Federal Register Vol. 80, No.60,

This interim rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), 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. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule increases the quantity of Native spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year, which began on June 1, 2014, and ends on May 31, 2015.

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 quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year under the Far West spearmint oil marketing order. Prior to this rule, the salable quantity and allotment percentage for Native spearmint oil was initially established at 1,090,821 pounds and 46 percent, respectively, in a final rule published May 8, 2014 (79 FR 26359). The salable quantity and allotment percentage was subsequently increased to 1,280,561 pounds and 54 percent in an interim rule published January 22, 2015 (80 FR 3142). This interim rule further increases the Native spearmint oil salable quantity from 1,280,561 pounds to 1,351,704 pounds and the allotment percentage from 54 percent to 57 percent. This action is anticipated to be the last revision of the Native spearmint oil salable quantity and allotment percentage established under the order for the 2014-2015 marketing year.

Under the volume regulation provisions of the order, the Committee meets each year to adopt a marketing policy for the ensuing year. When the Committee's marketing policy considerations indicate a need for limiting the quantity of spearmint oil available to the market to establish or maintain orderly marketing conditions, the Committee submits a recommendation to the Secretary for volume regulation.

Volume regulation under the order is effectuated through the establishment of a salable quantity and allotment percentage applicable to each class of spearmint oil handled in the production area during a marketing year. The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of oil is derived by dividing the salable quantity by the total industry allotment base for that same class of oil. The total industry allotment base is the aggregate of all allotment base held individually by producers. Producer allotment base is the quantity of each class of spearmint oil that the Committee has determined is representative of a producer's spearmint oil production. Each producer is allotted a pro rata share of the total salable quantity of each class of spearmint oil each marketing year. Each producer's annual allotment is determined by applying the allotment percentage to the producer's individual allotment base for each applicable class of spearmint oil.

The full Committee met on November 6, 2013, to consider its marketing policy for the 2014-2015 marketing year. At that meeting, the Committee determined that marketing conditions indicated a need for volume regulation of both classes of spearmint oil for the 2014-2015 marketing year. The Committee recommended salable quantities of 1,149,030 pounds and 1,090,821 pounds, and allotment percentages of 55 percent and 46 percent, respectively, for Scotch and Native spearmint oil. A proposed rule to that effect was published in the Federal Register on March 14, 2014 (79 FR 14441). Comments on the proposed rule were solicited from interested persons until March 31, 2014. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2014-2015 marketing year was published in the Federal Register on May 8, 2014 (79 FR 26359).

Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, the full eight member Committee met again on September 11, 2014, to consider pertinent market information on the current supply, demand, and price of spearmint oil. After some deliberation, the Committee recommended increasing the 2014-2015 marketing year Scotch spearmint oil salable quantity from 1,149,030 pounds to 1,984,423 pounds and the allotment percentage from 55 percent to 95 percent. An interim rule to that effect was published in the Federal Register on October 31, 2014 (79 FR 64657).

The full Committee met again on November 5, 2014, for a regularly scheduled annual meeting to evaluate the current year's volume control regulation and to adopt a marketing policy for the 2015-2016 marketing year. After thorough discussion with regards to the current marketing conditions for Native spearmint oil, the Committee recommended revising the previously established 2014-2015 marketing year Native spearmint oil salable quantity and allotment percentage. Subsequently, in an interim rule published in the Federal Register on January 22, 2015 (80 FR 3142), the salable quantity for Native spearmint oil was increased from 1,090,821 pounds to 1,280,561 pounds and the allotment percentage was increased from 46 percent to 54 percent.

The full Committee met again on February 18, 2015, for a regularly scheduled meeting where it again evaluated the current year's volume control regulation. At the meeting, the Committee assessed the current market conditions for spearmint oil in relation to the revised salable quantities and allotment percentages established for the 2014-2015 marketing year. The Committee considered a number of factors, including the current and projected supply, estimated future demand, production costs, and producer prices for all classes of spearmint oil. The Committee determined that the recently revised salable quantity and allotment percentage in effect for Native spearmint oil for the 2014-2015 marketing year should be further increased to take into account the unanticipated rise in market demand for that class of spearmint oil.

Therefore, the Committee recommended increasing the Native spearmint oil salable quantity from 1,280,561 pounds to 1,351,704 pounds and the allotment percentage from 54 percent to 57 percent. The recommendation to increase the salable quantity and allotment percentage passed unanimously.

Thus, taking into consideration the following discussion, this rule makes additional amounts of Native spearmint oil available to the market by further increasing the salable quantity and allotment percentage previously established under the order for the 2014-2015 marketing year. This rule increases the Native spearmint oil salable quantity 71,143 pounds, to 1,351,704 pounds, and raises the allotment percentage 3 percent points, to 57 percent. Such additional oil will become available to the market by releasing Native spearmint oil held by producers in the reserve pool. As of May 31, 2014, the Committee records show that the reserve pool for Native spearmint oil contained 446,086 pounds of oil.

The increase in the salable quantity as a result of this rule represents an additional 71,143 pounds of Native spearmint oil being made available to the market. However, as some individual producers do not hold Native spearmint oil from previous year's production in the reserve pool, the Committee expects that only 48,769 pounds of additional Native spearmint oil will actually be made available to the spearmint oil market. The relatively high salable quantity resulting from this action, as compared to the actual quantity of spearmint oil that will be made available to the market, is necessary to ensure that a sufficient quantity of Native spearmint oil is available to fully supply the market. Producers that do not have additional Native spearmint oil in inventory (oil held in the reserve pool) will not be able to utilize the additional annual allotment issued to them as a result of this action and such additional annual allotment will go unused.

At the February meeting, the Committee staff reported that demand for Native spearmint oil continues to be greater than anticipated. Committee records indicate that 2014-2015 marketing year sales through the end of January 2015, the most recent full month recorded, are 148,325 pounds higher than for the same period in the 2013-2014 marketing year and 211,163 pounds higher than the average sales for the same period for the years 2009-2013. The Committee now estimates trade demand for Native spearmint oil for the 2014-2015 marketing year to be approximately 1,443,899 pounds, up from the 1,300,000 pounds initially estimated in the fall of 2013, and the 1,341,000 pounds estimated at the Committee's November 2014 meeting. If realized, this quantity of trade demand would be just 19,872 pounds less than the quantity of Native spearmint oil available under the volume control levels implemented in January 2015 (1,463,771 pounds available prior to this rule minus 1,443,899 pounds demanded = 19,872 pounds). The increased quantity of Native spearmint oil (48,769 pounds) actually made available to the market as a result of this action would ensure that market demand is fully satisfied in the current year and that there would be approximately 68,641 pounds of Native spearmint oil salable inventory available to the market for the start of the 2015-2016 marketing year, which begins on June 1, 2015.

In making the recommendation to increase the salable quantity and allotment percentage of Native spearmint oil, the Committee considered all currently available information on the price, supply, and demand of spearmint oil. The Committee also considered reports and other information from handlers and producers in attendance at the meeting. Lastly, the Committee manager presented information and reports that were provided to the Committee staff by handlers and producers who were not in attendance at the February 18, 2015, meeting.

This action increases the 2014-2015 marketing year Native spearmint oil salable quantity by 71,143 pounds, to a total of 1,351,704 pounds. However, as mentioned previously, the net effect of the increase will be much less than the calculated increase due to the amount of actual oil individual producers have available to market from reserve pool inventory. The Committee estimates that this action will actually make an additional 48,769 pounds of Native spearmint oil available to the market. That amount, combined with the 89,872 pounds of salable Native spearmint oil that the Committee estimates is currently available to the market, will make a total of 138,641 pounds available to be marketed through the remainder of the marketing year. The total supply of Native spearmint oil that the Committee anticipates actually being available to the market over the course of the 2014-2015 marketing year will be increased to 1,512,540 pounds. Actual sales of Native spearmint oil for the 2013-2014 marketing year totaled 1,341,555 pounds.

The Committee estimates that this action will result in 68,641 pounds of salable Native spearmint oil being carried into the 2015-2016 marketing year. In addition, the Committee expects that 248,602 pounds of Native spearmint oil will still be held in reserve pool stocks by producers after this increase. These inventory levels are low in comparison to historical levels, but are well within the range that the Committee believes to be appropriate moving forward. In addition, the Committee believes that the current Native spearmint oil market situation will stimulate production of Native spearmint oil in the coming years, further ensuring that the market will be adequately supplied in the future.

As mentioned previously, when the original 2014-2015 marketing policy statement was drafted, handlers estimated the demand for Native spearmint oil for the 2014-2015 marketing year to be 1,300,000 pounds. The Committee's initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2014-2015 marketing year was based on that estimate. The Committee did not anticipate the increase in demand for Native spearmint oil that the market is currently experiencing and did not make allowances for it when the marketing policy was initially adopted. At the February 18, 2015, meeting, the Committee revised its estimate of the current trade demand to 1,443,899 pounds. The Committee now believes that the supply of Native spearmint oil available to the market under the previously revised salable quantity and allotment percentage would be insufficient to satisfy the current level of demand for oil at reasonable price levels. The Committee further believes that the increase in the salable quantity and allotment percentage effectuated by this action is vital to ensuring an adequate supply of Native spearmint oil is available to the market moving forward.

As previously stated, it is anticipated that this action will make 48,769 pounds of the Native spearmint oil held in the reserve pool available to the market. However, to achieve that desired net effect under the current supply conditions in the industry, it is necessary for the salable quantity and allotment percentage established under the volume regulation provisions of the order to be set at artificially high levels. The Committee records show that some producers do not hold Native spearmint oil in reserve. Given the process by which volume regulation is effectuated under the order, only those producers with Native spearmint oil in the reserve pool will be able to utilize the additional annual allotment that is issued as a result of this rule. Likewise, producers that do not have Native spearmint oil reserve oil from prior years' production will not have any Native spearmint oil inventory to offer to the market, regardless of how much additional annual allotment is issued to those producers. As such, the Committee expects that approximately 31 percent of the increased salable quantity and allotment percentage for Native spearmint oil may go unused.

As an example, assume Producer A has 2,000 pounds of Native spearmint oil allotment base. In addition, assume that during the 2014-2015 marketing year Producer A produced 920 pounds of Native spearmint oil and held 220 pounds of excess Native spearmint oil in reserve from production in prior years. Given that the initial 2014-2015 marketing year allotment percentage was established at 46 percent, Producer A could market all 920 pounds of the current year production (46 percent allotment percentage × 2,000 pounds of allotment base), leaving him/her with 220 pounds in the reserve pool that was initially not available to market. Without an increase in the allotment percentage, the producer would not have been able to market any of the 220 pounds of reserve oil and the oil would have continued to have been held in the reserve pool for marketing in subsequent years. For Producer A to market all 1,140 pounds of his/her current year Native spearmint oil production and reserve inventory, the allotment percentage needs to be increased by 11 percent (8 percent plus 3 percent) to a total of 57 percent (57 percent × 2,000 pounds = 1,140 pounds). An increase in the allotment percentage of anything less than 11 percent would fail to release all of the Native spearmint oil that the producer holds in the reserve pool. The increase in the allotment percentage may be accomplished in several steps, but has a cumulative effect with regards to the release of spearmint oil held in the reserve pool.

In contrast, assume that another producer, Producer B, likewise has 2,000 pounds of Native spearmint oil allotment base and produced 920 pounds of Native spearmint oil during the 2014-2015 marketing year. However, Producer B has no Native spearmint oil held in reserve. As in the first case, Producer B could market all of his/her current year production under the initial allotment percentage of 46 percent. However, any subsequent increase in the allotment percentage would have no impact on Producer B, as the producer has no reserve pool oil available to deliver to the market. As a result, any additional annual allotment allocated to Producer B after an increase in the allotment percentage would go unfilled.

The Committee acknowledges that the relatively high salable quantity, and the corresponding high allotment percentage, will create a quantity of Native spearmint oil annual allotment for which no Native spearmint oil will actually be available to market. The Committee estimates that a 3 percent increase in the allotment percentage and a 71,143 pound increase in the salable quantity is required to make the desired 48,769 pounds of Native spearmint reserve pool oil available to the market. Accordingly, the Committee expects that 22,374 pounds of the recommended 71,143 pound increase in salable quantity will go unfilled. This quantity of underutilized salable quantity has been factored into the Committee's recommendation.

The Committee's stated intent in the use of marketing order volume control regulation is to keep adequate supplies available to meet market needs and to maintain orderly marketing conditions. With that in mind, the Committee developed its recommendation for increasing the Native spearmint oil salable quantity and allotment percentage for the 2014-2015 marketing year based on the information discussed above, as well as the summary data outlined below.

(A) Estimated 2014-2015 Native Allotment Base—2,371,350 pounds. This is the estimate on which the original 2014-2015 salable quantity and allotment percentage was based.

(B) Revised 2014-2015 Native Allotment Base—2,371,410 pounds. This is 60 pounds more than the estimated allotment base of 2,371,350 pounds. The difference is the result of annual adjustments made to the allotment base according to the provisions of the order.

(C) Original 2014-2015 Native Allotment Percentage—46 percent. This was unanimously recommended by the Committee on November 6, 2013.

(D) Original 2014-2015 Native Salable Quantity—1,090,821 pounds. This figure is 46 percent of the original estimated 2014-2015 allotment base of 2,371,350 pounds.

(E) Adjusted Initial 2014-2015 Native Salable Quantity—1,090,849 pounds. This figure reflects the salable quantity actually available at the beginning of the 2014-2015 marketing year. This quantity is derived by applying the initial 46 percent allotment percentage to the revised allotment base of 2,371,410.

(F) First Revision to the 2014-2015 Native Salable Quantity and Allotment Percentage:

(1) Initial Increase in the Native Allotment Percentage—8 percent. The Committee recommended an 8 percent increase at its November 5, 2014, meeting. The revision was published in the Federal Register on January 22, 2015 (80 FR 3142).

(2) Revised 2014-2015 Native Allotment Percentage—54 percent. This number was derived by adding the increase of 8 percent to the initially established 2014-2015 allotment percentage of 46 percent.

(3) Revised 2014-2015 Native Salable Quantity—1,280,561 pounds. This amount is 54 percent of the revised 2014-2015 allotment base of 2,371,410 pounds.

(G) Second Revision to the 2014-2015 Native Salable Quantity and Allotment Percentage:

(1) Increase in Native Allotment Percentage—3 percent. The Committee unanimously recommended a 3 percent increase at its February 18, 2015, meeting.

(2) Revised 2014-2015 Native Allotment Percentage—57 percent. This number is derived by adding the 3 percent increase to the previously revised 2014-2015 allotment percentage of 54 percent.

(3) Revised 2014-2015 Native Salable Quantity—1,351,704 pounds. This amount is 57 percent of the revised 2014-2015 allotment base of 2,371,410 pounds.

(4) Computed Increase in the 2014-2015 Native Salable Quantity as a Result of this Revision—71,143 pounds. This figure is 3 percent of the revised 2014-2015 allotment base of 2,371,410 pounds.

(5) Expected Actual Increase in the 2014-2015 Native Spearmint Oil Available to the Market—48,769 pounds. This amount is based on the Committee's estimation of Native spearmint oil actually held in the reserve pool by producers that may enter the market as a result of this rule.

Scotch spearmint oil is also regulated by the order. As mentioned previously, a salable quantity and allotment percentage for Scotch spearmint oil was established in a final rule published in the Federal Register on May 8, 2014 (79 FR 26359) and subsequently increased in an interim rule published in the Federal Register on October 31, 2014 (79 FR 64657). At the February 18, 2015, meeting, the Committee considered the current production, inventory, and marketing conditions for Scotch spearmint oil. After receiving reports from the Committee staff and comments from the industry, the consensus of the Committee was that the previously increased salable quantity and allotment percentage for Scotch spearmint oil was appropriate for the current market conditions. As such, the Committee took no further action with regards to Scotch spearmint oil for the 2014-2015 marketing year.

This rule relaxes the regulation of Native spearmint oil and will allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2014-2015 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2014-2015 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The increase in the Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for that class of oil. In determining anticipated market needs, the Committee considered changes and trends in historical sales, production, and demand.

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 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 8 spearmint oil handlers subject to regulation under the order, and approximately 39 producers of Scotch spearmint oil and approximately 91 producers of Native spearmint oil in the regulated production area. 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 having annual receipts of less than $750,000 (13 CFR 121.201).

Based on the SBA's definition of small entities, the Committee estimates that only two of the eight handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 22 of the 39 Scotch spearmint oil producers and 29 of the 91 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, the majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The use of volume control regulation allows the spearmint oil industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Without volume control regulation, the supply and price of spearmint oil would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and could drive end users to source flavoring needs from other markets, potentially causing long-term economic damage to the domestic spearmint oil industry. The marketing order's volume control provisions have been successfully implemented in the domestic spearmint oil industry since 1980 and provide benefits for producers, handlers, manufacturers, and consumers.

This rule increases the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year, which ends on May 31, 2015. The 2014-2015 Native spearmint oil salable quantity was initially established at 1,090,821 pounds and the allotment percentage initially set at 46 percent. The salable quantity was subsequently increased to 1,280,561 pounds and the allotment percentage to 54 percent. This rule further increases the Native spearmint oil salable quantity to 1,351,704 pounds and the allotment percentage to 57 percent.

Based on the information and projections available at the February 18, 2015, meeting, the Committee considered a number of alternatives to this increase. The Committee not only considered leaving the salable quantity and allotment percentage unchanged, but also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information and input from all interested industry participants, and believes that the levels recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to satisfactorily meet market demand.

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. 0581-0178, Vegetable and Specialty Crop Marketing Orders. 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 rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil 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.

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

Further, the Committee's meeting was widely publicized throughout the spearmint oil industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the February 18, 2015, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on 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 Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on a change to the salable quantity and allotment percentage for Native spearmint oil for the 2014-2015 marketing year. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee'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) This rule increases the quantity of Native spearmint oil that may be marketed during the marketing year, which ends on May 31, 2015; (2) the current quantity of Native spearmint oil may be inadequate to meet demand for the 2014-2015 marketing year, thus making the additional oil available as soon as is practicable will be beneficial to both handlers and producers; (3) the Committee recommended these changes at a public meeting and interested parties had an opportunity to provide input; and (4) 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 985 is amended as follows:

This rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), 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.

The handling of spearmint oil produced in the Far West is regulated by the order and is administered locally by the Committee. Under the authority of the order, salable quantities and allotment percentages were established for both Scotch and Native spearmint oil for the 2014-2015 marketing year. However, early in the 2014-2015 marketing year, it became evident to the Committee and the industry that demand for Scotch spearmint oil was greater than previously projected and an intra-seasonal increase in the salable quantity and allotment percentage for Scotch spearmint oil was necessary to adequately supply the increased demand. Therefore, this rule continues in effect the rule that increased the Scotch spearmint oil salable quantity from 1,149,030 pounds to 1,984,423 pounds and the allotment percentage from 55 percent to 95 percent.

In an interim rule published in the Federal Register on October 31, 2014, and effective June 1, 2014, through May 31, 2015 (79 FR 64657, Doc. No. AMS-FV-13-0087, FV14-985-1A IR), § 985.233 was amended to reflect the aforementioned increases in the salable quantity and allotment percentage for Scotch spearmint oil for the 2014-2015 marketing year.

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 8 spearmint oil handlers subject to regulation under the order, and approximately 39 producers of Scotch spearmint oil and approximately 91 producers of Native spearmint oil in the regulated production area. 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 having annual receipts of less than $750,000 (13 CFR 121.201).

Based on the SBA's definition of small entities, the Committee estimates that only two of the eight handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 22 of the 39 Scotch spearmint oil producers and 29 of the 91 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, the majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The use of volume control regulation allows the spearmint oil industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Without volume control regulation, the supply and price of spearmint oil would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and could drive end users to source their flavoring needs from other markets, potentially causing long-term economic damage to the domestic spearmint oil industry. The order's volume control provisions have been successfully implemented in the domestic spearmint oil industry since 1980 and provide benefits for producers, handlers, manufacturers, and consumers.

This rule increases the quantity of Scotch spearmint oil that handlers may purchase from or handle on behalf of producers during the 2014-2015 marketing year, which ends on May 31, 2015. The 2014-2015 Scotch spearmint oil salable quantity was initially established at 1,149,030 pounds and the allotment percentage initially set at 55 percent. This rule increases the Scotch spearmint oil salable quantity to 1,984,423 pounds and the allotment percentage to 95 percent.

The Committee reached its decision to recommend an increase in the salable quantity and allotment percentage for Scotch spearmint oil after careful consideration of all available information. With the increase, the Committee believes that the industry will be able to satisfactorily meet the current market demand for this class of spearmint oil. This rule amends the salable quantities and allotment percentages previously established in § 985.233. Authority for this action is provided in §§ 985.50, 985.51, and 985.52 of the order.

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. 0581-0178, Vegetable and Specialty Crop Marketing Orders. 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 rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil 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. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the September 11, 2014, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

Comments on the interim rule were required to be received on or before December 30, 2014. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-13-0087-0003.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (79 FR 64657, October 31, 2014) will tend to effectuate the declared policy of the Act.

Accordingly, the interim rule that amended 7 CFR part 985 and that was published at 79 FR 64657 on October 31, 2014, is adopted as a final rule, without change.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to Pacific Aerospace Limited Model 750XL airplanes. The NPRM was published in the Federal Register on December 8, 2014 (79 FR 72564). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 72564, December 8, 2014) 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 the 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 (79 FR 72564, December 8, 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 72564, December 8, 2014).

We reviewed Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/074, Issue 2, dated November 4, 2014. The service bulletin describes procedures for installing a second attitude indicator or enabling the reversionary mode on a Sandel SN3500 electronic horizontal situation indicator (EHSI), if installed, whichever is applicable. This service information is reasonably available; see ADDRESSES for ways to access this service information.

We estimate that this AD will affect 17 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $3,500 per product.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $68,170, or $4,010 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 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 by searching for and locating Docket No. FAA-2014-1002; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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 BAE Systems (Operations) Limited Model 4101 airplanes. The NPRM published in the Federal Register on September 3, 2014 (79 FR 52270). The NPRM was prompted by a report of the failure, due to overheat, of a bracket on which the EP for the generator and propeller de-ice systems is located. The NPRM proposed to require an inspection of the affected EPs and attachment structure for damage, an inspection of the earth cables of the generator and propeller de-ice system for signs of overheating and arcing damage, a torque check of the affected EP stiff nuts, an electrical high current bonding check of the bracket, and corrective actions if necessary. We are issuing this AD to detect and correct an overheat failure of the EPs for the generator and propeller de-ice system, and possible degradation of the wing front spar cap and/or web, which could affect the structural integrity of the wing.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0006, dated January 7, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0619-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 52270, September 3, 2014) or on the determination of the cost to the public.

BAE Systems (Operations) Limited has issued Inspection Service Bulletin J41-24-043, Revision 3, dated June 16, 2014. This service bulletin states that “this revision does not require rework of the modification(s) embodied by earlier revision of this service bulletin.” We have revised paragraphs (g) through (k) of this AD to reference this service information. We have revised paragraph (l) of this AD to give credit for actions done prior to the effective date of this AD using BAE Systems (Operations) Limited Inspection Service Bulletin J41-24-043, Revision 2, dated August 21, 2013.

We reviewed the relevant data, 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 52270, September 3, 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 52270, September 3, 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 BAE Systems (Operations) Limited Service Bulletin J41-24-043, Revision 3, dated June 16, 2014. The service information describes procedures for an inspection of the earth post EP2 (left) and earth post EP4 (right) on the structure for the left and right power plants. This service information is reasonably available; see ADDRESSES for ways to access this service information.

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

We also estimate that it would take about 4 work-hours 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 proposed AD on U.S. operators to be $1,360, or $340 per product.

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.

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-2014-0619; 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 737-100, 737-200, 737-200C, 737-300, 737-400, and 737-500 series airplanes. The NPRM published in the Federal Register on May 28, 2014 (79 FR 30500). The NPRM was prompted by reports of cracking in the lower corners of the forward entry doorway and the upper corners of the airstairs cutout. The NPRM proposed to require inspections for cracking of the forward entry doorway and airstairs cutout, and corrective actions if necessary. The NPRM also proposed to provide terminating action for the repetitive inspections. We are issuing this AD to detect and correct cracks in the lower corners of the forward entry door cutout and the upper corners of the airstairs cutout, which could progress and result in an inability to maintain cabin pressurization.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 30500, May 28, 2014) and the FAA's response to each comment.

Aviation Partners Boeing stated that accomplishing the installation of winglets per supplemental type certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/082838ee177dbf62862576a4005cdfc0/$FILE/ST01219SE.pdf) does not affect the actions specified in the NPRM (79 FR 30500, May 28, 2014).

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD (79 FR 30500, May 28, 2014) as paragraph (c)(1) in this AD and added new paragraph (c)(2) to this AD to state that installation of STC ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/082838ee177dbf62862576a4005cdfc0/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Southwest Airlines (SWA) requested that the NPRM (79 FR 30500, May 28, 2014) be revised to clarify that the initial and repetitive inspections specified in paragraph (g)(1) of the proposed AD would not be required for locations that are common to existing repairs that were installed using the Boeing Model 737 structural repair manual (SRM) repairs identified in Part 3, “Permanent Repair,” of Paragraph 3.B., “Work Instructions,” of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1083, Revision 4, dated December 18, 2013. As an alternative to this clarification, SWA suggested that guidance be provided on how to address the existing repairs since the inspections proposed in paragraph (g)(1) of the proposed AD cannot be accomplished in the repaired areas.

SWA observed that the applicability blocks in Repair 12 and Repair 13 of Boeing 737-300/400/500 SRM 53-10-01 state that the inspections identified in Boeing Special Attention Service Bulletin 737-53-1083, Revision 4, dated December 18, 2013, are not necessary for the repaired areas.

We agree that the inspections required by paragraph (g)(1) of this AD cannot be accomplished at locations where certain repairs have been installed. We have added a new paragraph (g)(3) to this AD and redesignated the subsequent paragraph as (g)(4). Paragraph (g)(3) of this AD clarifies that accomplishment of a permanent repair terminates the repetitive inspections required by paragraph (g)(1) of this AD for the repaired area only.

SWA requested that the NPRM (79 FR 30500, May 28, 2014) be revised to provide operators the option to request alternative inspection instructions from Boeing for areas with existing repairs that were approved by a Boeing Authorized Representative (AR). The inspections proposed in paragraph (g)(1) of the NPRM cannot be accomplished in areas with existing repairs.

We do not agree to revise this AD to include a provision to provide operators the option to request alternative inspection instructions from Boeing. If there are existing repairs that were approved by a Boeing AR, and those existing repairs prevent accomplishment of the inspections required by paragraph (g)(1) of this AD, 14 CFR 39.17 of the Federal Aviation Regulations requires an affected operator to obtain an AMOC from the FAA. Upon publication of this AD, the Manager of the Los Angeles Aircraft Certification Office will consider granting AMOC authority for this AD to the Boeing Commercial Airplanes Organization Designation Authorization (ODA).

Boeing requested that paragraph (g)(2) of the NPRM (79 FR 30500, May 28, 2014) be revised to specify that the inspections required by paragraph (g)(1) of the NPRM are not required for Groups 1 and 2 airplanes that have been repaired using the service information identified in paragraph (g)(2)(i), (g)(2)(ii), or (g)(2)(iii) of the NPRM. Boeing noted that, as currently written, paragraph (g)(2) of the NPRM would not require inspection of the unrepaired lower entry door and upper airstair corners and would contradict the inspections in the service information, which could lead to an unsafe condition. Boeing also pointed out that the inspection zones specified in the following service information do not include the repaired area(s).

• Boeing Service Bulletin 737-531083, Revision 1, dated October 25, 1985.

• Boeing Service Bulletin 737-531083, Revision 2, dated March 17, 1988.

• Boeing Service Bulletin 737-531083, Revision 3, dated December 7, 1989.

For the reasons provided by the commenter we agree to revise paragraph (g)(2) of this AD to specify that “[T]he inspections required by paragraph (g)(1) of this AD are not required in the repaired area.”

Boeing requested that paragraph (g)(1) of the NPRM (79 FR 30500, May 28, 2014) be revised to specify the locations that need to be inspected. The commenter stated that, as currently written, the inspection methods are specified but not the inspection locations. Boeing Special Attention Service Bulletin 737-53-1083, Revision 4, dated December 18, 2013, provides different inspection methods based on the location of the inspection. Boeing suggested that the revision to paragraph (g)(1) state “[D]o the inspections specified in paragraphs (g)(1)(i), (g)(1)(ii), (g)(1)(iii), and (g)(1)(iv) of this AD and in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1083, Revision 4. . . .”

We do not agree it is necessary to specify inspection locations because paragraph (g)(1) of this AD already requires operators to do the inspections in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014. These accomplishment instructions include the specific inspection methods and the inspection locations. No change has been made to this AD in this regard.

ANA and Europe Airpost requested that the material in Boeing Information Notice 737-53-1083 R04 IN 03 to Boeing Alert Service Bulletin 737-53-1083 be included in the final rule. The commenters noted that, based on the material in Boeing Information Notice 737-53-1083 R04 IN 03 to Boeing Service Bulletin 737-53-1083, the inspection of the skin doubler required by paragraph (g)(1)(iii) of the NPRM (79 FR 30500, May 28, 2014) would no longer be applicable to Group 4 airplanes. The commenters explained that Boeing Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014, would incorporate the material in Boeing Information Notice 737-53-1083 R04 IN 03. The commenters pointed out that operators might have to request AMOCs from the FAA if the final rule did not include this material and was issued prior to Boeing's release of Boeing Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014.

We agree that the material in Information Notice 737-53-1083 R04 IN 03 to Boeing Service Bulletin 737-53-1083 is incorporated in Boeing Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014. Since the NPRM (79 FR 30500, May 28, 2014) was published, Boeing has issued and we have reviewed Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014. We have revised this AD to include Boeing Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014, as an additional source of service information. We have also included a new paragraph (k) in this AD, and redesignated the subsequent paragraphs accordingly, to provide credit for accomplishment of certain actions before the effective date of this AD using Boeing Special Attention Service Bulletin 737-53-1083, Revision 4, dated December 18, 2013.

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:

• Αre consistent with the intent that was proposed in the NPRM (79 FR 30500, May 28, 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 30500, May 28, 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 Special Attention Service Bulletin 737-53-1083, Revision 5, dated July 22, 2014. The service information describes procedures for inspection of the forward entry doorway and airstairs doorway, modification, and repair. This service information is reasonably available; see ADDRESSES for ways to access this service information.

We estimate that this AD affects 132 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repair that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need this repair:

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:

Title IV of the Act (30 U.S.C. 1231 et seq.) established the AML program in order to address the extensive environmental damage caused by past coal mining activities. The AML program is funded primarily by a reclamation fee collected on each ton of coal produced. The money collected is placed in the Abandoned Mine Reclamation Fund (the “Fund”) and used to finance the reclamation of abandoned coal mines and for other authorized activities. In addition to moneys from the Fund, Title IV also provides for the use of some general Treasury moneys to fund reclamation projects and other authorized activities.

Section 405 of the Act, 30 U.S.C. 1235, allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On September 27, 2007, the Secretary of the Interior approved the Mississippi Plan. You can find background information on the Mississippi Plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the September 27, 2007, Federal Register (72 FR 54832). No prior amendments have been made to the Mississippi Plan (30 CFR part 924.20).

By letter dated August 11, 2014 (Administrative Record No. MS-0424), Mississippi certified to OSMRE that all coal-related impacts on abandoned mine lands within the State have been successfully addressed under SMCRA. Mississippi sent the request for concurrence with its certification at its own initiative. As indicated by our November 12, 2014, Federal Register (79 FR 67115) notice, we also construed this request for certification as an amendment to Mississippi's Plan. In addition to this current amendment, Mississippi will most likely be required to revise its plan again in the future to implement a program under section 411 of SMCRA.

We announced receipt of the proposed certification in the November 12, 2014, Federal Register (79 FR 67115). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the certification's adequacy. We did not receive any requests for a public hearing or meeting and, thus, did not hold one.

The public comment period ended on December 12, 2014. We did not receive any public comments.

On September 3, 2014, as required by 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the proposed Mississippi Plan amendment from various Federal agencies with an actual or potential interest in the Mississippi program (Administrative Record No. MS-0424-01). We did not receive any comments.

After a review of all of the relevant information, on December 18, 2014, the Director of OSMRE, in accordance with section 411(a)(1) of SMCRA (30 U.S.C. 1240(a)(1)) and 30 CFR 875.13(b) determined that Mississippi met all of the applicable criteria and concurred with Mississippi's certification (Administrative Record MS-0424-02). The Director's concurrence with Mississippi's certification of completion of coal reclamation means that Mississippi may now use funds provided under Title IV of SMCRA in accordance with section 411 of SMCRA and its current plan. In addition, as part of its certification and in accordance with 30 CFR 875.13(a)(3), Mississippi agrees to acknowledge and give top priority to any coal-related problem(s) that may be found or occur after submission of the certification.

In order to implement Mississippi's certification, we are amending the Federal regulations at 30 CFR part 924 that codify decisions concerning the Mississippi Plan. Given the technical nature of this rule, we find that delaying the effective date of this rule would be unnecessary and contrary to the public interest. This rule merely codifies the decision by the Director that became immediately effective on December 18, 2014, when he concurred in Mississippi's certification under section 411(a) of SMCRA. Therefore, we find good cause to waive the 30-day delay in effective date under 5 U.S.C. 553(d)(3).

This rule does not have significant takings implications because it is not a governmental action capable of interference with constitutionally protected property rights. A takings implication assessment is not required.

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

Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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. This rule is merely a technical amendment to the Mississippi regulations at 30 CFR Part 924 to denote that Mississippi is certified. As such, it does not implicate any of the considerations embodied in this executive order.

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.

This rule does not have Federalism implications. It will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally recognized Indian tribes and have determined that the rule does not have substantial direct effects 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.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is not considered significant under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

We have determined that the revisions in this rule are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969, as provided in 43 CFR 46.205(b). We have determined the rule is covered by the specific categorical exclusion listed in the Department of the Interior regulations at 43 CFR 46.210(i). That categorical exclusion covers regulations such as this one that are of an administrative or technical nature. 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 does not contain collections of information that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). As discussed above, the aggregate economic impact of this rulemaking on small business entities should be minimal.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Will not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) will 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 will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. As previously discussed, this rulemaking will not have a substantial economic impact on any entity.

For the reasons set out in the preamble, 30 CFR part 924 is amended as set forth below:

Background

The final regulations for 40 CFR part 49 subsections 49.4161 through 49.4168 that are the subject of this correction were finalized and published March 22, 2013 (78 FR 17836). A previous final rule published in the Federal Register at 77 FR 48878, August 15, 2012, published the interim provisions at 40 CFR part 49 subsections 49.140 through 49.147.

As published, the final regulations contain an error in the amendatory instruction and set-out text:

Accordingly, 40 CFR part 49 is corrected by making the following correcting amendment:

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. These SIP submissions are commonly referred to as “infrastructure” SIP submissions. Section 110(a) imposes the obligation upon states to make an infrastructure SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the infrastructure SIP for a new or revised NAAQS affect the content of the submission. The contents of such infrastructure SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2008 Lead NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous lead NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic structural SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The applicable infrastructure SIP requirements that are the subject of this rulemaking are listed below.1

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement, prevention of significant deterioration (PSD) and new source review (NSR).2

• 110(a)(2)(D): Interstate and international transport provisions.

• 110(a)(2)(E): Adequate personnel, funding, and authority.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency episodes.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(J): Consultation with government officials, public notification, and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

On November 18, 2014, EPA proposed to approve Mississippi's November 17, 2011, 2008 Lead NAAQS infrastructure SIP submission with the exception of provisions pertaining to PSD permitting in sections 110(a)(2)(C), prong 3 of D(i) and (J) and the majority requirements respecting significant portion of income for state boards of section 110(a)(2)(E)(ii). EPA proposed disapproval of the majority requirements respecting significant portion of income for state boards of section 110(a)(2)(E)(ii). EPA will address the PSD permitting requirements in sections 110(a)(2)(C), prong 3 of D(i) and (J) in a separate action. See 79 FR 68648.

In this rulemaking, EPA is taking final action to approve Mississippi'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 Lead NAAQS, with the exception of PSD permitting provisions in sections 110(a)(2)(C), prong 3 of D(i) and (J). EPA will be taking action on these elements in a separate action. Additionally, EPA is disapproving Mississippi's infrastructure submission with regard to the majority requirements respecting significant portion of income for state boards in section 110(a)(2)(E)(ii).

With the exception of provisions pertaining to PSD permitting requirements in sections 110(a)(2)(C), prong 3 of D(i) and (J) and the majority requirements respecting significant portion of income for state boards of section 110(a)(2)(E)(ii), EPA is taking final action to approve Mississippi's November 17, 2011, infrastructure submission because it addresses the required infrastructure elements for the 2008 Lead NAAQS. EPA is disapproving in part section 110(a)(2)(E)(ii) because a majority of board members that approve permits or enforcement orders in Mississippi may still derive a significant portion of income from persons subject to permits or enforcement orders issued by such Mississippi Boards, therefore, its current SIP does not meet the section 128(a)(1) majority requirements respecting significant portion of income. With the exceptions noted above MDEQ 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 Lead NAAQS is implemented, enforced, and maintained in Mississippi.

Under the CAA, 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, 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 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).

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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 May 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

On December 17, 2014 (79 FR 75104), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed full approval of the June 2012 SIP submittal which included revisions to the ACHD's NNSR program contained in the Pennsylvania SIP. The revisions to ACHD's NNSR program include ACHD's Article XXI which incorporates by reference Pennsylvania's NNSR provisions at 25 Pa. Code 127.201-127.217. The June 2012 SIP submittal also includes other changes to ACHD's NNSR program including changes to regulatory definitions and text, deletions of certain provisions, reordered paragraphs, and inclusion of plantwide applicability limit requirements.

ACHD amended the ACHD NNSR regulations at Article XXI, sections 2101 and 2102, to meet the requirements of 40 CFR 51.165. This approval action replaces the previous version of Article XXI which was approved into the Pennsylvania SIP on November 14, 2002. See 67 FR 68935.

The June 2012 SIP submittal includes amendments to the following sections of ACHD's Rules and Regulations, Article XXI: section 2101.20 (Definitions); section 2102.04 (Installation permits); section 2102.06 (Major Sources Locating in or Impacting a Nonattainment Area); and section 2102.08 (Emissions Offset Registration). After the June 2012 SIP submittal, PADEP had provided two letters clarifying the June 2012 SIP submittal. In a letter dated February 20, 2013, PADEP stated it had inadvertently redacted via strike out certain regulatory text from one provision in an ACHD regulation submitted for SIP approval in the June 2012 SIP submittal. PADEP accidentally deleted language at the end of subsection (f) of ACHD's Rules and Regulations, Article XXI, section 2102.06(f) (Requirements for Modeling). The February 20, 2013 PADEP letter requested EPA to include the full text of Article XXI, section 2102.06(f) for the revised Pennsylvania SIP including the text inadvertently deleted in the June 2012 SIP submission.1

In a second letter from PADEP dated June 27, 2014, PADEP modified the June 2012 SIP submittal and withdrew from its SIP submittal specific language from an ACHD regulation included in the June 2012 SIP submittal. The regulatory text PADEP withdrew from our consideration for inclusion in the Pennsylvania SIP was regulatory text in ACHD's Rules and Regulations, Article XXI, section 2102.06(b)(1), (b)(3)(a), (e), and (g) which provided a process for automatically incorporating additions, revisions, or deletions from Pennsylvania's NNSR regulations into ACHD's SIP effective on the date of revision to Pennsylvania's NNSR regulations.2 See 79 FR 75104 (discussing withdrawn text language). As a result of PADEP's June 27, 2014 letter, the language withdrawn by Pennsylvania from the June 2012 SIP submittal is not part of this rulemaking action. However, as a result of PADEP's February 20, 2013 letter, the inadvertently redacted language from ACHD's Rules and Regulations, Article XXI, section 2102.06(f) is part of this rulemaking language.

EPA's November 17, 2014 technical support document (TSD) explains in detail the revisions to the Pennsylvania SIP contained in the Commonwealth's June 2012 SIP submittal. The TSD is included in the docket for this rulemaking action and is available online at www.regulations.gov. The TSD also explains in detail the language withdrawn from ACHD's Article XXI, section 2102.06, includes EPA's analysis of the June 2012 SIP submittal, and provides support for the proposed and final actions on the submittal. Because ACHD incorporated by reference Pennsylvania's SIP approved NNSR regulations into ACHD's NNSR regulations, EPA stated in the NPR there was no need to re-evaluate the same NNSR elements EPA had already approved for the Pennsylvania SIP on May 14, 2012. As discussed in the NPR and in the TSD, the June 2012 SIP submittal includes revisions to ACHD's NNSR program which are consistent with the CAA, with currently promulgated Federal NNSR regulations, and with NNSR regulations which EPA has previously approved into Pennsylvania's SIP.

The NPR and TSD contain detailed discussions of the Pennsylvania SIP submission for Allegheny County and EPA's rationale for approving the June 2012 SIP submittal which addresses NNSR requirements in the CAA and its implementing regulations in 40 CFR 51.165 applicable as of the time of the June 2012 SIP submittal. Therefore, those discussions will not be restated here. No comments were received on the NPR.

EPA is approving as a revision to the Pennsylvania SIP the Commonwealth's June 2012 SIP submittal, as amended by PADEP in letters dated February 20, 2013 and June 27, 2014, which includes ACHD's NNSR regulations at Article XXI, sections 2101 and 2102.

In this rulemaking action, the EPA is finalizing regulatory text proposing to include in a final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ACHD regulations at Article XXI, sections 2101 and 2102 regarding Nonattainment New Source Review permitting requirements for Allegheny County. The EPA has made and will continue to make, these documents generally available through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 (Pub. L. 104-4);

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule 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. This rule 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 May 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).) This final rule approves Allegheny County's nonattainment new source review (NNSR) preconstruction air quality permit program.

40 CFR part 52 is amended as follows:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

Eight years after an area is redesignated to attainment, Clean Air Act (CAA) section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period.1 This maintenance plan must demonstrate continued compliance with the NAAQS during this second 10-year period. On July 13, 2011, the Governor of Montana's designee submitted to EPA a second 10-year maintenance plan for the Billings area for the CO NAAQS.

Along with the revised Billings Maintenance Plan, the State submitted a CO maintenance plan for the Great Falls, Montana maintenance area, and an alternative strategy for monitoring continued attainment of the CO NAAQS in all of the State's CO maintenance areas on July 13, 2011.2 The State submitted the alternative monitoring strategy in order to conserve resources by discontinuing the gaseous CO ambient monitors in both the Billings and Great Falls CO maintenance areas. We commented on the State's “Alternative Monitoring Strategy,” and the State submitted a revised version of the strategy, which incorporated our comments on June 22, 2012.

In a document published on December 2, 2014, we proposed approval of the Billings second 10-year maintenance plan and the associated “Alternative Monitoring Strategy.” (79 FR 71369)

The comment period for our December 2, 2014 proposed rule was open for 30 days. We did not receive any comments on the proposed action.

EPA is approving the revised Billings Maintenance Plan submitted on July 13, 2011. This maintenance plan meets the applicable CAA requirements and EPA has determined it is sufficient to provide for maintenance of the CO NAAQS over the course of the second 10-year maintenance period out to 2022.

EPA is also approving the State's Alternative Monitoring Strategy, submitted on June 22, 2012, for the Billings CO maintenance area. We are not approving application of the Alternative Monitoring Strategy in other areas of Montana with this action, as the Alternative Monitoring Strategy must be considered on a case-by-case basis specific to the circumstances of each particular CO maintenance area rather than broadly.

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, 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).

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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 May 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

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

The Clean Air Act at section 110(a)(2)(C) requires States to develop and implement permitting programs for attainment and nonattainment areas that cover both construction and modification of stationary sources. The EPA codified minimum requirements for these State permitting programs including public participation and notification requirements at 40 CFR 51.160—51.164.

On June 2, 2010, the Texas Commission on Environmental Quality (TCEQ) adopted amendments to 30 TAC Chapter 39, Public Notice; Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; and Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and corresponding revisions to the Texas SIP. Chairman Bryan W. Shaw, Ph.D., submitted these amendments to the EPA for approval as revisions to the Texas SIP in a letter dated July 2, 2010.

The EPA has taken final action on the majority of the July 2, 2010, SIP submittal for public notice. But, through inadvertent errors, we have neglected to complete the rulemaking process for the public notice applicability provisions for applications for PAL permits at 30 TAC section 39.402(a)(8), standard permits for concrete batch plants without enhanced controls at 30 TAC section 39.402(a)(11), and new and amended flexible permits at 30 TAC section 39.402(a)(4) and (a)(5).

The EPA proposed approval of the majority of the July 2, 2010, Texas SIP submittal on December 13, 2012, at 77 FR 74129. In this proposed rulemaking and our accompanying Technical Support Document, the EPA presented our evaluation and preliminary determination for the applicability of the public notice requirements for applications for PAL permits at 30 TAC 39.402(a)(8) and standard permits for concrete batch plants without enhanced controls at 30 TAC 39.402(a)(11). In both instances, we determined that the public notice provisions in Chapter 39 for each type of permit application were consistent with all applicable federal requirements and would be fully approvable into the Texas SIP. However, we neglected to include the specific provisions at 30 TAC 39.402(a)(8) and 39.402(a)(11) in our “Proposed Action” statement in the December 13, 2012, Federal Register document. While the public had the opportunity to review and comment on our evaluation and preliminary determination of approvability of these provisions, we never formally proposed these provisions for approval into the Texas SIP. As such, we did not finalize approval of 30 TAC 39.402(a)(8) and (a)(11) with the majority of the public notice provisions on January 6, 2014 at 79 FR 551.

Please see the EPA's December 13, 2012, proposed approval at 77 FR 74129 for our technical evaluation. The evaluation of the applicability of the public notice provisions for PAL permit applications can be found at page 74136. The evaluation of the applicability of the public notice provisions for permit applications for standard permits for concrete batch plants can be found at pages 74136-74140. The Technical Support Document dated December 12, 2012, available in the rulemaking docket for this action, provides additional details to support our determination that the public notice applicability provisions at 30 TAC 39.402(a)(8) and (a)(11) are consistent with federal requirements and fully approvable into the Texas SIP. We incorporate our previous evaluation of these two provisions into this action. We note that because the evaluation was included in our previous preamble and TSD, we did accept and respond to any comments received regarding the applicability of public notice provisions for applications for PALs and standard permits for concrete batch plants without enhanced controls. The EPA received and responded to comments about PAL public notice, but none specific to the applicability provision at 30 TAC section 39.402(a)(8). See 79 FR 551, at 556 and 557-558. Our evaluation and preliminary determination of approvability did not change as a result of these comments. The EPA did not receive any comments specific to the applicability of the public notice provisions for standard permits for concrete batch plants without enhanced controls at 30 TAC 39.402(a)(11); therefore our evaluation of that provision also remains unchanged.

Today's final action is merely correcting our previous error in failing to propose and finalize incorporation of these two provisions into the SIP on the basis of our previous technical evaluation and preliminary determination. The EPA has not changed our rationale. We continue to believe that 30 TAC 39.402(a)(8) and (a)(11) are fully approvable and it is our intent to include these provisions in the Texas SIP.

The EPA finalized a conditional approval of the Texas Flexible Permits Program on July 14, 2014, at 79 FR 40666. Our final action included conditional approval of the public notice applicability provisions for applications for new and amended flexible permits at 30 TAC sections 39.402(a)(4) and (a)(5) as submitted on July 2, 2010. As a result of this action, the public notice provisions at 30 TAC sections 39.402(a)(4) and (a)(5) became a part of the Texas SIP contingent upon the TCEQ satisfying the conditions of the December 9, 2013, commitment letter.1

In a subsequent proposed rulemaking on December 31, 2014, the EPA determined that the TCEQ satisfied all commitments from the December 9, 2013, commitment letter and thus we proposed to convert our final conditional approval of the Texas Flexible Permits Program to a full approval. See 79 FR 78752. However, we neglected to include the public notice applicability provisions at 30 TAC section 39.402(a)(4) and (a)(5) in that proposal.

Today's final action is merely correcting our previous error in failing to include the public notice applicability provisions for Flexible Permits in our December 2014 proposal to convert the conditional approval to a full approval. Because the EPA has determined that the TCEQ satisfied all commitments from the December 9, 2013, commitment letter, the public notice provisions for the Texas Flexible Permit program at 30 TAC sections 39.402(a)(4) and (a)(5) should be converted to a full approval. The conversion of the remainder of the conditionally approved Texas Flexible Permit program to a full approval will be addressed in a separate rulemaking.

We are approving through a direct final action revisions to the Texas SIP that pertain to the applicability of public notice provisions for PAL permit applications at 30 TAC section 39.402(a)(8) and for applications for standard permits for concrete batch plants without enhanced controls at 30 TAC section 39.402(a)(11). The EPA has determined that these two provisions are consistent with all applicable federal requirements for public notice requirements for PAL permit applications and minor NSR. Therefore, we are approving 30 TAC sections 39.402(a)(8) and 39.402(a)(11) into the Texas SIP as submitted on July 2, 2010. In today's direct final action, the EPA is also converting our final conditional approval to a final full approval for the applicability of public notice provisions for applications for new and amended flexible permits at 30 TAC sections 39.402(a)(4) and (a)(5). The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received.

Today's direct final rule will be effective on May 29, 2015 without further notice unless we receive relevant adverse comment by April 29, 2015.

If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address those public comments in a subsequent final rule based on the proposed rule. Any parties interested in commenting must do so at this time. The EPA will not institute a second comment period on this action. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of revisions to the Texas regulations concerning the applicability of public notice requirements as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the CAA, 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 Regional Administrator'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 (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).

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

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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the 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 May 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

Therefore, 40 CFR part 52 is amended as follows:

I. What rule is being withdrawn?

In the January 27, 2015 Federal Register (80 FR 4482) (FRL-9921-56), EPA added certain chemical substances to the list of chemical substances that are partially exempt from reporting additional information under the Chemical Data Reporting (CDR) rule. EPA later received an adverse comment that is pertinent to all six of the chemical substances that are the subject of that rule (EPA-HQ-OPPT-2014-0809). In accordance with the procedures described in the January 27, 2015 Federal Register document, EPA is withdrawing the direct final rule. EPA anticipates that it will publish, in the near future, a notice proposing to add these six chemical substances to the list of chemical substances that are partially exempt from reporting additional information under the Chemical Data Reporting (CDR) rule.

To access the docket, please go to http://www.regulations.gov and follow the online instructions using the docket ID number EPA-HQ-OPPT-2014-0809. Additional information about the Docket Facility is also provided under ADDRESSES in the January 27, 2015 Federal Register document. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

The reviews discussed in the January 27, 2015 Federal Register document are not applicable to this final rule because it is simply a withdrawal.

Pursuant to the CRA, 5 U.S.C. 801 et seq., EPA will submit a report containing this rule amendment 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 action in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

In FR Doc. 2015-03421, appearing on page 9649 in the Federal Register of Tuesday, February 24, 2015, the following corrections are made:

1. On page 9655, in the third column, the heading “List of Subjects in 5 CFR part 800” is revised to read, “List of Subjects in 45 CFR part 800.”

2. On page 9655, in the third column, the last paragraph should be revised to read:

“Accordingly, the U.S. Office of Personnel Management is revising part 800 to title 45, Code of Federal Regulations, to read as follows:”

Statutory Authority

This final rule is published under the authority granted to the Secretary of the Department of Health and Human Services by 42 U.S.C. 5101, et seq.

In accordance with the Administrative Procedure Act (5 U.S.C. 553), it is the practice of the Secretary to offer interested parties the opportunity to comment on proposed regulations. However, these regulations merely reflect statutory changes and remove unnecessary and obsolete regulatory provisions. Removal of the regulations does not establish or affect substantive policy. Therefore, the Secretary has determined, pursuant to 5 U.S.C. 553(b)(B), that public comment is unnecessary and contrary to the public interest.

There have been major and extensive legislative changes to CAPTA since the CAPTA regulations in 45 CFR part 1340 were issued in 1983 and updated in 1990. The regulations provided guidance to States to implement CAPTA programs that were in effect prior to 1996. These programs changed significantly beginning with the Child Abuse Prevention and Treatment Act Amendments of 1996. This CAPTA reauthorization overhauled the CAPTA state grant program, including the program authorizations for appropriations, making the regulations obsolete. Later, CAPTA reauthorizations also amended the State grant program in section 106 of CAPTA, making the regulations outdated since they do not include all of the CAPTA state grant program requirements contained in the law.

Furthermore, Section 6 of the President's Executive Order 13563 of January 18, 2011 called for retrospective analyses of existing rules “that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” As such, we believe it is unnecessary and outmoded to implement the CAPTA state grant programs through regulation. We believe the program requirements are made clear in the statute and have provided policy interpretations and program instructions to implement the program since 1996 in lieu of regulations. Removing the CAPTA regulations at 45 CFR part 1340 would be in keeping with Executive Order 13563.

In addition, section 109 of CAPTA instructs the Secretary to adopt regulations that are “necessary or appropriate to ensure that there is effective coordination” among CAPTA programs. We believe these regulations are no longer necessary or appropriate to ensure coordination because we have provided policy interpretations and program instructions to guide such coordination.

For these reasons, based on our analysis of 45 CFR part 1340, we are removing 45 CFR part 1340 from the Code of Federal Regulations.

We are removing section 1340.1 because it is outdated and non-essential to the current operations of the CAPTA programs. Paragraphs (a) and (b) clarify the role and activities of the National Center on Child Abuse and Neglect, which no longer exists; paragraph 1340.1(c) is extraneous because it only indicates that the requirements related to child abuse and neglect applicable to title IV-B of the Social Security Act are implemented by regulation at 45 CFR parts 1355 and 1357; and paragraph 1340.1(d) is unnecessary because it simply restates the prohibition on CAPTA funding for the construction of facilities that is provided for in section 108 of CAPTA.

We are removing the definitions in section 1340.2 because we are removing all of the sections to which the definitions apply. In addition, they are non-essential to the operations of the CAPTA programs for the following reasons. Paragraph (a) defines a “properly constituted authority” which is no longer relevant to the state plan requirements; paragraph (b) defines “Act” to mean the Child Abuse Prevention and Treatment Act, which is unnecessary; paragraph (c) defines “Center” as the National Center on Child Abuse and Neglect, which no longer exists. Paragraph (d) and its subparagraphs define and clarify the terms “child abuse and neglect”, “sexual abuse”, “negligent treatment or maltreatment”, “threatened harm to a child's health or welfare” and “a person responsible for a child's welfare”. These definitions are outdated and superseded by statutory definitions; paragraphs (e) through (h) define “Commissioner”, “grants”, “Secretary” and “State” which are either self-explanatory or defined in statute.

We are removing section 1340.3 because we are removing all of the sections that the Department-wide regulations are applied to by section 1340.3. In addition, these referenced regulations apply to CAPTA programs through the referenced Department-wide regulation itself or are no longer applicable to CAPTA grants.

Sections 1340.3(a) and (b) specify the Department of Health and Human Services regulations that are applicable to all grants and contracts made under this part:

• 45 CFR part 16—Procedures of the Departmental Grant Appeals Board

• 45 CFR part 46—Protection of human subjects

• 45 CFR part 74—Administration of grants

• 45 CFR part 75—Informal grant appeals procedures

• 45 CFR part 80—Nondiscrimination under programs receiving Federal assistance through the Department of Health and Human Services—effectuation of title VI of the Civil Rights Act of 1964

• 45 CFR part 81—Practice and procedure for hearings under part 80

• 45 CFR part 84—Nondiscrimination on the basis of handicap in programs and activities receiving or benefiting from Federal financial assistance

• 48 CFR Chapter 1—Federal Acquisition Regulations

• 48 CFR Chapter 3—Federal Acquisition Regulations—Department of Health and Human Services.

We are removing the coordination requirements in section 1340.4 because it is superseded by coordination language in section 101 of CAPTA, enacted in the CAPTA Amendments of 1996.

We are removing sections 1340.10 through 1340.15 because they are obsolete. Prior to the enactment of the CAPTA Amendments of 1996, section 107 of CAPTA authorized funding for two State grant programs: (1) To assist States to develop, strengthen and carry out child abuse and neglect prevention and treatment programs; and (2) to assist States in responding to reports of medical neglect (including the withholding of medically indicated treatment from disabled infants with life-threatening conditions), and improving the provision of services to disabled infants with life-threatening conditions and their families. Sections 1340.10 through 1340.14 applied to the former and 1340.15 to the latter and are not applicable to the current CAPTA State grant program in section 106.

The CAPTA Amendments of 1996 and later amendments significantly revised the State grant requirements in law prior to 1996. Now, States must submit a State plan in order to be eligible to receive a grant, including extensive State plan assurances. There is no longer the grant application and approval process specified in the regulations and States now provide assurances in their State plans that certain activities will be carried out using the grant funds to achieve the objectives of the law.

The protections for disabled infants (commonly known as “Baby Doe”) are now included in the statute in the form of a State plan assurance. Specifically, States are required under section 106(b)(2)(C) of CAPTA to have procedures to respond to reports of withholding medically indicated treatment from disabled infants with life-threatening conditions. In addition “withholding of medically indicated treatment” is defined in section 111 of CAPTA. No longer is there a specific State grant program and funding for improving the provision of services to disabled infants with life-threatening conditions and their families.

We are deleting section 1340.20 because section 106 of CAPTA addresses requirements for state grantees for confidentiality of records, and confidentiality requirements for other grantees can be addressed in the terms and conditions of the grant.

We are deleting the appendix to Part 1340. The appendix was added through a Final Rule (50 FR 14878) in 1985 to implement a grant program made available through the Child Abuse Amendments of 1984 (Pub. L. 98-457). This grant program is no longer in effect as it was at the time the appendix was added (Child Abuse Prevention and Treatment Act Amendments of 1996 (Pub. L. 104-235)).

Under the Paperwork Reduction Act (Pub. L. 104-13), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. There are no new requirements as a result of this regulation.

The Secretary certifies, under 5 U.S.C. 605(b), and enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this regulation will not result in a significant impact on a substantial number of small entities.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if the regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity.) Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, harmonizing rules, and of promoting flexibility. The regulations we are removing are obsolete and no longer applicable to the current law. By removing these outdated regulations, we are ending potential confusion in regard to the status of the regulations among states, grantees and other affected groups seeking information on the CAPTA program rules. There are no budget implications associated with removing the CAPTA regulations from the Code of Federal Regulations.

This final rule is not a major rule as defined in 5 U.S.C. Chapter 8.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. The required review of the regulations and policies to determine their effect on family well-being has been completed, and this rule will have a neutral impact on family well-being as defined in the legislation.

Executive Order 13132 prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The regulation has no federalism impact as defined in the Executive Order.

Background

In 2009, the International Civil Aviation Organization (ICAO) voted and reissued its Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), which lifted the previous restriction of spare fuel cell cartridges for all but Division 4.3 chemistries from passenger and crew member checked baggage. In response, on August 24, 2010, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice of proposed rulemaking (NPRM) to harmonize U.S. Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) with updated international standards. These changes included updates to packaging, labeling, and testing requirements to increase harmony with the international rules and promote the flow of goods (75 FR 52070, HM-215K, 8/24/2010). PHMSA stated its goal was “. . . to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public” and that we “. . . evaluate[d] each amendment on its own merit.” [75 FR 52071]

Ultimately, PHMSA did not adopt every provision of every set of the international regulations. In the final rule published January 19, 2011 [76 FR 3308], PHMSA revised the 49 CFR 175.10 passenger exceptions to allow passengers and crew members to place certain spare fuel cell cartridges containing a flammable liquid (Class 3) or corrosive material (Class 8) in checked baggage. PHMSA stated, “fuel cell cartridges themselves are subject to much more stringent construction, testing, and packaging requirements than for similar articles (e.g., aerosols).” However, PHMSA limited the scope of spare fuel cell cartridge chemistries allowed in checked baggage by excluding fuel cell cartridges containing Division 2.1 (flammable gas) and Division 4.3 (dangerous when wet) material. In the interest of safety, PHMSA elected to continue the longstanding limitations in the HMR for Division 2.1 (flammable gas) on passenger-carrying aircraft and thus maintained the existing prohibition on the transport of spare fuel cells containing Division 2.1 (flammable gas) in checked baggage. PHMSA and the Federal Aviation Administration (FAA) explained their expressed concern “due to the questionable integrity of [fuel cells] when packed in a passenger's checked baggage” [76 FR 3337].

As a result of PHMSA's rulemaking, Lilliputian filed an administrative appeal in accordance with 49 CFR 106.110. It requested PHMSA to revise 49 CFR 175.10(a)(19) to align with the ICAO Technical Instructions and allow spare fuel cell cartridges containing Division 2.1 (flammable gas) to be carried in checked baggage. PHMSA granted the administrative appeal by providing Lilliputian and the public additional opportunity for comment in a May 25, 2012 NPRM [77 FR 31274]. The subsequent final rule issued on January 7, 2013 [78 FR 1101] denied the placement of spare Division 2.1 fuel cell cartridges in checked baggage but continued to allow two spare Division 2.1 fuel cell cartridges in carry-on baggage.

Lilliputian filed a Petition for Review of the Final Order in the United States Court of Appeals for the District of Columbia Circuit on March 8, 2013. In a January 31, 2014, (731 F.3d 1309) decision, the Court remanded the rule and ordered PHMSA to “provide further explanation for the prohibition on airline passengers and crew carrying flammable-gas fuel cell cartridges in their checked baggage, including its response to Lilliputian's comments.” 1

When PHMSA decides whether to allow an item on a passenger-carrying aircraft, the Department only tolerates extraordinarily low levels of risk. For example, when failure of a component in an airplane could interfere with continued flight and safe landing, the risk of failure must be less than one billion to one.2 This low level of tolerance for risk makes sense because, due to the high volume of air transport, even a very improbable event may eventually occur, and with catastrophic results. Additionally, PHMSA is required by 49 U.S.C. 5108(b) to pursue the “highest degree of safety in pipeline transportation and hazardous materials transportation.” 3 Under 49 U.S.C. 5103(b), PHMSA is authorized to issue regulations for the safe and secure transportation of hazardous materials in commerce, including transportation by air.

The risks presented by flammable gas on airplanes are clear. Flammable gases will burn if mixed with an appropriate amount of air, and an ignition source is present, and confined burning of a flammable gas can lead to detonation. As a result, PHMSA remains concerned with the hazards posed by flammable gases (such as the butane contained in some fuel cells) contributing to a fire in the cargo compartment of a passenger-carrying aircraft. This concern is particularly relevant to carriage in checked baggage, where damage to the fuel cell cartridge and the release of a flammable gas may occur if the baggage is mishandled.

PHMSA denied Lilliputian's appeal due to the uncertainty of the safety risks posed when combining (1) the uncertainty of how the baggage handling would affect the durability and stability of these products, (2) the possible over-sight of hazmat communication and packaging requirements because the regulations do not apply to passengers, and (3) the limitations of aircraft's fire suppression systems. PHMSA was particularly concerned by the allowance for passengers to transport flammable-gas fuel cells because passengers “are not trained to recognize potential hazards” and “are unlikely to be aware of the safety implications” of improper packaging or handling. Considering those factors combined with the limitations of the aircraft's suppression system, (fire suppression systems “do not prevent fires” and are not “designed to completely extinguish fires”) the safety risks were too great to authorize this exemption. PHMSA further explained that the authorization of any additional flammable gas on an airplane, in addition to the gases contained in the toiletry and medicinal items already allowed, would need to take into account “the cumulative risk of the new authorization combined with existing authorizations.” [78 FR 1104] PHMSA expressed willingness, however, to consider allowing certain fuel cells models on a case-by-case basis. For example, portable oxygen concentrators may be allowed at some point in the future, when experience and testing prove that safe designs exist.

Because of the risks presented by flammable gases, a number of safety requirements apply to shipments of flammable gas on passenger-carrying aircraft. PHMSA believes there is sufficient basis for its decision because, as previously stated, in the area of aviation safety, there is a very low tolerance for risk. In its decision, PHMSA considered the known risks of flammable gases, coupled with the uncertainties relating to the safety of new fuel cell technology, added to the already high volume of air travel and the catastrophic consequences of any failure.

PHMSA's approach to aviation safety is not to permit items merely because they are similar to items already permitted. The authorization of any additional flammable gas on an aircraft, in addition to the toiletry and medicinal items already allowed, needs to take into account the cumulative risk of the new authorization combined with existing authorizations. A limited exception has existed since 1972 for small quantities of such gases in personal medicinal and toiletry items, such as the butane used as a propellant in a small aerosol can or a butane-powered curling iron (49 CFR 175.10(a)(1)(i). However, most Division 2.1 (flammable gas) substances and articles are forbidden from transportation as cargo aboard passenger-carrying aircraft, and thus prohibiting the carriage of spare fuel cell cartridges containing flammable gas in checked baggage is consistent with the agency's longstanding position with regard to flammable gases.

The exceptions in 49 CFR 175.10 have not been expanded to permit additional flammable gases in checked baggage. As previously noted, allowing transportation of flammable gas in airline passengers' checked baggage would be inconsistent with the exceptions in 49 CFR 175.10. Airline passengers do not comply with the important packaging, labeling, and hazard communication requirements when they put items in their checked baggage, and they may not even be aware of such requirements. Without hazard communication and other notifications to handlers that the passenger's baggage contains flammable gas, checked baggage could be mishandled, damaging the integrity of an improperly packaged container of flammable gas. Negligent packing and excessive handling increases the potential that a container of flammable gas in checked baggage could rupture, creating conditions for an explosion. 76 FR 3337.

Beginning in 2009, the ICAO began considering whether to change its regulations to allow transport of fuel cells in checked baggage. Prior to that time, fuel cells had been allowed only in carry-on baggage or on one's person, in order to mitigate the risk of the fuel cell cartridge inadvertently coming into contact with an ignition source.4 Although members of the ICAO Dangerous Goods Panel were generally supportive of permitting most fuel cells containing flammable liquids in checked baggage, “many were wary of permitting fuel cartridges containing substances of other classes.” In particular, “[s]ome felt further consideration was needed with respect to fuel cell cartridges containing flammable gases.” Some participants suggested that changes not be adopted to allow these new technologies until “experience based on a longer timeframe could be demonstrated.” 5 In the end, ICAO included in its Technical Instructions a provision to allow two spare fuel cell cartridges containing flammable gas in checked baggage. It should be noted that the ICAO Dangerous Goods Panel does not operate solely on a consensus basis and that some delegates, including the U.S. Panel Member, were not in agreement with this decision. The U.S. Panel member spoke against the adoption of this provision when the amendment was discussed and agreed to by majority vote during the Dangerous Goods Panel's 22nd meeting (held in Montreal, Canada from October 5-16, 2009).6

In Lilliputian's comments posted to the docket of the August 24, 2010 NPRM (PHMSA-2009-0126-2027), they posed five recommendations for conducting a proper risk analysis:

• Any analysis should begin with the risk of ignition or sparking.

• The analysis should examine the risk of catching fire as a result of an external fire.

• The analysis should examine whether a fuel cell fire, once ignited, can be effectively extinguished in a timely manner.

• The analysis should look to any experience involving similar materials.

• The analysis should evaluate whether the volume of the material is relevant in terms of the risk and managing that risk.

We believe that the Preliminary Investigation of the Fire Hazard Inherent in Micro Fuel Cell Cartridges (Final Report) 7 prepared by the FAA Technical Center did address these recommendations posed by Lilliputian. The report examined the fire risk presented by fuel cells, including cells powered by flammable solids, liquids, and gas, including a test that exposed single, small fuel cells of various types to a low-intensity flame in a controlled environment. Only a few varieties of fuel cells were tested, because the technology was still developing; however, one of the fuel cells tested was a butane fuel cell manufactured by Lilliputian. The test results showed that, of the fuel types tested, “[b]utane produced the most vigorous fire.” The plastic cartridge used by Lilliputian was breached only 45 seconds after exposure to flame and the “butane ignition was rapid, almost explosive” 8 (emphasis added). It produced an approximately 1,000-degree Fahrenheit flame, by far the hottest flame produced by any of the materials in the study. While some of the other fuel cell fires were “easily extinguished using Halon 1211,” a fire suppression system commonly used in an aircraft, the butane fire burned so rapidly that the fire suppression system did not activate until after all the butane fuel had been consumed by the fire.

A Halon 1211 system is not designed to detect fires. The pilot must first see that there is an alert from the fire detection system. Once that happens, the pilot will engage the Halon 1211 system, which will attempt to suppress, but not extinguish, the fire. While airplanes are equipped with fire detection systems, such as Halon 1211, there are no systems on board to detect a gas leak. Thus, if a fuel cell cartridge placed in checked baggage is damaged and allows butane gas to leak into the cargo compartment, there is no way for the pilot to be aware of this. The accumulation of the butane gas, if exposed to a spark, would then cause an explosion and would lead to a catastrophic failure of the airplane.

The FAA Technical Center tests were designed to determine the flammability characteristics of fuel cell cartridges. The tests were conducted on single cartridges exposed to a controlled fire. The tests did not take into account the interaction of one or more cartridges and any adjacent combustible material (i.e., clothing, electronic devices, etc.) or the effect of fuel cell cartridges in propagating a fire. We do know from the test results that butane produced the most vigorous fire, the cartridge provided the least amount of protection from an external fire and, once penetrated, the liquid butane burned rapidly and filled the test chamber with fire. The butane fire also registered the highest temperature (1000 degrees Fahrenheit) and heat flux measurements of all tests conducted. The plastic cartridge used by Lilliputian was breached only 45 seconds after exposure to flame, and the butane ignition was rapid, almost explosive. Thus, the test results from the Final Report support our concern that the inherent hazards of compressed flammable gases, as demonstrated by exposure to a fire involving a fuel cell cartridge containing an estimated volume of only 50 cc or less of butane, would pose an unacceptable risk in air transportation.

As PHMSA stated in the preamble to the January 19, 2011 final rule, Federal hazmat law (49 U.S.C. 5101 et seq.) and policy encourages the harmonization of domestic and international standards for hazardous materials transportation to the extent practicable, but the law also permits PHMSA to depart from international standards in order to promote public safety. When considering the adoption of international standards under the HMR, PHMSA reviews and evaluates each amendment on its own merit, on the basis of its overall impact on transportation safety, and on the economic implications associated with its adoption. Our goal is to harmonize without diminishing the level of safety and without imposing undue burdens on the regulated public. In this instance, we believe that restricting the carriage of flammable gas fuel cell cartridges to be a necessary variation to the ICAO Technical Instructions that enhances the safety of aircraft passengers without imposing an unreasonable regulatory burden. Under Federal hazmat law, we are tasked with balancing the needs of public safety with economic burdens when considering harmonization with international standards. Consequently, because we elected not to revise the HMR to align with the ICAO Technical Instructions, we believe we did strike a balance by continuing to permit flammable gas fuel cell cartridges in carry-on baggage.

The Court of Appeals for the District of Columbia Circuit also was concerned that PHMSA did not provide a reasoned explanation and substantial evidence for the disparate treatment of fuel cell cartridges as opposed to other products, particularly medicinal and toiletry items that contain flammable gases (i.e. aerosols).

In order to determine if a hazardous material is permitted in checked baggage, PHMSA must take into account the cumulative risk of any new authorizations combined with any existing authorizations. Under certain conditions, 49 CFR 175.10 permits the carriage of aerosols in checked baggage on a passenger-carrying aircraft. This limited exception has existed since 1972 for aerosol containers in small quantities in personal medicinal and toiletry items. Such items include hair spray, deodorant, and certain medicinal products.

To comply with the ban on chlorofluorocarbons (CFCs) that became effective January 1, 1994, 9 the aerosol industry changed the type of propellant used in their products. Unfortunately, this new type of propellant is flammable and, because of its widespread use, there was concern of a risk-risk tradeoff (ozone layer damage versus cargo compartment safety on passenger-carrying aircraft). PHMSA and FAA were concerned that static electricity inherent in cargo compartments could ignite a leaking flammable aerosol container in passenger baggage.

Based on its concerns, PHMSA reviewed incident reports in the Hazardous Materials Identification System (HMIS) database and specific incidents that occurred during baggage handling provided by the FAA. Accordingly, PHMSA and FAA agreed to work together in certain areas to improve the safe transportation of flammable aerosols by adopting regulatory and non-regulatory solutions. For example, each agency agreed to: (1) Actively participate in the ICAO Dangerous Goods Panel that reviews the items that passengers are permitted to carry in the cabin and in checked baggage; (2) partner with the Consumer Specialty Products Association to enhance the design of aerosol products; and (3) amend the HMR to require or clarify that any release of hazmat in passenger baggage must be reported. Further, in a final rule published on December 20, 2004, PHMSA amended the HMR by requiring that release devices on aerosols be protected by a cap or other suitable means to prevent the inadvertent release of contents when placed in passenger or crew member baggage. [69 FR 76179; (HM-215G)] Because of the prevalence of aerosols in everyday travel, these adopted safety measures were deemed sufficient while not being overly burdensome to the traveling public. However, PHMSA continues to monitor this issue very closely and will respond to any negative trends accordingly.

While PHMSA and FAA adopted safety measures to address the risks associated with permitting aerosols in checked baggage, the amount of butane in a fuel cartridge (200 mL) is approximately twice as much as the amount utilized in a typical 16 ounce aerosol can. Given the amount of electronic devices that passengers typically travel with, the cumulative volume of butane from fuel cell cartridges that passengers could bring aboard an aircraft is a concern. As a result, PHMSA has determined there is too much risk in allowing fuel cell cartridges in checked baggage in addition to the currently authorized flammable aerosols when stowed in inaccessible cargo compartments on passenger-carrying aircraft.

As previously stated, 49 CFR 175.10 prescribes certain conditional exceptions to the HMR for passengers, crewmembers, and air operators for hazardous materials contained in their carry-on (including on one's person) and checked baggage. In paragraph (a)(6), hair curlers (curling irons), containing a hydrocarbon gas such as butane, are excepted from the requirements of the HMR in checked baggage. Flammable gas refills for such curlers are not permitted in carry-on or checked baggage. (emphasis added).

In an NPRM published January 23, 2015 (80 FR 3836; [HM-218H]), PHMSA is considering prohibiting butane-powered curling iron articles in checked baggage. We believe the risk posed by flammable gases in an inaccessible compartment on a passenger-carrying aircraft is clear. Flammable gases will burn if mixed with an appropriate amount of air and confined burning of a flammable gas can lead to detonation. As a result, we remain concerned with the flammability hazard posed by butane and other flammable gases and the ability of such gases to propagate or contribute to a fire in the cargo compartment of an aircraft. This concern is particularly relevant to carriage in checked baggage, where damage to the curling iron and the subsequent release of a flammable gas may occur if the baggage is mishandled or the article itself is compromised.

Because of the risks posed by flammable gas, a number of safety requirements apply to cargo shipments of flammable gas on passenger-carrying aircraft. As previously stated, most Division 2.1 (flammable gas) substances and articles are generally forbidden from transportation as cargo aboard passenger-carrying aircraft, and PHMSA's proposal to prohibit the carriage of butane-powered curling irons in checked baggage is consistent with this provision. In the area of aviation safety, where the high volume of travel and the catastrophic consequences of failure lead to a very low tolerance for risk, we firmly believe the known risks of flammable gas are sufficient basis for our decision.

We remain concerned with the flammability hazard posed by butane and other flammable gases and the ability of such gases to propagate or contribute to a fire in an inaccessible cargo compartment of a passenger-carrying aircraft. Moreover, in light of the well-established risks related to flammable gas and the long-standing prohibition of most flammable gas on passenger-carrying aircraft, PHMSA will continue to prohibit fuel cell cartridges that contain a class 2.1 flammable gas from being placed in checked baggage.

The blueline tilefish is a species included in the snapper-grouper fishery of the South Atlantic, and the fishery is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On December 19, 2014, NMFS published a notice of availability for Amendment 32 and requested public comment (79 FR 75780). On January 22, 2015, NMFS published a proposed rule for Amendment 32 and requested public comment (80 FR 3207). The proposed rule and Amendment 32 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Amendment 32 and this final rule is provided below.

A benchmark assessment for the blueline tilefish stock in the South Atlantic was conducted through the Southeast, Data, Assessment, and Review (SEDAR) process in 2013 (SEDAR 32). The assessment determined that the blueline tilefish stock is undergoing overfishing in the South Atlantic. NMFS published an emergency rule on April 17, 2014 (79 FR 21636), that implemented temporary measures to reduce overfishing of blueline tilefish while Amendment 32 was under development. Those measures were extended through a temporary rule (79 FR 61262, October 10, 2014), and are effective through April 18, 2015. The temporary measures of the emergency action include the following: Removal of blueline tilefish from the deep-water complex, specification of sector ACLs and AMs for blueline tilefish, and revision to the deep-water complex ACL to reflect the removal of blueline tilefish from the complex. Unless otherwise noted, all weights in this rule are expressed in round weight.