items will proceed under § 10.6(c). If the valid claim is from an Indian tribe or Native Hawaiian organization already listed in a notice of intended disposition, and if there are no competing claims, the Federal agency will transfer the right of control over the cultural items to the claimant. If the valid claim is from an Indian tribe or Native Hawaiian organization not already listed in a notice of intended disposition, the Federal agency will follow the notice provision under § 10.6(c) prior to any transfer.

Comment 27: Two commenters suggested moving the statement on the purpose of this rule from the end of the rule to the beginning of the rule.

Our Response: We agree. Proposed rule § 10.7(e) has been renumbered § 10.7(a) in this final rule.

Based on the preceding comments and responses, the drafters have made the following changes to the proposed rule language:

• § 10.2(g)(5)(iv). This section specifies that disposition of unclaimed cultural items is established under § 10.7 of these regulations.

• § 10.2(h)(2)(i). This section specifies that cultural items are unclaimed under the following circumstances: The Federal agency publishes a notice of intended disposition, and the agency has not received any claim from an Indian tribe or Native Hawaiian organization, or any response from a lineal descendant to the notice within one year of publishing the notice.

• § 10.2(h)(2)(ii). This section specifies that cultural items are unclaimed under the following circumstances: The Federal agency knows, or has reason to know, that cultural items have been excavated or discovered on, and removed from Federal lands; for two years, the Federal agency has tried to reasonably identify any Indian tribe or Native Hawaiian organization, or a lineal descendant, as a potential claimant, and at the end of the two-year period, the Federal agency cannot reasonably identify an Indian tribe or Native Hawaiian organization, or a lineal descendant, as a potential claimant.

• § 10.7(a) of the proposed rule has been renumbered § 10.7(b) in this final rule.

• § 10.7(a)(1) has been renumbered § 10.7(b)(1) in this final rule. This section specifies that the list of unclaimed cultural items must include a summary of consultation efforts under § 10.5, and adjusts the deadline for submitting a list of unclaimed cultural items. For those cultural items that meet the definition of unclaimed cultural items on the effective date of the regulation, a list of items must be submitted within one year. For items that meet the definition of unclaimed cultural items after the effective date of the regulation, a list of items must be submitted within one year of the cultural items becoming unclaimed.

• § 10.7(a)(3) has been renumbered § 10.7(b)(3) in this final rule. This section specifies that the potential claimants who are referenced are the potential claimants listed in a notice of intended disposition.

• § 10.7(b) of the proposed rule has been renumbered § 10.7(c) in this final rule. This section specifically identifies the Indian tribe or Native Hawaiian organization to which control may be transferred under this rule as an Indian tribe or Native Hawaiian organization that does not have a potential claim to the cultural items. Also, this section specifies that such transfer is conditioned on the transferee agreeing to accept transfer and treat the cultural items according to the transferee's own laws and customs.

• § 10.7(c) of the proposed rule has been renumbered § 10.7(d) in this final rule. This section specifies that, under this rule, any reinterment of unclaimed human remains or funerary objects by the Federal agency must be according to applicable interment laws. Also, the provision in the proposed rule regarding the offer of human remains or funerary objects for disposition according to State or other law has been eliminated.

• § 10.7(d) of the proposed rule has been renumbered § 10.7(e) in this final rule.

• § 10.7(d)(3) has been renumbered § 10.7(e)(3) in this final rule. This section specifies that the Manager of the National NAGPRA Program will post information received from the Federal agency under § 10.7(e)(2) of this rule, on the National NAGPRA Program's Web site.

• § 10.7(e) has been renumbered § 10.7(a) in this final rule.

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

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

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule only pertains to the disposition of cultural items in the custody of a Federal agency for which potential claimants have chosen not to take ownership or control, or when no potential claimants have been identified. Thus, this rule does not constitute a significant economic burden.

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

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

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

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

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

This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required. No taking of property will occur as a result of this rule.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. In accordance with the Presidential Memorandum entitled “Government to Government Relations with Native American Tribal Governments” (59 FR 22951, April 29, 1994); Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, Nov. 9, 2000); the President's Memorandum for the Heads of Executive Departments and Agencies on the Implementation of Executive Order 13175 (Nov. 5, 2009); and the Secretary of the Interior's Order No. 3317—Department of the Interior Policy on Consultation With Indian Tribes (Dec. 1, 2011); we have evaluated this rule and determined that it has a potential effect on federally recognized Indian tribes. The rule was developed in consultation with the Native American Graves Protection and Repatriation Review Committee, which includes members nominated by Indian tribes and traditional religious leaders. Formal consultation with the Review Committee was held on November 16-17, 2005, in Albuquerque, NM; on April 19-20, 2007, in Washington, DC; on October 15-16, 2007, in Phoenix, AZ; on May 15-16, 2008, in De Pere, WI; on October 30-31, 2009, in Sarasota, FL; and on November 18-19, 2010, in Washington, DC. Also, the Review Committee had an opportunity to comment on the proposed rule following publication, which it did at a public meeting on November 6, 2013, in Mt. Pleasant, MI.

Formal consultation with Indian tribes began on November 15, 2005, in Albuquerque, NM, and continued on April 18, 2007, in Washington, DC, and on October 14, 2007, in Phoenix, AZ. We have fully considered tribal and Review Committee comments in the final rule.

The Office of Management and Budget has approved the information collection requirements in 43 CFR part 10 and assigned OMB Control Number 1024-0144. This rule does not contain any new information collections that require OMB approval under the Paperwork Reduction Act. An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because the rule is covered by a categorical exclusion under 43 CFR 46.210(i): “Policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the National Environmental Policy Act.

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

The proposed rule and this final rule were prepared by staff of the National NAGPRA Program, National Park Service; Office of Regulations and Special Park Uses, National Park Service; and Office of the Solicitor, Division of Parks and Wildlife and Division of Indian Affairs, Department of the Interior.

In consideration of the foregoing, the Department amends 43 CFR part 10 as follows:

This is a summary of the Commission's Order, ET Docket No. 15-170, FCC 15-135, adopted October 16, 2015 and released October 19, 2015. The full text of this document is available on the Commission's Internet site at www.fcc.gov. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554.

1. The Commission took action to temporarily waive the requirements in §§ 2.1203 and 2.1205 of the Commission's rules that govern the submission of information in connection with imported Radio Frequency (RF) devices, effective July 1, 2016, through December 31, 2016, for the following reasons:

2. Section 2.1203 of the Commission's rules states that no RF device may be imported unless the importer or ultimate consignee (or their designated customs broker) declares that the device meets the conditions of entry set forth in our importation rules. Section 2.1205 provides two ways to make this declaration. At ports of entry where electronic filing with the U.S. Customs and Border Protection (CBP) is not available, the importer completes FCC Form 740 and attaches a copy to its customs import papers. Where electronic customs filing is available, the importer may submit the information electronically as part of its entry documentation submission to CBP. Currently, nearly all submissions are made electronically through the CBP's Automated Commercial System (ACS), and very few paper filings are submitted.

3. CBP is deploying a new electronic filing system, the Automated Commercial Environment (ACE), which will not have the capability for importers to submit the FCC-required Form 740 information electronically. FCC-related importation filings can continue to be submitted electronically via ACS or paper until July 1, 2016. According to the current CBP schedule, as of July 1, 2016, CBP will no longer accept filings made via ACS.

4. The Commission adopted a Notice of Proposed Rulemaking (NPRM) in the above-captioned proceedings to update the rules that govern the evaluation and approval of RF devices, 80 FR 46900 (August 6, 2015). In the NPRM, the Commission proposed to amend § 2.1203 and remove § 2.1205, thereby eliminating the declaration and associated filing requirements. While the ongoing rulemaking may ultimately result in the elimination, modification, or retention of the §§ 2.1203 and 2.1205 requirements, the overall rulemaking proceeding is quite complex and it is possible that the Commission will be unable to reach and publish a final determination before July 1, 2016, the date upon which CBP will no longer accept the electronic filing of FCC Form 740s via ACS.

5. If the Commission retains or modifies the Form 740 information filing requirement, parties will be precluded from filing electronically after July 1, 2016 outside of the ACE system. The ACE system would have to be modified to render that system capable of accepting FCC Form 740s, which would require appreciable amount of time and expense and may not be able to be implemented by July 1. This would mean that for some period of time after July 1, all the Form 740 filings would be made via paper. Such a result would be impractical. The Commission estimated that it would receive approximately 20,000 such forms each week, with the same number of forms submitted to CBP. In addition, numerous importers would also have to file with FDA or other agencies that may regulate a given device. Given the circumstances, the Commission found that, absent a waiver, there would be significant burdens associated with the ACE implementation for Form 740, for the CBP and FCC. If the Commission ultimately eliminates the Form 740 requirements, any efforts to modify ACE to accommodate Form 740 will have been unnecessary. On the other hand, if the Commission determines to require the Form 740 information filing, the necessary changes to the ACE can be made at that time.

6. The timing of the Commission's open proceeding also introduces considerable regulatory uncertainty for the importation community that further supports the need for a waiver. Based on discussions with manufacturers with considerable importation volumes and import brokers and brokers' associations, the Commission determined that it could take a number of months for the members of the importation community to tailor their existing documentation and related processes to any new importation regime—even one that lifts burdens. Accordingly, this community needs to know whether its members should begin making the necessary preparations for compliance with a paper-based regime in July, or whether they can continue using their existing processes with some assurance that they will not be expected to make a flash cut to a paper filing process come July.

7. Section 1.3 of the Commission's rules provides that “[a]ny provision of the rules may be waived by the Commission on its own motion or on petition if good cause therefor is shown.” For the above stated reasons, the Commission found good cause to temporarily waive the above-described filing requirements in §§ 2.1203 and 2.1205 of the rules effective July 1, 2016, and extending for six months. Assuming that the waiver remains necessary as of July 1, the Commission anticipates that any difficulties associated with not gathering data through Form 740 will be relatively limited in time and scope. The Commission will work with CBP to draw on other data to satisfy any informational needs that are currently provided through the operation of §§ 2.1203 and 2.1205. If the Commission decides to retain the requirement that importers submit some or all of the information required by §§ 2.1203 and 2.1205, it will set forth appropriate revised filing procedures at that time. To the extent that a waiver remains necessary as of July 1, our action only affects the manner in which the Commission collects the information about imported RF equipment that is associated with the requirements of §§ 2.1203 and 2.1205. The general proscription against importation of non-authorized equipment is unaffected and will remain fully in effect.

8. For the foregoing reasons, the Commission will temporarily waive the requirements of §§ 2.1203 and 2.1205, effective July 1, 2016. The waiver will remain in effect through December 31, 2016. The Commission also delegated authority to the Office of Engineering and Technology to extend this date, but no later than the effective date of any decision regarding §§ 2.1203 and 2.1205 in the NPRM proceeding.

9. Pursuant to sections 1, 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 301, 302, 303(e), 303(f), and 303(r), and Section 1.3 of the Commission's rules, 47 CFR Section 1.3, that §§ 2.1203 and 2.1205 of the Commission's rules and Regulations, ARE TEMPORARILY WAIVED, effective July 1, 2016, to the Federal Communications Commission.