Federal Register Vol. 80, No.82,

Title V, Section 1480(k) of the Housing Act authorizes the Secretary of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title.

The Office of Management and Budget (OMB) has designated this rule as not significant under Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under this program, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This rule is not retroactive. It will not affect packaged loan applications received prior to the effective date of the rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 must be exhausted.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of the Agency that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, neither an Environmental Assessment nor an Environmental Impact Statement is required.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the undersigned has determined and certified by signature of this document that this rule, while affecting small entities, will not have an adverse economic impact on small entities. The Agency made this determination based on the fact that this regulation only impacts those who choose to participate in the certified loan application packaging process. Small entities engaged in this process will not be affected to a greater extent than large entities engaged in this process.

This program/activity is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. (See the Notice related to 7 CFR part 3015, subpart V, at 48 FR 29112, June 24, 1983; 49 FR 22675, May 31, 1984; 50 FR 14088, April 10, 1985).

This executive order imposes requirements on Rural Development in the development of regulatory policies that have tribal implications or preempt tribal laws. Rural Development has determined that the final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. However, in an effort to raise Tribal and Tribal Housing Authority awareness and interest in the proposed rule published on August 23, 2013, RHS co-hosted a webinar and teleconference with the National American Indian Housing Council on November, 6, 2013, during the extension of the public comment period. Thirty-nine Indian Housing and Tribal staff from around the country registered for the webinar and teleconference to learn about the proposed certified loan application packaging process. Participants were encouraged to provide feedback during the webinar and teleconference as well.

This program is listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires that OMB approve all collections of information by a Federal agency before they can be implemented. Under the proposed rule, qualified employers were required to provide monthly reports to the Agency outlining the packaging activities of their Agency-certified packager(s). The estimated total annual burden on respondents was 6,300 hours.

After gauging the benefits and limitations of the reporting under the packaging pilot program and in light of public comments received, the monthly reporting requirement outlined in § 3550.75 (b)(2)(iv) was removed. This rule does not impose any new or modified information collection requirements.

RHS is committed to complying with the E-Government Act, 44 U.S.C. 3601 et seq., 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.

The section 502 direct single family housing loan program provides subsidized mortgage loans for modest homes in rural areas to primarily first-time homebuyers who are low- and very low-income. While loan approval and underwriting are functions of the Agency staff, the Agency's nonprofit and public partners often play a role in educating potential homebuyers in homeownership and in originating section 502 loans.

Loan application packaging, which is an optional service, is not new to the program; it has been permitted under the program for decades. Loan application packagers, who are separate and independent from the Agency, play an important role in increasing awareness of the section 502 program among potential homeowners and provide a valuable service to potential homeowners.

To address weaknesses in the existing loan application process and to integrate the lessons learned from the packaging pilot program, which began in Fiscal Year 2010 and introduced the use of intermediaries in the packaging process, RHS published a proposed rule on August 23, 2013, (78 FR 52460-52464) to amend its regulations for the section 502 direct single family housing loan program to create a certified loan application packaging process.

The original 60-day comment period for the proposed rule, which ended on October 22, 2013, was extended to November 22, 2013, due to the lapse in Federal funding that caused a partial closing of Federal government operations from October 1 through October 16, 2013. Notice of the extension was published on November 1, 2013 (78 FR 65582). A total of 34 comments were received. Commenters included affordable housing nonprofit organizations, the National Council of State Housing Agencies, the National Rural Housing Coalition, and the general public.

Comments on the role of the intermediaries. The Agency received several comments on the role of the intermediaries in the process. As outlined in the proposed rule, intermediaries would perform quality assurance reviews and monitoring activities on individuals seeking or who have been designated as an Agency-certified loan application packager and their qualified employers. Some called for the complete removal of the intermediaries while some called for a tightening of the requirements to become one (i.e. require the organization to demonstrate financial viability, have at least one recommendation from a Rural Development State Office, etc.) and/or expanding their role (i.e. allow them to order critical items, require their involvement in all packaged loan applications, allow them to perform quality assurance reviews on self-help loans, etc.).

Agency Response: In light of the intermediaries' overall performance under the pilot, which included successes and shortcomings, the Agency will strengthen the requirements to be an intermediary while relaxing the requirements to be a qualified employer to allow startups to participate in the certified loan application packaging process. An intermediary will be involved in the process unless a qualified employer and their certified packaging staff obtains approval from the applicable Rural Development State Director to opt not to go through an intermediary based on the quality of the loan application packages submitted by the qualified employer and their certified packaging staff. The “opt out” request is optional. Qualified employers and their certified packaging staff that are performing at or above the required standards may choose to continue to funnel their packaged loan applications through an intermediary for their own reasons.

For qualified employers and their certified packaging staff that received approval to “opt out,” the State Director will determine if they must subsequently submit through an intermediary instead of directly to the Agency if performance issues should occur. Guidelines for State Directors will be included in the program's handbook to ensure uniformity.

The criteria to be an intermediary will be revised to clarify that intermediaries will be required to provide supplemental training, technical assistance, and support to those qualified employers and their Agency-certified packaging staff that are required to funnel their packages through them since one of the primary goals of an intermediary is to cultivate high performance. As further detailed in the program's handbook, supplemental training and technical assistance will address, among other things, any areas for improvement discovered during the quality assurance reviews and explain any changes to program guidance.

The criteria will also be revised to require an intermediary to be, to the Agency's satisfaction, a Section 501 (c)(3) nonprofit organization or public agency in good standing in the State(s) of its operation with the capacity to promptly serve (as detailed in the program's handbook) multiple qualified employers and their Agency-certified loan application packagers throughout an entire State or preferably throughout entire States; be financially viable as evidenced by an audit paid for by the applicant seeking to be an intermediary; and demonstrate that their quality assurance staff has experience with packaging, originating, or underwriting affordable housing loans. After the initial application process, intermediaries may be required to periodically demonstrate that they still meet specified criteria.

An intermediary will continue to be prohibited from having a financial interest in the property for which the application package is submitted since this helps ensure an unbiased and objective quality assurance review. A qualified employer and/or Agency-certified packager, however, will be permitted to have a financial interest in the property since many offer acquisition and rehabilitation programs or other programs that promote affordable housing and improve a community's housing stock. However, a qualified employer and/or Agency-certified packager must notify the Agency and applicant of any financial interest in the property. In addition, the Agency may prohibit a qualified employer and/or Agency-certified packager from receiving part or all of the packaging fee if the financial interest is improper or the qualified employer and/or Agency-certified packager has a history of improperly using its position when a financial interest exists.

To complement the above, the proficiency requirement outlined in § 3550.75(b)(1)(iv) was removed, although an individual must still meet the requirements in 3550.75(b)(1)(i) through (iv); and the experience requirement outlined in § 3550.75(b)(2)(iii) was removed, although a qualified employer must still meet the requirements in 3550.75(b)(2)(i) through now (v).

Following the publication of this rule, a Federal Register notice of the Agency's intent to accept applications to be an intermediary under the regulation will be published. Intermediaries operating under the packaging pilot program are not guaranteed an intermediary role beyond their participation in the pilot program (which ends at the earlier of either the end date of the agreement between the pilot intermediary and the Agency, or the effective date of this final rule) and will be subject to this application process should they wish to serve as an intermediary under the regulation. Periodically, the Agency will issue such notices to give interested parties an opportunity to apply to be an intermediary, require existing intermediaries to demonstrate that they still meet the requirements under the regulation, and ensure there are a sufficient number of qualified intermediaries engaged in the certified loan application packaging process.

Comments on the loan application packaging fee and compensation. The Agency received several comments on the packaging fee. Some called for the packaging fee to be reduced or eliminated. Some called for the packaging fee to be increased or a percent of the loan amount. Within this subset, it was also stated that compensation should be allowed even if the packaged loan application does not result in a closed loan and that the Agency should pay for all or a portion of the fee and provide technical assistance funding to the Agency-certified packagers for marketing, prescreening, and other related items.

Agency Response: The language under § 3550.52 will state that, “The fee may not exceed two percent of the national average area loan limit as determined by the Agency and may be limited further at the Agency's discretion.” However, the program's handbook will initially specify that the fee may be up to, but not exceed, $1,500. If the qualified employer and their certified packaging staff are required to go through an intermediary, the fee will remain the same but they will have to share a portion of the fee with the intermediary. The parties will negotiate how the fee is shared exclusive of any Agency involvement.

Comments were made that mortgage lenders and brokers traditionally earn a minimum of 250 basis points in originating private sector mortgages. Although these services share some similarities, packaging a section 502 loan and originating a private mortgage are not the same. For example, originating a private mortgage generally includes processing an application, underwriting and funding a loan, and other administrative services. Packagers in the section 502 program do not underwrite, approve, or fund loans on behalf of the Agency.

Compensation will only be allowed for closed loans. This condition is currently in effect for the protection it affords parties who wish to seek a section 502 loan but who are clearly ineligible.

Other than using program funds to include the packaging fee in the borrower's loan when permissible and travel funds for a designated Agency staff member to attend classroom sessions offered by non-Agency trainers, the Agency will not use funds to operate the certified loan application packaging process.

Comments on the adverse impact the rule will have on small nonprofits that have been effectively providing abbreviated packaging services to Agency applicants for years. Some commenters expressed concerns that the requirements of the certified loan application packaging process, such as the training component, would force out small nonprofits currently engaged in packaging.

Agency Response: Language will be added to § 3550.52, “Loan Purposes”, that states, “Nominal packaging fees not resulting from the certified loan application process are an eligible cost provided the fee is no more than $350; the loan application packager is a nonprofit, tax exempt partner that received an exception to all or part of the requirements outlined in § 3550.75 from the applicable Rural Development State Director; and the packager gathers and submits the information needed for the Agency to determine if the applicant is preliminarily eligible along with a fully completed and signed uniform residential loan application.”

Comments on whether loan applications packaged under this process should be considered as a fourth funding priority item. The Agency received several comments on the funding priority classification. Some stated that fourth funding priority or higher was critical to the success of the certified loan application packaging process. Within this subset, it was also stated that processing priority was imperative. Some stated that giving fourth funding priority to applications received under this process would be unethical and discriminatory.

Agency Response: After weighing the comments for and against, it was decided that loans packaged under this process will not receive fourth funding priority unless the Administrator decides that such a temporary classification is necessary nor will they receive processing priority though the Agency will examine the program's guidance to ensure that both tracks (packaged or non-packaged) are treated equitably. As noted by one commenter, “As it stands today, the items that receive fourth priority ultimately allow the agency to assist more income-limited persons by reducing the agency loan amount for transactions involving sweat equity or supplemental financing from outside sources. Giving fourth priority to applications packaged under this process only benefits a particular borrower and actually places them in a position where this service is not exactly optional.” However, § 3550.55 (c) will be revised to include the following guidance at the end of the paragraph: “Applications received through the certified loan application packaging process do not, by themselves, warrant a higher priority; though the Administrator may temporarily reclassify them as fourth priority when determined appropriate.” Any such reclassification will be published in a Federal Register notice.

Comments on the experience requirement placed on an individual who wishes to become an Agency-certified packager. One commenter suggested that the requirement be revised from “have at least one year of real estate and/or mortgage experience” to “have at least one year of affordable housing loan origination and/or affordable housing counseling experience”. One commenter asked for the rationale behind this experience requirement. One commenter suggested this requirement be removed.

Agency Response: The minimum relevant experience requirement (along with the other requirements), helps ensure that Agency-certified packagers have the needed knowledge, skills, and abilities to provide this service. The Agency agrees that experience with affordable housing loan origination and/or affordable housing counseling is more relevant given the nature of the section 502 direct single family housing loan program and the income categories it is designed to serve, and has revised § 3550.75(b)(1)(i) accordingly.

Comments on the employment relationship between the Agency-certified packager and the qualified employer. Some commenters requested clarity on the nature of the relationship and one requested that contract arrangements be permitted.

Agency Response: It will be clarified that employed means as an employee or as an independent contractor.

Comment specific to the States' Housing Finance Agencies (HFAs). One commenter suggested that the States' HFAs be allowed to serve as qualified employers or as intermediaries regardless of their composition (public agency or quasi-government entity established by the State as an independent authority and public corporation) and their experience with the Agency's programs.

Agency Response: Given the States' HFAs purpose, vision, and structure, the Agency agrees with this comment and is revising § 3550.75(b)(2) and (3) accordingly. A similar allowance will also be extended to tribal housing authorities though this allowance will be limited to serving as qualified employers since tribal housing authorities focus on Indian housing needs and not necessarily statewide housing needs.

Comments on compliance with the Secure and Fair Enforcement Mortgage Licensing Act of 2008 (SAFE Act). Several commenters expressed concern that compliance with the SAFE Act would be overwhelmingly burdensome and costly.

Agency Response: As noted in the Paperwork Reduction Act section, the monthly reporting requirement outlined in § 3550.75(b)(2)(iv) was removed and along with it the reference to the SAFE Act. The SAFE Act provides for the licensing and registration of mortgage loan originators, and includes provisions requiring all States to establish a licensing and registration scheme for mortgage loan originators who are not employed by federal agencies or Agency-regulated institutions. The Consumer Financial Protection Bureau published regulations regarding the State requirements at 12 CFR part 1008 (Regulation H).

The Agency does not have the authority under the SAFE Act to enforce or monitor SAFE Act compliance. However, the Agency believes that certified loan application packagers meeting the requirements of this rule are not “mortgage loan originators” subject to the SAFE Act or Regulation H because certified loan application packagers do not “offer or negotiate terms” of loan and therefore do not meet the criteria of “mortgage loan originators”. See 12 CFR 1008.103(c)(2). Specifically, certified loan application packagers will not communicate with a borrower or prospective borrower “for the purpose of reaching a mutual understanding about prospective residential mortgage loan terms.” Rather, it is the Agency that underwrites the loan, makes a final decision about the loan terms, and communicates those terms to the borrower. The mutual understanding regarding the loan terms is between the borrower and the Agency—the certified loan packager is not a party to the mutual understanding.

Even if the activities of a certified loan application packager were to be considered those of a mortgage loan originator, a State may exempt an individual from the State requirements if that individual is an employee of a bona fide nonprofit organization who acts as a loan originator only as part of work duties to the nonprofit organization and with respect to residential mortgage loans with terms favorable to the borrower. See 12 CFR 1008.103(e)(7)(i).

Commenters were misinterpreting the reference to mean that the Agency would require SAFE Act compliance even when the State does not.

Comments on the Agency-approved loan application packaging course and continuing training. Comments included: Ensure that the training is readily available and not cost prohibitive; consider offering an online version; underscore the Agency's oversight role in the management of the curriculum development and revisions as well as participation records; add a continuing education requirement; and do not require attendees of past three-day classroom training sessions (offered since August 2009) to retake the training.

Agency Response: Reference to a “three-day classroom” session will be removed from the final rule to allow for flexibility in the training's delivery method and guidance will be added to the program's handbook to underscore the Agency's oversight role. In addition, § 3550.75(c)(3) will be changed from “Non-Agency trainers, who will be limited to housing nonprofit organizations . . .” to “Non-Agency trainers, who will generally be limited to housing nonprofit organizations but may in rare cases include public bodies such as public universities . . .” and from “. . . and course materials; and bear the cost of providing the training. The course schedule must be approved by RHS and each session will be attended by a designated Agency staff member. A list of eligible non-Agency trainers will be published on the Agency's Web site . . .” to “. . . and updated course materials; and bear the cost of providing the training though a reasonable tuition fee may be charged the course participants. The course content, schedule, and tuition must be approved by RHS and a designated Agency staff member will typically participate in each training session to ensure accuracy of the program information and to serve as a program resource. A list of eligible non-Agency trainers, which is subject to change based on the non-Agency trainers' performance, will be published by the Agency . . .” These changes are being made to increase the availability of the training and to clarify how the trainers will be compensated and the oversight that will be provided by the Agency.

In regards to continuing education, § 3550.75(e) states that the Agency will stipulate any training and performance requirements for retaining a designation. Additional guidance on this issue will be provided in the program's handbook.

The Agency will recognize the attendance of past training sessions provided the attendee fully attended a three-day classroom course jointly presented by the Agency and one of three sponsoring nonprofit organizations (NeighborWorks, the Housing Assistance Council, or the Rural Community Assistance Corporation), and passed the online exam. If the training was taken more than three years ago (from the effective date of this final rule), recognition will also be subject to the attendee having submitted at least one viable packaged loan application between passing the course and the effective date of this final rule.

Comment to require Agency-certified packagers to perform in a manner that does not adversely impact the Agency's ability to meet its statutory requirement to make 40 percent of the program funds available to very low-income persons nationwide and 30 percent on a state level.

Agency Response: The Agency agrees, and language was added under § 3550.75(f) to address this comment.

Comment to provide the acceptable rate of packaged loan applications in the regulation instead of referring to the program's handbook. A commenter believed the regulation should set forth the expectations.

Agency's Response: The Agency is not making changes to the final rule on this issue. The acceptable rate and the new rate added in response to the comment above will be published in the program's handbook so that the Agency may make appropriate and timely adjustments.

Comments pertaining to the rule as it relates to the section 523 self-help program. Comments included: Clarify if grantees are subject to the rule's requirements, allow intermediaries to perform quality assurance reviews on self-help loans, and allow grantees to charge a packaging fee on self-help transactions.

Agency Response: Self-help projects and loans are excluded from the certified loan application process and from charging a packaging fee since grantees receive grant funds to package (among other things) and are provided technical and management assistance. However, a grantee and its staff may participate in the process for non-self-help loans provided they meet all the rule's requirements (i.e., grantees or technical and management assistance contractors and their staff do not automatically qualify as intermediaries, qualified employers, or Agency-certified packagers under the process).

Comments on improving the lines of communication between the Agency-certified packagers and the Agency before and after loan closing. Some commenters called for improved communication to boost performance before and after closing. One commenter believed that if notification was sent to the intermediary or packager when a loan they packaged went into default, they could help the homeowner get back on track and avoid foreclosure.

Agency Response: The program's handbook currently instructs packagers to issue a prescribed disclosure letter to interested parties. The disclosure letter includes a waiver of provisions to the Privacy Act of 1974. If a party permits it, the Agency will release to and discuss with the packager any information they seek or request from the Agency's records concerning the person's application for Agency assistance. Under the packaging pilot program, this disclosure also includes the intermediary.

Clarification will be provided in the program's handbook that Agency staff should promptly contact the packager with specific information (e.g., the closing date once scheduled) regardless of the response to the Privacy Act waiver.

While the current waiver notes that the authorization will terminate upon loan closing or Agency denial of the loan application, appropriate changes may be made to extend this authorization beyond closing if/when the program's loan servicing system can be configured to issue servicing (i.e., delinquency) notifications to the packager as well.

Comments to allow packagers to obtain the residential mortgage credit report and the appraisal report that will be used in the Agency's decision. Several commenters thought this would streamline the process and expedite the Agency's decision making process.

Agency Response: While it is expected that the packager would do a preliminary check on a potential applicant's credit history (e.g., by having a process in place to order single repository infile reports at their own expense; by requesting the potential applicant to obtain a free report via www.annualcreditreport.com; etc.), the Agency must order the residential mortgage credit report through the program's loan origination system so that the reported liabilities and score can be automatically populated into the system. Having the credit report file in the system will become even more critical when the program implements an automated underwriting system.

The Agency must manage the ordering of the appraisal to ensure that orders are only made when funds are available to process the loan request and to ensure the equitable ordering of services among appraisers who have blanket purchase agreements with the Agency. The Agency can only accept an appraisal obtained from a third-party when that third-party is a lender participating in the transaction and has a risk of loss at stake.

Comments on whether limiting qualified employers and intermediaries to nonprofit entities (and public agencies) would provide better protection to borrowers and the government or increase the packaging fees by limiting competition.

Agency Response: The commenters that addressed this item were almost unanimously agreed that limiting the process to nonprofits (and public agencies) provided better protection while not adversely impacting the fee. The Agency agrees, and the program's handbook will elaborate on what constitutes a public agency and provide examples.

Comments on considering alternatives to how the Agency currently conducts the applicant orientation, which is generally handled on an individual application basis in person or over the phone (using Form RD 3550-23, Applicant Orientation Guide).

Agency Response: This suggestion will be taken under consideration but separate from this rulemaking.

Comments to allow qualified third-parties to complete the final inspection on new constructions.

Agency Response: The Agency is in the process of issuing a rule that consolidates and updates certain regulations dealing with constructions; one of those regulations is Rural Development Instruction 1924-A that outlines the final inspection requirements.

In the interim, internal guidance was approved on April 29, 2013, and on July 15, 2013, addressing alternative measures that may be used to fulfill the program's inspection requirements.

Comments to update the program's loan origination system, give packagers access to the system, and adopt industry-standard technologies.

Agency Response: The Agency launched a department wide initiative in 2009 to create an intuitive, integrated information technology platform to support its mission. Given the complexity of the initiative, implementation is multiphase and spans several years.

In the interim, projects are underway in the program to create an automated underwriting system for internal use and to modify an existing system to allow packagers to upload applications into program's loan origination system.

Comments to use tri-merged credit reports instead of residential mortgage credit reports in the program's decision making process.

Agency Response: The use of tri-merged credit reports will be considered when preparing the next solicitation for credit services, which will occur in Fiscal Year 2015, as part of the Agency's ongoing process improvements.

Comment to allow direct endorsement underwriting by Agency-approved third parties.

Agency Response: Currently, only agency staff may perform underwriting, loan approval and obligation of funds. Loan application packaging is permissible since packagers perform certain non-discretionary tasks in the origination process.

The agency is also removing the language concerning packaging fees for section 504 transactions from § 3550.52(d)(6), since this eligible cost is already covered under § 3550.102(d)(5).

For the reasons stated in the preamble, chapter XXXV, Title 7 of the Code of Federal Regulations, is amended as follows:

I. Regulatory History and Information

On November 21, 2013, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) entitled Adjustments to Limitations on Designated School Official Assignment and Study by F-2 and M-2 Nonimmigrants in the Federal Register (78 FR 69778). We received 37 comments on the proposed rule. No public meeting was requested, and none was held. DHS is adopting the rule as proposed, with minor technical corrections.

DHS's Student and Exchange Visitor Program (SEVP) manages and oversees significant elements of the process by which educational institutions interact with F, J and M nonimmigrants to provide information about their immigration status to the U.S. Government. U.S. Immigration and Customs Enforcement (ICE) uses the Student and Exchange Visitor Information System (SEVIS) to track and monitor schools, participants and sponsors in exchange visitor programs, and F, J and M nonimmigrants, as well as their accompanying spouses and children, while they are in the United States and participating in the educational system.

ICE derives its authority to manage these programs from several sources, including:

• Section 101(a)(15)(F)(i), (M)(i) and (J) of the Immigration and Nationality Act of 1952, as amended (INA), 8 U.S.C. 1101(a)(15)(F)(i), (M)(i), and (J), under which a foreign national may be admitted to the United States in nonimmigrant status as a student to attend an academic school or language training program (F nonimmigrant), as a student to attend a vocational or other recognized nonacademic institution (M nonimmigrant), or as an exchange visitor (J nonimmigrant) in an exchange program designated by the Department of State (DOS), respectively. An F or M student may enroll in a particular school only if the Secretary of Homeland Security has certified the school for the attendance of F and/or M students. See 8 U.S.C. 1372; 8 CFR 214.3.

• Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110 Stat. 3009-546 (codified at 8 U.S.C. 1372), which authorized the creation of a program to collect current and ongoing information provided by schools and exchange visitor programs regarding F, J or M nonimmigrants during the course of their stays in the United States, using electronic reporting technology where practicable, and which further authorized the Secretary of Homeland Security to certify schools to participate in F or M student enrollment.

• Section 416(c) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, 115 Stat. 272 (USA PATRIOT Act), as amended, which provides for the collection of alien date of entry and port of entry information for aliens whose information is collected under 8 U.S.C. 1372.

• Homeland Security Presidential Directive No. 2 (HSPD-2), which, following the USA PATRIOT Act, requires the Secretary of Homeland Security to conduct periodic, ongoing reviews of schools certified to accept F, J and/or M nonimmigrants to include checks for compliance with recordkeeping and reporting requirements, and authorizing termination of institutions that fail to comply. See 37 Weekly Comp. Pres. Docs. 1570, 1571-72 (Oct. 29, 2001); and

• Section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107-173, 116 Stat. 543 (codified at 8 U.S.C. 1762), which directed the Secretary to review the compliance with recordkeeping and reporting requirements under 8 U.S.C. 1372 and INA section 101(a)(15)(F), (J) and (M), 8 U.S.C. 1101(a)(15)(F), (J) and (M), of all schools 1 approved for attendance by F, J and/or M students within two years of enactment, and every two years thereafter.

Accordingly, and as directed by the Secretary, ICE carries out the Department's ongoing obligation to collect data from, certify, review, and recertify schools enrolling these students. The specific data collection requirements associated with these obligations are specified in part in legislation, see 8 U.S.C. 1372(c), and more comprehensively in regulations governing SEVP found at 8 CFR 214.3.

SEVP carries out its programmatic responsibilities through SEVIS, a Web-based data entry, collection and reporting system. SEVIS provides authorized users, such as DHS, DOS, other government agencies, SEVP-certified schools, and DOS-designated exchange visitor programs, access to reliable information to monitor F, J and M nonimmigrants for the duration of their authorized period of stay in the United States. As discussed in the NPRM, schools must regularly update information on their approved F, J and M nonimmigrants to enable government agencies to fulfill their oversight and investigation responsibilities, such as enabling accurate port of entry screening, assisting in the adjudication of immigration benefit applications, ensuring and verifying eligibility for the appropriate nonimmigrant status, monitoring nonimmigrant status maintenance, and, as needed, facilitating timely removal.

On September 16, 2011, DHS announced a “Study in the States” initiative to encourage the best and the brightest international students to study in the United States. As described in the NPRM, the initiative took various steps to enhance and improve the Nation's nonimmigrant student programs.2 This rulemaking was initiated in support of the “Study in the States” initiative and to reflect DHS's commitment to those goals. The rule improves the capability of schools enrolling F and M students to assist their students in maintaining nonimmigrant status and to provide necessary oversight on behalf of the U.S. Government. The rule also increases the attractiveness of studying in the United States for foreign students by broadening study opportunities for their spouses and improving quality of life for visiting families.

Designated school officials (DSOs) are essential to making nonimmigrant study in the United States attractive to international students and a successful experience overall. DHS charges DSOs with the responsibility of acting as liaisons between nonimmigrant students, the schools that employ the DSOs and the U.S. Government. Significantly, DSOs are responsible for making information and documents, including academic transcripts, relating to F-1 and M-1 nonimmigrant students, available to DHS for the Department to fulfill its statutory responsibilities. 8 CFR 214.3(g).

When the Immigration and Naturalization Service (INS) in 2002 established a limit of ten DSOs in order to control access to SEVIS, the INS noted that once SEVIS was fully operational, it might reconsider the numerical limits on the number of DSOs. See 67 FR 76256, 76260. Since SEVIS is now fully operational and appropriate access controls are in place, DHS has reconsidered the DSO limitation, and, with this rule, eliminates the maximum limit of DSOs in favor of a more flexible approach. The rule sets no maximum limit on the number of DSOs per campus, and instead allows school officials to nominate an appropriate number of DSOs for SEVP approval based upon the specific needs of the school.

DHS believes that concerns raised within the U.S. educational community that the current DSO limit of ten per campus is too constraining are of strong merit. While the average SEVP-certified school has fewer than three DSOs, SEVP recognizes that F and M students often cluster at schools within States that attract a large percentage of nonimmigrant student attendance. As such, schools in the three States with the greatest F and M student enrollment represent 35 percent of the overall F and M nonimmigrant enrollment in the United States.3 In schools where F and M students are heavily concentrated or where campuses are in dispersed geographic locations, the limit of ten DSOs has been problematic. The Homeland Security Academic Advisory Council (HSAAC)—an advisory committee composed of prominent university and academic association presidents, which advises the Secretary and senior DHS leadership on academic and international student issues—included in its September 20, 2012 recommendations to DHS a recommendation to increase the number of DSOs allowed per school or eliminate the current limit of ten DSOs per school. Upon review, DHS concluded that, in many circumstances, the elimination of a DSO limit may improve the capability of DSOs to meet their liaison, reporting and oversight responsibilities, as required by 8 CFR 214.3(g). Therefore, removing the limit on the number of DSOs that a school official is able to nominate for SEVP approval provides the appropriate flexibility to enhance the attractiveness of nonimmigrant study in the United States for international students and increase the program's success.

This rule does not alter SEVP's authority to approve or reject a DSO or principal designated school official (PDSO) nomination. See 8 CFR 214.3(l)(2). SEVP reviews each DSO nomination as part of the school certification process, and requires proof of the nominee's U.S. citizenship or lawful permanent resident status. SEVP further considers whether the nominee has served previously as a DSO at another SEVP-approved school and whether the individual nominee should be referred to other ICE programs for further investigation. Until the school and the nominee have been approved by SEVP, access to SEVIS is limited solely to the school official submitting the certification petition, and is restricted to entry of information about the school and the DSO nominees necessary to permit the school to initiate the Form I-17 petition process for approval. The nominee, if he or she is not the submitting school official, has no access to SEVIS while the application is pending. Any greater access to SEVIS, prior to approval, would undermine the nomination process and open the SEVIS program to possible misuse. The rule codifies this limitation. See new 8 CFR 214.3(l)(1)(iii). The rule also maintains SEVP's authority to withdraw a previous DSO or PDSO designation by a school of an individual. See 8 CFR 214.3(l)(2). Reasons for withdrawal include change in or loss of employment, as well as noncompliance with SEVP regulations. In order to withdraw for noncompliance, SEVP would make a determination of noncompliance following suspension of a DSO's SEVIS access, individually or institutionally. DHS is of the opinion that the increased flexibility afforded by this rulemaking to nominate more than ten DSOs will permit schools to better meet students' needs as well as the Department's reporting and other school certification requirements.

This rulemaking also amends the benefits allowable for the accompanying spouse and children (hereafter referred to as F-2 or M-2 nonimmigrants) of an F-1 or M-1 student. On May 16, 2002, the former INS proposed to prohibit full-time study by F-2 and M-2 spouses and to restrict such study by F-2 and M-2 children to prevent an alien who should be properly classified as an F-1 or M-1 nonimmigrant from coming to the United States as an F-2 or M-2 nonimmigrant and, without adhering to other legal requirements, attending school full-time. 67 FR 34862, 34871. The INS proposed to permit avocational and recreational study for F-2 and M-2 spouses and children and, recognizing that education is one of the chief tasks of childhood, to permit F-2 and M-2 children to be enrolled full-time in elementary through secondary school (kindergarten through twelfth grade). Id. The INS believed it unreasonable to assume that Congress would intend that a bona fide nonimmigrant student could bring his or her children to the United States but not be able to provide for their primary and secondary education. Id.; see also 67 FR 76256, 76266. The INS further proposed that if an F-2 or M-2 spouse wanted to enroll full-time in a full course of study, the F-2 or M-2 spouse should apply for and obtain a change of his or her nonimmigrant classification to that of an F-1, J-1, or M-1 nonimmigrant. 67 FR 34862, 34871.

The INS finalized these rules on December 11, 2002. 67 FR 76256 (codified at 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii)). In the final rule, the INS noted that commenters suggested the INS remove the language “avocational or recreational” from the types of study that may be permitted by F-2 and M-2 dependents, as DSOs may have difficulty determining what study is avocational or recreational and what is not. In response to the comments, the INS clarified that if a student engages in study to pursue a hobby or if the study is that of an occasional, casual, or recreational nature, such study may be considered as avocational or recreational. 67 FR 76266.

DHS maintains the long-standing view that an F-2 or M-2 nonimmigrant who wishes to engage in a full course of study in the United States, other than elementary or secondary school study (kindergarten through twelfth grade), should apply for and obtain approval to change his or her nonimmigrant classification to F-1, J-1, or M-1. See 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii). However, as described in the NPRM, because DHS recognizes that the United States is engaged in a global competition to attract the best and brightest international students to study in our schools, permitting access of F-2 or M-2 nonimmigrants to education while in the United States would help enhance the quality of life for many of these visiting families. The existing limitations on study to F-2 or M-2 nonimmigrant education potentially deter high quality F-1 and M-1 students from studying in the United States.4

Accordingly, DHS is relaxing its prohibition on F-2 and M-2 nonimmigrant study by permitting F-2 and M-2 nonimmigrant spouses and children to engage in study in the United States at SEVP-certified schools that does not amount to a full course of study. Under this rule, F-2 and M-2 nonimmigrants are permitted to enroll in less than a “full course of study,” as defined at 8 CFR 214.2(f)(6)(i)(A) through (D) and 8 CFR 214.2(m)(9)(i)-(iv), at an SEVP-certified school and in study described in 8 CFR 214.2(f)(6)(i)(A) through (D) and 8 CFR 214.2(m)(9)(i)-(iv).5 Regulations at 8 CFR 214.2(f)(6)(i)(B) and 8 CFR 214.2(m)(9)(i) currently define full course of study at an undergraduate college or university (F nonimmigrants) or at a community college or junior college (M nonimmigrants) to include lesser course loads if the student needs fewer than 12 hours to complete a degree or specific educational objective. This limited exception, which defines a course load of less than 12 hours as a full course of study, only applies to F-1 and M-1 nonimmigrants and will not apply to F-2 or M-2 dependents. Accordingly, an F-2 or M-2 dependent taking less than 12 hours cannot be deemed to be engaging in a full course of study. As stated in the NPRM, over time such enrollment in less than a full course of study could lead to attainment of a degree, certificate or other credential. To maintain valid F-2 or M-2 status, however, the F-2 or M-2 nonimmigrant would not be permitted at any time to enroll in a total number of credit hours that would amount to a “full course of study,” as defined by regulation.

In addition, the change limits F-2 and M-2 study, other than avocational or recreational study, to SEVP-certified schools, in order to make it more likely that the educational program pursued by the F-2 or M-2 nonimmigrant is a bona fide program and that studies at the school are unlikely to raise national security concerns. The F-2 or M-2 nonimmigrants can still participate full-time in avocational or recreational study (i.e., hobbies and recreational studies). If an F-2 or M-2 nonimmigrant wants to enroll in a full course of academic study, however, he or she needs to apply for and obtain approval to change his or her nonimmigrant classification to F-1, J-1 or M-1. Similarly, as noted, the rule does not change existing regulations allowing full-time study by children in elementary or secondary school (kindergarten through twelfth grade).

This rule does not change the recordkeeping and reporting responsibilities of DSOs with regard to F-2 or M-2 nonimmigrants to DHS. DSOs at the school the F-1 or M-1 student attends retain reporting responsibility for maintaining F-2 or M-2 nonimmigrant personal information in SEVIS. See 8 CFR 214.3(g)(1). In addition, to facilitate maintenance of F or M nonimmigrant status and processing of future applications for U.S. immigration benefits, F and M nonimmigrants are encouraged to retain personal copies of the information supplied for admission, visas, passports, entry, and benefit-related documents indefinitely.6 Similarly, under this rule, DHS recommends, as it did in the NPRM, that an F-2 or M-2 nonimmigrant should separately maintain (i.e., obtain and retain) his or her academic records. As F and M nonimmigrants already are encouraged to keep a number of immigration-related records, the suggested additional maintenance of academic records in an already existing file of immigration records will impose minimal marginal cost. This rule does not extend F-2 or M-2 nonimmigrants' access to any other nonimmigrant benefits beyond those specifically identified in regulations applicable to F-2 or M-2 nonimmigrants. See 8 CFR 214.2(f)(15) and 8 CFR 214.2(m)(17).

DHS received a total of 37 comments on the proposed rule. After reviewing all the comments, DHS is adopting the rule as proposed, with minor technical corrections. Of the 37 comments received, 27 commenters supported the proposal to remove the limit on the number of DSO nominations per campus. These commenters noted that removing this limitation would permit schools to plan their staffing requirements more efficiently across campuses. In addition, the commenters suggested that permitting an increased number of DSOs would permit schools to better serve their students and would enhance their ability to meet SEVIS reporting and oversight requirements. Two commenters, however, recommended against the proposed change because of national security concerns. Because the commenters did not elaborate on the potential concerns they believed might result, and DHS does not consider removing the limitation on the number of DSOs per campus to negatively affect national security, DHS is adopting this provision as proposed.

The majority of comments DHS received in response to the proposed rule supported the proposal to permit F-2 and M-2 nonimmigrants to study at SEVP-approved schools on a less than full-time basis. Many of these commenters argued that the change would enhance the quality of life of F-2 and M-2 nonimmigrants and would assist the United States in attracting the “best and brightest” students to U.S. institutions. Of these commenters, four asserted that the rule change would have a positive effect on the U.S. economy, particularly with more students paying tuition and buying books and supplies. Two of the commenters also noted that the proposed change would have the benefit of enabling F-2 and M-2 nonimmigrants to learn English at SEVP-approved schools, thereby facilitating their adjustment to life in the United States. One commenter specifically noted appreciation that DHS clarified that an F-2 nonimmigrant could complete a degree, so long as all study at SEVP-approved schools was completed on a less than full-time basis. DHS further notes that this same clarification also applies to an M-2 nonimmigrant, again, so long as all study at SEVP-approved schools occurs on a less than full-time basis.

Four commenters suggested that the regulation change would be improved if it permitted F-2 and M-2 nonimmigrants to study full-time, in addition to permitting them to engage in less than a full course of study. The commenters noted that dependents of other nonimmigrant categories are permitted to study full-time, for example, the J-2 spouses of J-1 exchange visitors. DHS appreciates these comments and has considered them carefully. However, DHS is of the opinion that permitting F-2 and M-2 nonimmigrants to engage in a full course of study would blur fundamental distinctions between the F-1 and F-2, and M-1 and M-2 classifications, respectively. Moreover, it would be illogical to provide greater flexibility for study by F-2 or M-2 dependants than is afforded to F-1 or M-1 principals, respectively. The INA requires F-1 and M-1 principals to pursue a full course of study. INA sections 101(a)(15)(F)(i) and (M)(i); 8 U.S.C. 1101(a)(15)(F)(i) and (M)(i). Congress intended F-1 and M-1 principals to have greater educational opportunities, not fewer, than their F-2 and M-2 dependents. In establishing the F-1 and M-1 classifications for principal nonimmigrant students separate from the F-2 and M-2 classifications for spouses and children, respectively, Congress clearly did not intend the classifications to be synonymous. Accordingly, it would not be appropriate to permit F-2 and M-2 dependents to engage in either full-time or less than full-time study, at the discretion of the individual F-2 or M-2 dependent, when such discretion is not afforded to the F-1 or M-1 principal. DHS thus has maintained the prohibition on full-time study by F-2 and M-2 nonimmigrants.

With respect to the commenters' observation about J-2 dependent spouses, the purpose of the J nonimmigrant classification is fundamentally different from that of the F and M classifications. Admission in J nonimmigrant status permits engagement in multiple activities other than full-time study (e.g., to serve as researchers or professors, or performing other professional duties in the United States). The purpose of the Exchange Visitor Program (J visa) “is to further the foreign policy interest of the United States by increasing the mutual understanding between the people of the United States and the people of other countries by means of mutual educational and cultural exchanges.” 9 Foreign Affairs Manual 41.62 N2. Specific Exchange Visitor programs are designated by DOS, not by DHS, and their parameters are set by DOS to advance U.S. foreign policy interests. The same foreign policy interests that apply to J-1 nonimmigrants and their dependents are not implicated in the F and M nonimmigrant context. The primary purpose of the F-1 and M-1 nonimmigrant classifications, in contrast with the J classification, is to permit foreign nationals to enter the United States solely to engage in full-time study. DHS believes that the best means to preserve the integrity of the F-1 and M-1 classifications, and to ensure these classifications remain the primary vehicles for full-time study, is to require a dependent in F or M status who wishes to engage in a full course of study to make such intent evident by applying for and receiving a change of status to F-1 or M-1.

One commenter advocating for full-time F-2 and M-2 study stated that the limit to less than full-time study is unnecessary, as dependent students do not pose any additional security risk because SEVIS tracks them. DHS disagrees with this commenter. The recordkeeping requirements for F-1 and M-1 nonimmigrants in SEVIS are more comprehensive than they are for F-2 and M-2 dependents, which is a derivative status. Recognizing this, any full-time study in the F and M nonimmigrant classifications should occur only after receiving F-1 or M-1 status through the already existing and available process of changing status. Allowing F-2 and M-2 dependents to take a full course of study would permit their participation in full-time study without the fuller vetting and oversight required for F-1 and M-1 nonimmigrants in SEVIS. DHS therefore disagrees with the commenter that dependents would pose no additional security risk if permitted to take a full course of study In addition, allowing F-2 and M-2 dependents to take a full course of study could lead to manipulation of F-1 and M-1 visas by allowing one family member who is accepted as an F-1 student to facilitate the full-time enrollment of all other dependents in their own courses of study.

Three commenters suggested that F-2 and M-2 nonimmigrants be permitted to commence their full-time study as soon as they apply for a change of status to F-1 or M-1. One of these commenters also requested that DHS revise the regulations governing change of status to specify that a nonimmigrant who is granted a change of status to F-1 or M-1 must begin the full course of study no later than the next available session or term after the change of status has been approved. The commenter suggested that individuals granted a change of status to F-1 or M-1 often are concerned that they might lose their new status if they do not enroll in classes immediately, but that this may be impossible if the approval is received midway during the school term or session.

DHS continues to maintain that a foreign national who wishes to engage in a full course of study must apply for and receive a change of status to F-1 or M-1 prior to commencing a full course of study. See 8 CFR 214.2(f)(15)(ii)(B), 214.2(m)(17)(ii)(B) (2013); see also 8 CFR 214.2(f)(15)(ii)(A)(2), 214.2(m)(17)(ii)(A)(2), as finalized herein. Approval of the change of status application before engaging in a full course of study is necessary to maintain the integrity of data in SEVIS, as well as to ensure that appropriate distinctions exist between the F-1 and M-1 classifications and their dependent classifications. DHS declines to elaborate in this rulemaking on the issue of when a nonimmigrant granted a change of status to F-1 or M-1 must commence the full course of study. That issue is beyond the scope of the proposed rulemaking, which focused on permissible study by F-2 and M-2 nonimmigrants, rather than how F-1 and M-1 nonimmigrants should comply with the terms and conditions of their status.

In addition to the comments discussed above, DHS received a number of individual comments on discrete issues. These include one comment requesting that DHS consider extending the option to apply for employment authorization for F-2 and M-2 nonimmigrants with U.S. Citizenship and Immigration Services (USCIS). DHS appreciates the commenter's interest but has determined not to extend employment authorization to F-2 and M-2 nonimmigrants as part of this rulemaking. The rule's changes to F-2 and M-2 opportunities are intended to increase access of F-2 or M-2 nonimmigrants to education while in the United States and not to increase employment opportunities.

DHS received two comments about the number of training hours and the wage rate for DSOs used in the economic analysis of the rulemaking. The commenters asserted that the number of training hours required for DSOs is closer to a minimum of 90 hours of training in the first year, not seven hours as DHS estimated. The commenters further suggested that DSOs be categorized as professional staff, not administrative, for the purpose of calculating their wage rate.

SEVP does not currently require any specific training for DSOs; however, SEVP does require that DSOs sign a certification that they are familiar with the appropriate regulations and intend to comply with them. In addition, SEVP provides an Internet-based voluntary SEVIS training, which DSOs are strongly encouraged to complete. SEVP recognizes that many schools go above and beyond this, and commends these schools. However, other DSOs will not complete any training. Moreover, schools that increase the number of employed DSOs beyond ten as a result of this rule likely already have large offices of international student advisors that may require little to no additional training to perform DSO duties. Because the duties and initial training of DSOs varies widely among schools, with some being above the minimum suggested training by SEVP and others below, DHS believes the seven-hour training estimate is appropriate for the flexibility this rulemaking intends to provide schools.

DHS agrees with the commenters that a different wage rate is appropriate for DSOs and has amended the wage rate estimation in this final rule. DHS is supportive of DSOs and the importance of their role in serving as a link between nonimmigrant students, schools and SEVP. DHS agrees that DSOs are professionals and perform important duties. The occupation code chosen to estimate the DSO wage rate for the analysis is not meant to undermine the importance of the role of the DSO. Rather, it serves as a proxy for the basic job duties required by SEVP of DSOs. DSOs provide advice to students regarding maintenance of their nonimmigrant status and maintaining enrollment, provide information on participation in programs of study in SEVIS, authorize optional practical training, and report to SEVP if a student has violated the conditions of his or her status. Individuals approved as DSOs may also perform other job duties as an element of their employment with schools, which are outside of those required by SEVP, to enhance nonimmigrants' stays in the United States. As noted by one commenter, these duties may include responsibilities ranging from “airport pick-ups, to facilitating intercultural communications workshops.” Because schools rely on DSOs to counsel nonimmigrant students of their responsibilities and maintain their nonimmigrant status, and DHS relies on DSOs to ensure the integrity of the program, DHS has amended the category used to estimate the DSO wage rate. In this final rule, DHS revises the wage rate from BLS category 43-9199 Office and Administrative Support Workers, All Other, to BLS category 21-1012 Educational, Guidance, School, and Vocational Counselors. See the Executive Orders 12866 and 13563: Regulatory Planning and Review section below for this revision.

Another commenter addressed the procedures used by SEVP to adjudicate changes to DSOs. The commenter expressed concern at the pace of adjudicating requests to add or remove DSOs, and also requested that SEVP publish the criteria it uses in adjudicating changes to DSOs, as well as establish an appeals process for denials of such requests. DHS appreciates these comments, but notes that they are outside the scope of the proposed rulemaking, which focused on the more discrete issue of the regulatory limitation on the number of DSOs permitted at each campus. SEVP, however, is working to make its adjudications process more efficient in the future.

Several commenters identified areas where the rulemaking could benefit from additional clarification or the correction of possible errors. One commenter suggested that DHS clarify whether study of English as a second language (ESL) or intensive English is considered a vocational/recreational or academic study. DHS declines to define whether ESL is properly categorized as a vocational/recreational or academic study because this is outside the scope of the proposed rulemaking. Another commenter questioned whether F-2 and M-2 dependents would be permitted to take only those courses listed as part of the school's academic/certificate programs on the school's Form I-17, or whether F-2 and M-2 dependents would be able to enroll in any program. The regulation should not be interpreted to permit an F-2 or M-2 to enroll in courses in any program offered at an SEVP-certified school, but only a course of study that is SEVP-certified. The same commenter also inquired whether the proposed rule intended to permit full-time “recreational” study only at SEVP-certified schools and only in non-academic, non-accredited courses, or whether the rule would permit F-2 and M-2 dependents to enroll full-time at SEVP-certified schools in non-credit courses. The regulation does not expand opportunity for full-time study of any type for F-2 and M-2 dependents. The regulations continue to provide that F-2 and M-2 dependents may engage in study that is avocational or recreational in nature, up to and including on a full-time basis.

Additionally, one commenter pointed out that the language in the preamble of the proposed rulemaking at 78 FR 69781, explaining the definition of full course of study, implied incorrectly that F nonimmigrants only may enroll at colleges or universities, and not at community colleges or junior colleges. DHS appreciates this comment and agrees that a community college or junior college may appropriately enroll an F nonimmigrant.

Finally, DHS is making four technical corrections to the proposed regulatory text. One commenter noted that the proposed regulatory text at 8 CFR 214.2(f)(15)(ii)(C) referenced paragraph (f)(15)(ii)(A)(2), whereas it should include both paragraphs (A)(1) and (A)(2). DHS agrees with the commenter that this was an error and accordingly has revised the final rule to refer to (f)(15)(ii)(A), so as to apply to both paragraphs. In the course of preparing this final rule, DHS also recognized additional areas of the proposed regulatory text where further revision was necessary for purposes of accuracy and clarity. The proposed text located at 8 CFR 214.2(m)(17)(ii)(A)(1) had omitted a reference to the courses described in 8 CFR 214.2(f)(6)(i)(A)-(D) as a type of course at an SEVP-certified school that an M-2 spouse or M-2 child may enroll in as less than a full course of study. With this rule, courses of study approved under both F and M study are available to both F-2 and M-2 nonimmigrants. Lastly, DHS added a reference to 8 CFR 214.2(m)(14) in the new provision authorizing limited F-2 study at SEVP-certified schools to clarify that F-2 spouses and children are not eligible to engage in any type of employment or practical training during their studies; correspondingly, DHS added a reference to 8 CFR 214.2(f)(9)-(10) in the new provision authorizing limited M-2 study at SEVP-certified schools for the same reason.

DHS developed this rule after considering numerous statutes and executive orders related to rulemaking. The below sections summarize our analyses based on a number of these statutes or executive orders.

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) has not designated this final rule as a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this final rule.

The rule eliminates the limit on the number of DSOs a school may have and establishes eligibility for F-2 and M-2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. If a particular school does not wish to add additional DSOs, this rule imposes no additional costs on that school. Based on feedback from the SEVP-certified schools, however, DHS believes up to 88 schools may choose to take advantage of this flexibility and designate additional DSOs. These SEVP-certified schools would incur costs related to current DHS DSO documentation requirements and any training DSOs may undertake. DHS estimates the total 10-year discounted cost of allowing additional DSOs to be approximately $223,000 at a seven percent discount rate and approximately $264,000 at a three percent discount rate. Regarding the provision of the rule that establishes eligibility for less than a full course of study by F-2 and M-2 nonimmigrants, DHS is once again providing additional flexibilities. As this rule does not require the F-2 or M-2 nonimmigrant to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements, DHS does not believe there are any costs associated with establishing eligibility for F-2 and M-2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools.

The only anticipated costs for SEVP-certified schools to increase the number of DSOs above the current limit of ten per school or campus derive from the existing requirement for reporting additional DSOs to DHS, and any training that new DSOs would undertake. DHS anticipates the number of schools that will avail themselves of this added flexibility will be relatively small. As of April 2012, there are 9,888 SEVP-certified schools (18,733 campuses), with approximately 30,500 total DSOs, and an average of 3.08 DSOs per school. However, there are only 88 SEVP-certified schools that currently employ the maximum number of DSOs.

DHS is unable to estimate with precision the number of additional DSOs schools may choose to add. While some of the 88 SEVP-certified schools that currently employ the maximum number of DSOs may not add any additional DSOs, others may add several additional DSOs. DHS's best estimate is that these 88 SEVP-certified schools will on average designate three additional DSOs, for a total of 264 additional DSOs.

DHS estimates that current documentation requirements, as well as training a DSO might undertake to begin his or her position, equate to approximately seven hours total in the first year. DHS does not track wages paid to DSOs; however, in response to a comment received on the NPRM, DHS is revising the wage rate used to estimate DSO wages. For this final rule, we are using the U.S. Department of Labor, Bureau of Labor Statistics occupation Educational, Guidance, School, and Vocational Counselors occupational code as a proxy for DSOs.7 The average wage rate for this occupation is estimated to be $27.00 per hour.8 When the costs for employee benefits such as paid leave and health insurance are included, the full cost to the employer for an hour of DSO time is estimated at $37.80.9 Therefore, the estimated burden hour cost as a result of designating 264 additional DSOs is estimated at $69,854 in the first year (7 hours × 264 DSOs × $37.80). On a per-school basis, DHS expects these SEVP-certified schools to incur an average of $794 dollars in costs in the initial year (7 hours × 3 new DSOs per school × $37.80). DHS notes that there are no recurrent annual training requirements mandated by DHS for DSOs once they have been approved as a DSO.

After the initial year, DHS expects the SEVP-certified schools that designate additional DSOs to incur costs for replacements, as these 264 new DSOs experience normal turnover. Based on information from the Bureau of Labor Statistics, we estimate an average annual turnover rate of approximately 37 percent.10 Based on our estimate of 264 additional DSOs as a result of this rulemaking, we expect these schools will designate 98 replacement DSOs annually (264 DSOs × 37 percent annual turnover) in order to maintain these 264 additional DSOs. As current training and documentation requirements are estimated at seven hours per DSO, these SEVP-certified schools would incur total additional costs of $25,931 annually (7 hours × 98 replacement DSOs × $37.80) after the initial year. On a per school basis, DHS expects these schools to incur an average of $294 dollars of recurring costs related to turnover after the initial year (7 hours × 3 new DSOs per school × 37 percent annual turnover × $37.80).

This rule addresses concerns within the U.S. education community that the current DSO limit of ten is too constraining. For example, allowing schools to request additional staff able to handle DSO responsibilities will increase flexibility in school offices and enable them to better manage their programs. This flexibility is particularly important in schools where F and M nonimmigrants are heavily concentrated or where instructional sites are in dispersed geographic locations. It will also assist schools in coping with seasonal surges in data entry requirements (e.g., start of school year reporting).

As of June 2012, SEVIS records indicate that there are 83,354 F-2 nonimmigrants in the United States, consisting of approximately 54 percent spouses and 46 percent children. Though both spouses and children may participate in study that is less than a full course of study at SEVP-certified schools under this rule, DHS assumes that spouses are more likely to avail themselves of this opportunity because most children are likely to be enrolled full-time in elementary or secondary education (kindergarten through twelfth grade). Though there may be exceptions to this assumption, for example, a child in high school taking a college course, the majority of F-2 nonimmigrants benefitting from this provision are likely to be spouses. DHS only uses this assumption to assist in estimating the number of F-2 nonimmigrants likely to benefit from this rule, which could be as high as 45,011 (83,354 × 54 percent), if 100 percent of F-2 spouses participate, but is likely to be lower as DHS does not expect that all F-2 spouses would take advantage of the opportunity. DHS does not believe there are any direct costs associated with establishing eligibility for F-2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools. The rule would not require the F-2 nonimmigrant to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements. In the NPRM, DHS requested comment on these assumptions and estimates. No comments were received in response to this request.

As of June 2012, SEVIS records indicate that there are 578 M-2 nonimmigrants in the United States. Pursuant to this rulemaking, these M-2 spouses and children will be eligible to take advantage of the option to participate in study that is less than a full course of study at SEVP-certified schools. Approximately 39 percent of M-2 nonimmigrants are spouses and 61 percent are children. Again, DHS assumes that spouses would comprise the majority of M-2 nonimmigrants to benefit from this provision. This number could be as high as 225 M-2 nonimmigrants (578 × 39 percent), but is likely to be lower as DHS does not expect that all M-2 spouses would take advantage of the opportunity. Under the same procedures governing F-2 nonimmigrants, the M-2 nonimmigrants would not be required to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements. In the NPRM, DHS requested comment on these assumptions and estimates. No comments were received in response to this request.

The rule provides greater incentive for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students in F-1 or M-1 status to enroll in study at a SEVP-certified school if not a full course of study. DHS recognizes that the United States is engaged in a global competition to attract the best and brightest international students to study in our schools. The ability of F-2 or M-2 nonimmigrants to have access to education while in the United States is in many instances central to maintaining a satisfactory quality of life for these visiting families.

The rule eliminates the limit on the number of DSOs a school may have and establishes eligibility for F-2 and M-2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. If a particular school does not wish to add additional DSOs, this rule imposes no additional costs on that school. DHS believes up to 88 schools may choose to take advantage of this flexibility and designate additional DSOs. These SEVP-certified schools would incur costs related to current DHS DSO training and documentation requirements; DHS estimates the total 10-year discounted cost to be approximately $223,000 at a seven percent discount rate and approximately $264,000 at a three percent discount rate. DHS does not believe there are any costs associated with establishing eligibility for F-2 and M-2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools as this rule does not require the F-2 or M-2 nonimmigrant to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements.

The table below summarizes the total costs and benefits of the rule to allow additional DSOs at schools and permit accompanying spouses and children of nonimmigrant students of F-1 or M-1 status to enroll in study at a SEVP-certified school if not a full course of study. In the NPRM, DHS welcomed public comments that specifically addressed the nature and extent of any potential economic impacts of the proposed amendments that we may not have identified. DHS specifically requested comments in the NPRM on whether there were any additional burdens imposed on F-2 and M-2 nonimmigrants related to additional record storage costs. No comments were received in response to this request.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule eliminates the limit on the number of DSOs a school may nominate and permits F-2 and M-2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. Although some of the schools impacted by these changes may be considered as small entities as that term is defined in 5 U.S.C. 601(6), the effect of this rule is to benefit those schools by expanding their ability to nominate DSOs and to enroll F-2 and M-2 nonimmigrants for less than a full course of study.

In the subsection above, DHS has discussed the costs and benefits of this rule. The purpose of this rule is to provide additional regulatory flexibilities, not impose costly mandates on small entities. DHS again notes that the decision by schools to avail themselves of additional DSOs or F-2 or M-2 nonimmigrants who wish to pursue less than a full course of study is an entirely voluntary one and schools will do so only if the benefits to them outweigh the potential costs. In particular, removing the limit on the number of DSOs a school may designate allows schools the flexibility to better cope with seasonal surges in data entry requirements due to start of school year reporting. Accordingly, DHS certifies this rule will not have a significant economic impact on a substantial number of small entities. DHS received no comments challenging this certification.

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

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

All Departments are required to submit to OMB for review and approval, any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995), 44 U.S.C. 3501-3520. This information collection is covered under the existing Paperwork Reduction Act control number OMB No. 1653-0038 for the Student and Exchange Visitor Information System (SEVIS). This rule calls for no new collection of information under the Paperwork Reduction Act.

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under the Order and have determined that it does not have implications for federalism.

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

This rule will not cause a taking of private property or otherwise have takings implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not a significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes or on the distribution of power and responsibilities between the federal government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This final rule is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

The U.S. Department of Homeland Security Management Directive (MD) 023-01 establishes procedures that DHS and its Components use to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-1508. CEQ regulations allow federal agencies to establish categories of actions which do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD 023-01 lists the Categorical Exclusions that DHS has found to have no such effect. MD 023-01 app. A tbl.1.

For an action to be categorically excluded, MD 023-01 requires the action to satisfy each of the following three conditions:

(1) The entire action clearly fits within one or more of the Categorical Exclusions;

(2) The action is not a piece of a larger action; and

(3) No extraordinary circumstances exist that create the potential for a significant environmental effect. MD 023-01 app. A § 3.B(1)-(3).

Where it may be unclear whether the action meets these conditions, MD 023-01 requires the administrative record to reflect consideration of these conditions. MD 023-01 app. A § 3.B.

Here, the rule amends 8 CFR 214.2 and 214.3 relating to the U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program. This rule removes the regulatory cap of ten designated school officials per campus participating in the SEVP and permits certain dependents to enroll in less than a full course of study at SEVP-certified schools.

ICE has analyzed this rule under MD 023-01. ICE has made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule clearly fits within the Categorical Exclusion found in MD 023-01, Appendix A, Table 1, number A3(d): “Promulgation of rules . . . that interpret or amend an existing regulation without changing its environmental effect.” This rule is not part of a larger action. This rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this rule is categorically excluded from further NEPA review.

For the reasons discussed in the preamble, DHS amends Chapter I of Title 8 of the Code of Federal Regulations as follows:

Table of Contents I. Background and Authority II. Synopsis of the Rule III. Regulatory Procedures, Justification for Final Rule Administrative Procedure Act Review Under Executive Order 12866 Review Under the Regulatory Flexibility Act Review Under the Paperwork Reduction Act Review Under the National Environmental Policy Act of 1969 Review Under Executive Order 13132 Review Under Executive Order 12988 Review Under the Unfunded Mandates Reform Act of 1995 Review Under the Treasury and General Government Appropriations Act, 1999 Review Under Executive Order 12630 Review Under the Treasury and General Government Appropriations Act, 2001 Review Under Executive Order 13211 Congressional Notification IV. Approval of the Office of the Secretary I. Background and Authority

Section 161 k. of the Atomic Energy Act of 1954 (AEA), as amended by Pub. L. 105-394 (codified at 42 U.S.C. 2201(k)), empowers the Secretary of Energy (“the Secretary”) to authorize designated members, officer, employees, contractors, and subcontractors of the Department of Energy (DOE) to carry firearms while discharging their official duties. Section 161 k. further provides that the Secretary may authorize these designated officials to make an arrest without a warrant for any federal crime regarding the property of the United States in the custody of DOE or a DOE contractor and for any federal felony regarding the property of the United States in the custody of DOE or a DOE contractor that a designated official reasonably believes is being or has been committed. Lastly, section 161 k. authorizes the Secretary to issue guidelines, with the approval of the Attorney General, to implement this authority.

The Secretary has previously exercised this authority to sanction arrests without warrants for certain federal crimes through the regulation at 10 CFR 1047.4. This section enumerates the federal crimes for which a DOE protective force officer may execute a warrantless arrest. These crimes are incorporated by reference to the appropriate section of the United States Code. Consistent with section 161 k. of the AEA, however, 10 CFR 1047.4 makes clear that such authority is limited to the included crimes and may only be exercised “if the property of the United States which is in the custody of the DOE or its contractors is involved.” Additionally, 10 CFR 1047.4(b) and 10 CFR 1047.4(c) set forth the necessary facts to effectuate a valid warrantless arrest for a felony and a misdemeanor, respectively. 10 CFR 1047.4(b) states that an arrest may be executed on the basis of an enumerated felony either if it is committed in the presence of a DOE protective force officer or if a DOE protective force officer reasonably believes that a felony has been or is being committed. In contrast, 10 CFR 1047.4(c) states that an arrest may only be executed on the basis of an enumerated misdemeanor if it occurs in the presence of a DOE protective force officer.

With this rule, DOE is establishing a new subsection within 10 CFR 1047.4(a)(1) to add 18 U.S.C. 111 (“Assaulting, resisting, or impeding certain officers or employees”) to the list of enumerated federal crimes for which DOE protective force officers that are federal employees 1 may execute a warrantless arrest. In relevant part, this statute criminalizes the activity of anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties.” 18 U.S.C. 111. As defined in 18 U.S.C. 1114, section 111 applies to actions taken against “any officer or employee of the United States or of any agency in any branch in the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.” Specifically, DOE is adding reference to felony and misdemeanor violations of 18 U.S.C. 111 at 10 CFR 1047(a)(1)(iii). To retain consistency, DOE is also amending 10 CFR 1047.4(b) and 10 CFR 1047.4(c) to incorporate the newly added 10 CFR 1047(a)(1)(iii).

DOE believes that this change is necessary to ensure that DOE protective force officers that are federal employees may effectively protect United States property in the custody of DOE and DOE contractors. Authorizing DOE protective force officers that are federal employees to arrest individuals who impede the official duties of DOE protective force personnel allows them to immediately neutralize any individual who poses an existing and ongoing threat to both the integrity of the property of the United States and the ability of DOE to retain custody of such property.

The 18 U.S.C. 111 statute is similar in nature to many of the crimes for which the Secretary has previously delegated arrest authority by reference in 10 CFR 1047.4(a), including civil disorder, 18 U.S.C. 231, conspiracy, 18 U.S.C. 371, damage to or destruction of government property, 18 U.S.C. 2112, destruction of motor vehicles, 18 U.S.C. 33, unlawful use of explosives, 18 U.S.C. 844(f), and sabotage, 18 U.S.C. 2151, 2153-2156. See 50 FR 30926 (July 31, 1985).

Pursuant to authority at 5 U.S.C. 553(b)(B), DOE finds good cause to waive the requirement to provide prior notice and an opportunity for public comment for this rulemaking as such procedures would be impracticable and contrary to the public interest. DOE believes that this change is necessary to ensure that Federal Agents may effectively protect ongoing shipments of nuclear weapons, nuclear components and special nuclear materials in the custody of DOE. Authorizing DOE protective force officers to detain or arrest individuals who impede the official duties of DOE protective force personnel allows them to act quickly to disrupt situations that pose an existing and ongoing threat to both the integrity of the property of the United States and the ability of DOE to retain custody of such property. The extraordinary sensitivity of the cargo in the custody of DOE warrants immediate action to reduce the risks to DOE Federal Agents' ability to carry out their protective function.

For the same reason, DOE finds good cause pursuant to authority at 5 U.S.C. 553(d)(3), to waive the requirement that this rule be delayed in effective date 30 days after the date of publication. As such, this rule will be effective April 29, 2015.

This rulemaking is not a “significant regulatory action” under section 3(f)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563 because it will not have an economic impact of $100 million, it does not create a serious inconsistency with other agency actions, will not materially impact any budget, and does not raise novel legal or policy issues. Accordingly, today's action was not subject to review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site (http://energy.gov/gc/office-general-counsel).

Because this rule is not subject to the requirement that the agency provide prior notice and an opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act are inapplicable to this rulemaking. DOE notes that this final rule would empower DOE protective force officers that are federal employees to arrest individuals who violate 18 U.S.C. 111 when such a violation involves the property of the United States in the custody of DOE or a DOE contractor. This rule is a matter of law enforcement procedure and does not impose any requirement on any small entities.

This rulemaking imposes no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

Pursuant to the National Environmental Policy Act of 1969, DOE has determined that this rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemakings “amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amending.” The arrest authority of DOE protective force officers has no significant impact on the environment. Therefore, DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this rule.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have a process of accountability to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. This publication is intended to put both States and the general public on notice of this final rule.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law; this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. 2 U.S.C. 1532(a), (b). The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820 (Mar. 18, 1997). DOE's policy statement is also available at http://energy.gov/gc/office-general-counsel. This final rule contains neither an intergovernmental mandate nor a mandate that may result in the expenditure of $100 million or more in any year, so the UMRA does not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, an agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

DOE has concluded that this regulatory action is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the final rule.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of the Secretary of Energy has approved the issuance of this final rule.

For the reasons set forth in the preamble, DOE is amending part 1047 of chapter X of title 10 of the Code of Federal Regulations, to read as set forth below:

The Federal Deposit Insurance Corporation (“FDIC”) is correcting a typographical error in the final rule that published in the Federal Register on July 21, 2014 (79 FR 42183), which caused the unintended deletion of §§ 346.2 through 346.10.

For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation corrects 12 CFR chapter III by revising part 346 as set forth below:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 99-01-05 R1, Amendment 39-17688 (78 FR 73997, December 10, 2013; corrected 78 FR 79599, December 31, 2013), (“AD 99-01-05 R1”). AD 99-01-05 R1 applied to certain aircraft equipped with wing lift struts. The NPRM published in the Federal Register on December 31, 2014 (79 FR 78729). The NPRM was prompted by a report that Piper Aircraft, Inc. (Piper) Models J-3, J3C-65 (Army L-4A), J3P, J4B, and J4F airplanes should be added to the Applicability section. We were also informed of a serial number overlap between Piper Model PA-18s listed in AD 99-01-05 R1 and Piper Model PA-19 (Army L-18C). Certain serial numbers listed for Model PA-18s should also be listed under Model PA-19 (Army L-18C). The NPRM proposed to retain all requirements of AD 99-01-05 R1 and add airplanes to the Applicability section. We are issuing this AD to correct the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 78729, December 31, 2014) and the FAA's response to each comment.

Joe Barr stated that LAVIA ARGENTINA S.A. (LAVIASA) Models PA-25, PA-24-235, and PA-25-260 airplanes should be exempt from the requirement in paragraph (m) of the proposed AD to install a “NO STEP” placard on each wing lift strut.

Joe Barr stated that the LAVIASA PA-25 series airplanes are the only low wing monoplane aircraft of all the affected airplane models listed in the proposed AD. The LAVIASA PA-25 series airplanes have a wing support strut that is located on top of, rather than below, the wing. The upper end of the wing lift strut attaches to the top of the fuselage and the bottom end of the strut attaches to the top of the wing at the midpoint region. There is no safe wing walk surface area on the top of the wing that extends more than a few inches from the wing root to walk or stand at this mid-wing station. No one could possibly step on or stand on the strut at or near this wing location without significant damage to the adjacent fabric covered wing structure itself. Therefore, it is illogical and irrelevant to have a “NO STEP” placard of any kind at the mentioned location on the wing lift struts of the LAVIASA PA-25 series airplanes. This requirement was clearly meant for high wing aircraft only.

We agree with the commenter. The intent of the placard is to prevent damage from stepping on the lower end of the strut. This would not occur on LAVIASA Models PA-25, PA-24-235, and PA-25-260 airplanes due to the configuration discussed above.

We have changed paragraph (m) in this AD to exclude LAVIASA Models PA-25, PA-24-235, and PA-25-260 airplanes from this requirement.

Mike Teets stated that he wants the option of using a different method for reworking a non-sealed wing lift strut to a sealed condition for Piper Aircraft Inc. Model J-3 airplanes.

Mike Teets stated that he has been inspecting the wing life struts on his Piper Aircraft, Inc. Model J-3 airplane for years and has developed a method for “reoperating” an unsealed wing life strut to a sealed condition, which would remove the need for the repetitive inspections and thereby reduce costs associated with the requirements of the proposed AD.

We do not agree with the commenter. The commenter's request pertains to only one model airplane affected by this AD and addresses only a portion of the requirements of the proposed AD. The commenter's proposal would be more appropriately addressed by requesting an alternative method of compliance following the procedures specified in paragraph (n) of this AD.

We have not changed this AD based on this comment.

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 any minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (79 FR 78729, December 31, 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 78729, December 31, 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 Piper Aircraft Corporation Mandatory Service Bulletin No. 528D, dated October 19, 1990, Piper Aircraft Corporation Mandatory Service Bulletin No. 910A, dated October 10, 1989; F. Atlee Dodge Aircraft Services, Inc. Installation Instructions No. 3233-I for Modified Piper Wing Lift Struts Supplemental Type Certificate (STC) SA4635NM, dated February 1, 1991; and Jensen Aircraft Installation Instructions for Modified Lift Strut Fittings, which incorporates pages 1 and 5, Original Issue, dated July 15, 1983; pages 2, 4, and 6, Revision No. 1, dated March 30, 1984; and pages a and 3, Revision No. 2, dated April 20, 1984. The service information describes procedures for wing lift strut assembly inspection and replacement. This information is reasonably available at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-1083, or you may see ADDRESSES for other ways to access this service information.

We estimate that this AD affects 22,200 airplanes of U.S. registry.

We estimate the following costs to comply with this AD. However, the only difference in the costs presented below and the costs associated with AD 99-01-05 R1 is addition of 200 airplanes to the applicability:

We estimate the following costs to do any necessary replacements that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:

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 have 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 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:

On October 28, 2014, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Alma Municipal Airport, Alma, NE (79 FR 64152) Docket No. FAA-2014-0745. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publications, an error was found under the airport designation listing the airport in KS, instead of NE. This action corrects the error.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Alma Municipal Airport, Alma, NE. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations for SIAPs at the airport. This action also correctly lists the airport state as NE instead of KS under the airport designation.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Alma Municipal Airport, Alma, NE.

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

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

On October 28, 2014, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at El Jardin Ranch Airport, Encinal, TX, (79 FR 64153). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraphs 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of El Jardin Ranch Airport, Encinal, TX, to accommodate new Standard Instrument Approach Procedures at airport. The FAA is taking this action to enhance the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at El Jardin Ranch Airport, Encinal, TX.

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

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

In a review of the airspace, the FAA found the airspace description for Martin State Airport, Baltimore, MD, Class D Airspace, in FAA Order 7400.9Y, Airspace Designations and Reporting Points, did not match the FAA's charting information. This administrative change coincides with the FAA's aeronautical database.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by referencing Restricted Area R-4001C in the regulatory text of the Class D airspace area at Martin State Airport, MD, adding the words “and Restricted Area R-4001C, which is continuously active up to 10,000 feet AGL”. This is an administrative change amending the description for Martin State Airport, Baltimore, MD, to be in concert with the FAAs aeronautical database, and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it further clarifies the description of controlled airspace at Martin State Airport, Baltimore, MD.

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

History

The Aeronautical Information Services branch identified an error in a longitudinal coordinate in the legal description extending upward from 1,200 feet above the surface, and the airport reference point (ARP) was not coincidental with the FAA's aeronautical database. This action makes these corrections.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the legal description of the Class E airspace area extending upward from 700 feet above the surface at Livingston, MT. The geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database, and a longitudinal point of the airspace boundary extending from 1,200 feet above the surface is corrected from “long. 112°29′00″W., to “long 110°29′00″W.”. This does not affect the boundaries or operating requirements of the airspace.

This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S. C. 553(b) is unnecessary.

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

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

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

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

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior written notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to the short time period between event planners notifying the Coast Guard of details concerning the event, on March 24, 2015, and publication of this safety zone. As such, it is impracticable for the Coast Guard to provide a full comment period due to lack of time. Furthermore, delaying the effective date of this safety zone would be contrary to the public interest as immediate action is needed to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area. The Coast Guard will provide advance notifications to users of the affected waterway via marine information broadcasts, local notice to mariners.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Due to the need for immediate action, the restriction on vessel traffic is necessary to protect life, property and the environment; therefore, a 30-day notice is impracticable. Delaying the effective date would be contrary to the safety zone's intended objectives of protecting persons and vessels, and enhancing public and maritime safety.

The legal basis and authorities for this rule are found in 33. U.S.C. 1231; 33 CFR 1.05-1, 6.04-1, 160.5; Department of Homeland Security Delegation No. 0170-1, which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones.

The purpose of this safety zone is to protect event participants, patrol vessels, spectator craft and other vessels transiting navigable waters on the Southern Branch of the Elizabeth River from hazards associated with a fireworks display. The potential hazards to mariners within the safety zone include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

On May 30, 2015, the City of Chesapeake Parks, Recreation and Tourism will be hosting the Elizabeth River Park Grand Re-opening which will include a fireworks display on the bank of the Southern Branch of the Elizabeth River in Chesapeake, VA. The fireworks debris fallout area will extend over the navigable waters of the Southern Branch of the Elizabeth River.

The Captain of the Port of Hampton Roads is establishing a safety zone on specified waters of the Southern Branch of the Elizabeth River in Chesapeake, VA. The fireworks will be launched from the shore located in the Elizabeth River Park. The safety zone will encompass all navigable waters within a 140 foot radius of the fireworks launching location at position 36°48′31.0818″ N, longitude 076°17′14.2506″ W. This safety zone will be established and enforced from 8:30 p.m. to 9 p.m. on May 30, 2015. Access to the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Captain of the Port of his Representative, no person or vessel may enter or remain in the regulated area.

The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice to the affected segments of the public. This includes publication in the Local Notice to Mariners and Marine Information Broadcasts.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this safety zone restricts vessel traffic through the regulated area, the effect of this rule will not be significant because: (i) This rule will only be enforced for the limited size and duration of the event; and (ii) the Coast Guard will make extensive notification to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in waters of the Southern Branch of the Elizabeth River during the enforcement period.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone is of limited size and duration, and (ii) Sector Hampton Roads will issue maritime advisories widely available to users of the Southern Branch of the Elizabeth River allowing mariners to adjust their plans accordingly.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

This rulemaking addresses a December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM) intended to meet the applicable infrastructure SIP requirements for the 2008 ozone NAAQS.

Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for ozone already meet those requirements.

EPA has highlighted this statutory requirement in multiple guidance documents, including the most recent guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)” issued on September 13, 2013.

EPA is acting upon Indiana's SIP submission that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (“SSM”)at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as “director's discretion”); and, (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking. A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (see 79 FR 27241 at 27242-27245).

In addition, EPA is not acting on section 110(a)(2)(D)(i)(I), interstate transport significant contribution and interference with maintenance, a portion of section 110(a)(2)(D)(i)(II) with respect to visibility, and 110(a)(2)(J) with respect to visibility. EPA is also not acting on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D, in its entirety. The rationale for not acting on elements of these requirements was included in EPA's August 19, 2013, proposed rulemaking or discussed below in today's response to comments.

The public comment period for EPA's proposed actions with respect to Indiana's satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on September 18, 2013. EPA received two comment letters, which were from the Sierra Club and the state of Connecticut. A synopsis of the comments contained in these letters and EPA's responses are provided below.

Comment 1: The Sierra Club states that, on its face, the CAA “requires I-SIPs to be adequate to prevent violations of the NAAQS.” In support, the commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenters claimed include the maintenance plan requirement. Sierra Club notes the CAA definition of “emission limit” and reads these provisions together to require “enforceable emission limitations on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complex structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program.

With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

Comment 2: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 asserting that they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Indiana. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 2: The CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs; they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP.

Comment 3: Sierra Club cites to 40 CFR 51.112(a), providing that each plan must “demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .” 51 FR 40656 (November 7, 1986).

Response 3: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS violations” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). In addition, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182.

The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, Ox and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 4: Sierra Club references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs, and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the state plan on the basis that the state failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, commenter cites a 2013 proposed disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the state. EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the state had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.” EPA further stated in that proposed disapproval that the state had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 4: EPA does not agree that the two prior actions referenced by the commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the now final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent.

EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP addressed a control strategy SIP and not an infrastructure SIP (71 FR 12623).

The Indiana action provides even less support for the commenter's position (78 FR 78720). The review in that rule was of a completely different requirement than the 110(a)(2)(A) SIP. Rather, in that case, the state had an approved SO2 attainment plan and was seeking to remove from the SIP, provisions relied on as part of the modeled attainment demonstration. EPA determined that the state had failed to demonstrate under section 110(l) of the CAA that the SIP revision would not result in increased SO2 emissions and thus not interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

Comment 5: Sierra Club discusses several cases applying to the CAA which it claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS and demonstrate maintenance throughout the area. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the state”). The commenter also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 5: None of the cases the commenter cites supports the commenter's contention that section 110(a)(2)(A) requires that infrastructure SIPs include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, 421 U.S. 60, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that were required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision.

In Train, a case that was decided almost 40 years ago, the court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus, the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here.

In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a Federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the court's holding in the case.

The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court's statement that “SIPs must include certain measures Congress specified” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Comment 6: Sierra Club contends that EPA cannot approve the section 110(a)(2)(A) portion of Indiana's 2008 ozone infrastructure SIP revision because an infrastructure SIP should include enforceable emission limits to prevent NAAQS violations in areas not designated nonattainment. Specifically, Sierra Club cited air monitoring reports for Clark, Floyd, and LaPorte Counties indicating violations of the NAAQS based on 2010-2012 and 2011-2013 design values and air quality monitoring reports for Greene County indicating violations based on data from 2010-2012. The commenter alleges that these violations demonstrate that the infrastructure SIP fails to ensure that air pollution levels meet or are below the level of the NAAQS and thus the infrastructure SIP must be disapproved. Sierra Club noted that the violation of the NAAQS based on data from 2010-2012 had been known for over four months, and that Indiana failed to strengthen its infrastructure SIP and address the violations by enacting enforceable limits.

Furthermore, the commenter suggests that the state adopt specific controls that they contend are cost-effective for reducing NOx, a precursor to ozone.

Response 6: We disagree with the commenter that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late in the process or after the SIP was due and submitted changes the status of areas within the state. We believe that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.

We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.1 In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state.

Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”

In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS.

In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A).

Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal.

Moreover, Indiana's SIP contains existing emission reduction measures that control emissions of VOCs and NOX found in 326 IAC 8 and 326 IAC 10, respectively. Indiana's SIP revision reflects several provisions that have the ability to reduce ground level ozone and its precursors. The Indiana SIP relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Indiana will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. Further, in approving Indiana's infrastructure SIP revision, EPA is affirming that Indiana has sufficient authority to take the types of actions required by the CAA in order to bring such areas back into attainment.

Comment 7: Sierra Club asserted that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow the board to grant variances to rules when the rules would impose “undue hardships or burden.” The commenter noted that EPA had cited IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that the variance provisions in IC 13-14-8-8 are too broad and vague to ensure that emission limits and controls are properly enforced, or to ensure that adequate legal authority is provided to carry out Indiana's SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements of section 110.

Response 7: EPA disagrees the commenter's claim that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-8-8 is not a regulation that has been approved into the SIP. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the act including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of state law means that the state does not have adequate authority to carry out the implementation plan.

Comment 8: Sierra Club asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility provisions under section 110(a)(2)(D)(i)(II). The commenter noted that EPA's basis for proposing approval for the visibility protection provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's claim that Indiana has an approved regional haze SIP. The commenter contended that Indiana's regional haze SIP was only partially approved and no action has been taken on issues addressing the Best Available Retrofit Technology requirements for EGUs. Therefore, the commenter believes that EPA must disapprove the visibility protection requirements found in section 110(a)(2)(D)(i)(II) for Indiana's infrastructure SIP.

Response 8: The commenter is correct that EPA issued a limited disapproval of Indiana's regional haze SIP. Our limited disapproval was based on Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy certain requirements for controlling emissions of SO2 and NOX from EGUs. EPA also issued a limited approval of the remaining portion of the regional haze plan. However, in response to this comment, EPA is not taking final action today on the portion of Indiana's infrastructure SIP addressing the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility.

Comment 9: Sierra Club asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility protection provisions, as described above, for section 110(a)(2)(J). The commenter contended that EPA did not provide a rationale for why the visibility provisions in section 110(a)(2)(J) are not applicable to the 2008 Pb and 2008 ozone NAAQS.

Response 9: The visibility requirements in part C of the CAA that are referenced in section 110(a)(2)(J) are not affected by the establishment or revision of a NAAQS. As a result, there are no “applicable” visibility protection obligations associated with the promulgation of a new or revised NAAQS. Because there are no applicable requirements, states are not required to address section 110(a)(2)(J) in their infrastructure SIP.

Comment 10: Sierra Club stated that EPA cannot approve Indiana's infrastructure SIP, specifically the infrastructure element under section 110(a)(2)(A), for the 2008 ozone NAAQS because the state has not incorporated this NAAQS into the SIP. Instead, the commenter noted that the SIP at the time of proposed rulemaking, specifically at 326 Indiana Administrative Code (IAC) 1-3-4(b)(4)(B), contained the older 8-hour ozone NAAQS promulgated in 1997.

Response 10: In a rulemaking published on December 18, 2014 (79 FR 75527), EPA approved revisions to Indiana's SIP incorporating the 2008 ozone NAAQS.

Comment 11: Sierra Club asserted that EPA must clarify two repealed regulations that were cited in the proposed rulemaking. Specifically, the commenter observed that EPA cited 326 IAC 11-5 as helping Indiana satisfy the requirements of section 110(a)(2)(G) “Emergency Powers” and IC 13-4-8 which was cited to satisfy section 110(a)(2)(H), “Future SIP Revisions.”

Response 11: EPA did not intend to engender any confusion with these citations. The commenter is correct in noting that 326 IAC 11-5 has been repealed. That rule was of little relevance to section 110(a)(2)(G) and was incorrectly cited; the correct citation that was provided by IDEM is SIP-approved IAC 1-5, “Alert Levels.” In a similar manner, IDEM provided IC 13-14-8 as helping to meet the requirements under section 110(a)(2)(H), but EPA incorrectly cited IC 13-4-8.

Comment 12: Sierra Club asserted that EPA must disapprove portions of Indiana's infrastructure SIP for the 2008 ozone NAAQS addressing certain PM2.5 requirements under section 110(a)(2)(C). In particular, the commenter objected to the fact that Indiana has not codified the increments for areas designated as class I or class III for PM2.5. The commenter noted that while Indiana does not have class I or class III areas, the increments for class I and class III areas are still a requirement to satisfy section 110(a)(2)(C). The commenter contends it is insufficient for EPA to “hope” that the state will adopt the increments if areas in the state are later redesignated to class I or class III, and therefore EPA must disapprove this section of Indiana's infrastructure SIP.

Response 12: EPA disagrees with the commenter's view that Indiana's infrastructure SIP related to section 110(a)(2)(C) must be disapproved because the state has not codified the PM2.5 increments for class I and class III areas as provided at 40 CFR 52.166(c) and 40 CFR 52.21(c). As explained in the August 19, 2013, proposed approval, Indiana does not currently have any areas designated class I or class III for PM2.5. Accordingly, EPA does not consider the PM2.5 increments for class I and class III areas to be necessary for the implementation of PSD permitting in Indiana at this time. In the event that areas in Indiana are one day classified as class I or class III, EPA expects IDEM to adopt these increments and submit them for incorporation into the SIP (see 78 FR 50360 at 50364). Federal regulations at 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state seeks to have an area reclassified to either class I or class III, it must submit such a request as a revision to its SIP for approval by the EPA Administrator. Thus, no areas in Indiana can be reclassified to class I or class III without EPA approval, and the process of evaluating such a request for approval requires a notice-and-comment rulemaking process. The EPA and other interested parties can evaluate the adequacy of Indiana's PSD regulations as they apply to the proposed reclassified area at that time and, if necessary, initiate a process to cure any identified deficiency. However, at this time, EPA does not believe there to be an applicability gap for the PM2.5 increments as they apply in the state of Indiana.

Comment 13: The State of Connecticut asserts that its ability to attain the 2008 ozone NAAQS is substantially compromised by the transport of pollution from upwind states. Specifically, modeling conducted by both the Ozone Transport Commission and EPA as part of the Cross-State Air Pollution Rule (CSAPR) shows emissions from Indiana contributing to the nonattainment problem in Connecticut. The State of Connecticut states that it has done its share to reduce in-state emissions, and EPA should ensure that each upwind state addresses contribution to another downwind state's nonattainment. With regard to the “good neighbor provision” in Section 1109(a)(1) of the CAA, Connecticut characterizes Indiana's 2008 ozone submission as relying on state regulations which implement the Clean Air Interstate Rule and CSAPR, and that such programs were intended by EPA to address the 1997 ozone NAAQS and not the more stringent 2008 standard. Connecticut asserts EPA should therefore disapprove the Indiana submission. Connecticut also states that, under section 110(a)(2), Indiana was required to submit a complete SIP that demonstrated compliance with the good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut further suggests that the CAA does not give EPA discretion to take no action on the submitted good neighbor provisions on the grounds of taking a separate action. Instead, it asserts that the only action available to EPA is to determine the approvability of the good neighbor provision of Indiana's 2008 ozone NAAQS infrastructure SIP submission, or promulgate a FIP under section 110(c)(1) within two years.

Response 13: As explained in the notice of proposed rulemaking (NPR), this action does not address, for the 2008 ozone NAAQS, the good neighbor provision in section 110(a)(2)(D)(i)(I), which prohibits emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. Thus, to the extent the comment relates to the substance or approvability of the good neighbor provision in Indiana's 2008 ozone infrastructure SIP submission, the comment is not relevant to the present rulemaking. As stated herein and in the NPR, EPA will take later, separate action to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

EPA disagrees with the commenter's argument that EPA cannot approve a SIP without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve the states' SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

The Agency interprets its authority under section 110(k)(3) as affording it the discretion to approve or conditionally approve individual elements of Indiana's infrastructure submission for the 2008 ozone NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements, and interprets section 110(k)(3) as allowing EPA to act on individual severable measures in a plan submission. In short, EPA has discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The commenter raises no compelling legal or environmental rationale for an alternate interpretation.

EPA notes, however, that it is working with state partners to assess next steps to address air pollution that crosses state boundaries and will later take a separate action to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the Indiana infrastructure SIP submission for the 2008 ozone NAAQS for the portions described in the NPR is, therefore, appropriate.

For the reasons discussed in our August 19, 2013, proposed rulemaking and in the above responses to public comments, EPA is taking final action to approve Indiana's infrastructure SIP for the 2008 ozone NAAQS as proposed with the exception of not taking final action on section 110(a)(2)(D)(i)(II) with respect to visibility. In EPA's August 19, 2013, proposed rulemaking for these infrastructure SIPs, EPA also proposed to approve Indiana's satisfaction of the state board requirements contained in section 128 of the CAA, as well as certain PSD requirements obligated by EPA's October 20, 2010, final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs), Significant Monitoring Concentration (SMC)” (2010 NSR Rule), and the infrastructure requirements for the 2008 lead NAAQS. The final approvals for each of the above requirements were published in the Federal Register on December 24, 2013 (see 78 FR 77599, state board requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule requirements), August 11, 2013 (see 78 FR 46709, 2010 NSR Rule requirements, continued), and October 16, 2014 (see 79 FR 62035, 2008 Lead Infrastructure requirements). In today's rulemaking, we are taking final action on only the infrastructure SIP requirements for the 2008 ozone NAAQS. Our final actions by element of section 110(a)(2) and NAAQS, are contained in the table below.

In the table above, the key is as follows:

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 June 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:

Definitions

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

(i) The words or initials “Act” or “CAA” mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words “EPA”, “we”, “us” or “our” mean or refer to the Environmental Protection Agency.

(iii) The initials “SIP” mean or refer to State Implementation Plan.

(iv) The words “Washington” and “State” mean the State of Washington.

On January 27, 2014, Ecology submitted revisions to update the general air quality regulations contained in Chapter 173-400 of the Washington Administrative Code (WAC) that apply to sources within Ecology's jurisdiction, including minor new source review, major source nonattainment new source review (major NNSR), PSD, and the visibility protection (visibility) program. On October 3, 2014, the EPA finalized approval of provisions contained in Chapter 173-400 WAC that apply generally to all sources under Ecology's jurisdiction, but stated that we would act separately on the major source-specific permitting programs in a phased approach (79 FR 59653). On November 7, 2014, the EPA finalized the second phase in the series, approving the major NNSR regulations contained in WAC 173-400-800 through 173-400-860, as well as other parts of Chapter 173-400 WAC that support major NNSR (79 FR 66291).

On January 7, 2015, the EPA proposed approval of the remainder of Ecology's January 27, 2014 submittal, covering the PSD and visibility requirements for major stationary sources under Ecology's jurisdiction (80 FR 838). An explanation of the Clean Air Act (CAA) requirements, submitted revisions, and the EPA's reasons for and limitations of the proposed approval are provided in the notice of proposed rulemaking, which, together with this document, provides the basis for our final action. The public comment period for this proposed rule ended on February 6, 2015. The EPA received two sets of similar comments on the proposal.

Before addressing the public comments, the EPA is clarifying its discussion in the January 7, 2015 proposal, regarding two important distinctions between the applicability of Ecology's minor NSR program and its PSD program. These differences arise from the State's definitions of the terms “modification” in WAC 173-400-030(48) and “major modification” in WAC 173-400-710 and -720, which adopt the Federal definitions in 40 CFR 52.21(b)(2) for Ecology's PSD program. See 80 FR at 840. The proposal first noted that the applicability test for “modifications” under Ecology's minor NSR program is based on the definition of modification in CAA section 111(a)(4) and the EPA's implementing rules at 40 CFR 60.14, and specifically, that a modification is an increase in the emission rate of an existing facility in terms of kilograms per hour. See WAC 173-400-030(48). The proposal then noted that the applicability test under the Federal PSD program is based on tons per year. The EPA is clarifying here that under Washington's PSD program, the determination of whether a project (as that term is defined in 40 CFR 52.21(b)(52) and which is adopted by reference at WAC 173-400-720(4)(a)(vi)) is a “major modification” is, consistent with the Federal PSD program, based on whether the project results in both a significant emissions increase and a significant net emissions increase in terms of tons per year. See WAC 400-173-720(4)(a)(vi) (which adopts by reference the Federal PSD applicability test and definitions in 40 CFR 52.21(a)(2) and (b)(2), respectively); see also WAC 173-400-710(a). Therefore, as stated in the proposal, for any physical or operational change at an existing stationary source, regulated sources and permitting authorities will need to calculate emission changes in terms of both kilograms per hour and tons per year to determine whether changes are subject to minor NSR, PSD, or both.

Second, the proposal discussed a difference in minor NSR versus PSD review in Washington that arises from a limitation on the scope of the review of a modification under Ecology's minor NSR program. The EPA first noted that, under Ecology's minor NSR program, new source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification. See WAC 173-400-110(1)(d) (“New source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification.”). In contrasting this minor NSR provision with the requirements of Ecology's PSD program (and the Federal PSD program), the EPA incorrectly used the phrase “new and modified units” rather than the terms “new emissions units” and “existing emissions units,” the terminology used in 40 CFR 52.21(a)(2), which is incorporated into Washington's PSD regulations and the subject of this final SIP approval. The EPA is emphasizing here that, under Ecology's PSD program (as under the Federal PSD program), review of a project that is a “major modification” must be done in accordance with the provisions of WAC 173-400-700 through 173-400-750, and that the limitation in WAC 173-400-110(1)(d) on the review of a “modification” does not apply to a “major modification.” See WAC 173-400-110(1)(d) (“Review of a major modification must comply with WAC 173-400-700 through 173-400-750 or 173-400-800 through 173-400-860, as applicable.”).

The EPA received two sets of similar comments from the Northwest Pulp & Paper Association and the Washington Forest Protection Association regarding carbon dioxide (CO2) emissions from industrial combustion of biomass.

Comment: The EPA must clearly explain in the final approval that, due to the limitations imposed by Revised Code of Washington (RCW) 70.235.020(3) concerning the industrial combustion of biomass,1 the EPA is retaining the authority to conduct the best available control technology (BACT) analysis for PSD permits only for biogenic CO2 emissions from biomass and will coordinate its processing and issuance of PSD permits with the Department of Ecology. One of the commenters specifically requests clarity regarding situations where there are multiple combustion fuels producing CO2 from a source and whether Ecology would retain PSD permitting authority for CO2 emissions resulting from the industrial combustion of non-biomass fuels from such a source.

Response: As discussed in the proposal of this rule, RCW 70.235.020(3) statutorily bars Ecology from regulating CO2 under Ecology's PSD program in some circumstances. That statute provides that “[e]xcept for purposes of reporting, emissions of carbon dioxide from industrial combustion of biomass in the form of fuel wood, wood waste, wood by-products, and wood residuals shall not be considered a greenhouse gas as long as the region's silvicultural sequestration capacity is maintained or increased.” The EPA has been actively examining whether under Federal law CO2 emissions from the industrial combustion of biomass may be exempt from the PSD permitting requirements in a manner similar to RCW 70.235.020(3). In 2011, the EPA adopted a rule that deferred, for a period of three years, the application of the PSD and Title V permitting requirements to CO2 emissions from bioenergy and other biogenic stationary sources (biogenic CO2). 76 FR 43490 (July 20, 2011) (Biomass Deferral Rule). During the three-year deferral period, the EPA conducted a detailed examination of the science associated with biogenic CO2 emissions from stationary sources and developed a document entitled “Accounting Framework for Biogenic CO2 Emissions from Stationary Sources,” which the Agency submitted to the EPA Science Advisory Board (SAB) for peer review.

On July 12, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision overturning the Biomass Deferral Rule. Center for Biological Diversity v. EPA, 722 F.3d 421 (D.C. Cir. 2013). Although this decision has not yet taken effect because of matters still pending in the courts, the Biomass Deferral Rule expired on its own terms on July 21, 2014. The EPA was not able to issue an additional rule before this date addressing the regulation of biogenic CO2 emissions from stationary sources in the PSD permitting program. However, the EPA plans to propose revisions to the PSD rules to include an exemption from the BACT requirement for GHGs from waste-derived feedstocks and from non-waste biogenic feedstocks derived from sustainable forest or agricultural practices. For all other biogenic feedstocks, the EPA intends to propose that biogenic CO2 emissions would remain subject to the GHG BACT requirement at this time. See Memorandum from Janet McCabe, Acting Assistant Administrator, Office of Air and Radiation, to EPA Air Division Directors, Regions 1-10, “Addressing Biogenic Carbon Dioxide Emissions from Stationary Sources,” (Nov. 19, 2014). In addition, to continue advancing our understanding of the role biomass can play in reducing overall GHG emissions, the EPA has developed a second draft of the Framework for Assessing Biogenic CO2 Emissions from Stationary Sources, and is initiating a second round of targeted peer review through its SAB.

Although the EPA is planning to initiate the rulemaking described above that would enable states to avoid applying BACT to GHG emissions from combustion of biogenic feedstocks derived from sustainable forest or agricultural practices, the CAA and EPA regulations presently require that PSD permitting programs address CO2 emissions from the industrial combustion of biomass. CO2 is a gas included in the definition of “greenhouse gas” used in the Federal PSD program.2 Because GHGs are a pollutant subject to regulation under the CAA, section 165 of the Act requires GHG emissions from a major source obtaining a PSD permit to be subject to PSD requirements, particularly the requirement to meet emission limitations based on application of BACT. After the expiration of the three-year period in the EPA's Biomass Deferral Rule, there is presently no EPA rule in place that exempts the CO2 emissions from the industrial combustion of biomass from the requirements of the PSD permitting program. As discussed in our January 7, 2015 proposal (80 FR 838), because of the Supreme Court decision in Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427, the EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a physical change or change in the method of operation of a major stationary source.3 However, the BACT requirement remains applicable to GHGs from a source that is subject to PSD because it is major for another regulated NSR pollutant (what is known as an “anyway source”) and which would emit a significant amount of GHGs (i.e., more than 75,000 tons per year CO2 equivalent emissions, CO2e, as defined in 40 CFR 52.21(b)(49)). Absent an EPA rule establishing an exemption for CO2 emissions from biomass combustion, the determination of BACT for a regulated NSR pollutant must consider all of the emissions of each pollutant subject to regulation under the Act. Because RCW 70.235.020(3) prohibits Ecology from establishing BACT limits for such sources that include CO2 emissions resulting from the industrial combustion of biomass, Washington law is inconsistent with the EPA's current regulations implementing the PSD provisions in the CAA in that regard.

As a result, the EPA must retain a FIP under 40 CFR 52.21 and issue partial PSD permits to ensure that major sources in Washington have a means to satisfy the CAA construction permit requirements for GHGs when CO2 emissions from the industrial combustion of biomass in Washington cannot be considered or regulated by Ecology under its PSD rules.4 Because Ecology does have authority to carry out all PSD requirements for GHGs except for sources permitted to engage in the industrial combustion of biomass, the EPA is approving Ecology's regulations as part of the Washington PSD SIP for such purposes.

For sources subject to the FIP, the EPA is retaining the authority to conduct the BACT analysis for all GHGs when necessary, not just the biogenic CO2 emissions not covered by the Washington permitting program under RCW 70.235.020(3). Because the regulated NSR pollutant is GHGs and not CO2, the Federal PSD permit issued by the EPA under the FIP will contain a BACT limit covering all GHG emissions from a subject emission unit when that unit is permitted to emit biogenic CO2 not covered by the Washington permitting program. The EPA believes it should retain authority over all GHG emissions at such sources to avoid difficulties that could arise if Ecology and the EPA each separately evaluated BACT for only a portion of the GHG emissions from an emission unit. For example, each agency could end up calculating cost values that would not reflect the true cost of the control options for GHG emissions because not all GHGs, as defined under the Federal PSD program, would be considered by either agency.

Thus, the EPA FIP addresses the impact of the Washington statutory provision in two ways. First, the Ecology and the EPA definitions of GHGs are effectively different, with the EPA's definition being more inclusive (i.e., it does not exclude CO2 emissions from the industrial combustion of biomass) so an “anyway source” could be subject to PSD for GHGs under the FIP when it would not be subject to PSD under the SIP. In this situation, the EPA will issue a Federal PSD permit under 40 CFR 52.21 for the new major stationary source or major modification that would require BACT for GHGs for all subject emission units at the source, regardless of whether CO2 emissions were from the industrial combustion of biomass or from other sources of GHG emissions at the facility. Second, if an “anyway source” is subject to PSD for GHG emissions under both the SIP and the FIP, but there are CO2 emissions from the industrial combustion of biomass that cannot be addressed in the Ecology PSD permit, the EPA will issue a Federal PSD permit under 40 CFR 52.21 requiring BACT for GHGs for each subject emissions unit with CO2 emissions from the industrial combustion of biomass. Note that the Ecology PSD permit issued under the SIP will address all other subject emission units that do not have CO2 emissions from the industrial combustion of biomass. We have revised the language of 40 CFR 52.2497 to reflect this clarification.

Given this dual CAA PSD permitting authority in situations where there are multiple combustion fuels producing CO2 from a source engaged in the industrial combustion of biomass in Washington, the EPA will coordinate closely with Ecology during the PSD permit issuance process.

Comment: The EPA should also clarify that it will follow the EPA's existing guidance on BACT for biogenic emissions, “Guidance for Determining Best Available Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy Production” (March 2011 guidance).

Response: The March 2011 guidance is the EPA's most recent guidance on the topic of BACT determinations for bioenergy production and the EPA will consider it, as appropriate, in issuing PSD permits under the FIP. The EPA will also consider prior BACT determinations for GHGs at biomass facilities, such as the one reflected in the permit EPA Region 9 issued to Sierra Pacific Industries. In the November 19, 2014 Memorandum cited above, the EPA has also stated that the Agency anticipates providing additional guidance to sources undergoing BACT analyses involving biogenic feedstocks. To the extent that guidance is available at the time the EPA issues permits under the FIP discussed in this rule, the EPA will consider that guidance as well.

Comment: One commenter referenced the EPA's memorandum, “Addressing Biogenic Carbon Dioxide Emissions from Stationary Sources,” from Janet McCabe, Acting Assistant Administrator, Office of Air and Radiation, to EPA Air Division Directors, Regions 1—10, November 19, 2014, regarding biogenic CO2 emissions and urged the EPA to complete rulemaking regarding this issue in an expeditious manner.

Response: The EPA will endeavor to complete this rulemaking in a timely manner. After considering public comments on the proposal for that rule, if the final rule contains an exemption that aligns with the scope of RCW 70.235.020(3), the EPA will reevaluate the extent to which the FIP established in this rule should remain applicable to Washington facilities with CO2 emissions from the industrial combustion of biomass. To enable the EPA to remove such sources from the FIP, Washington may need to consider whether an amendment to RCW 70.235.020(3) is appropriate to match the scope of any final rule adopted by the EPA.

For the reasons set forth in our proposed rulemaking at 80 FR 838, January 7, 2015, as further discussed above, the EPA is approving and incorporating by reference the PSD and visibility permitting regulations submitted by Ecology on January 27, 2014. This action is the third and final in a series approving the remaining elements contained in Ecology's January 27, 2014 submittal. The previous two actions consisted of the EPA's October 3, 2014 (79 FR 59653) approval of general provisions that apply to all air pollution sources and the EPA's November 7, 2014 (79 FR 66291) approval of requirements that implement major source NNSR.

The EPA is approving and incorporating by reference into Washington's SIP at 40 CFR part 52, subpart WW, the PSD and visibility permitting regulations listed in the table below. A full copy of the regulations is included in the docket for this action. The EPA has also determined that the general air quality regulations at WAC 173-400-036, WAC 173-400-110, WAC 173-400-111, WAC 173-400-112, WAC 173-400-113, WAC 173-400-171, and WAC 173-400-560, to the extent they relate to implementation of Ecology's PSD and visibility programs, also meet the EPA's requirements for subject sources.5

As discussed in the proposal, Ecology requested approval to exercise its authority to fully administer the PSD program with respect to those sources under Ecology's permitting jurisdiction that have existing PSD permits issued by the EPA since August 7, 1977. 80 FR 843, January 7, 2015. Upon the effective date of this approval of Ecology's PSD program into the SIP, we transfer the EPA-issued PSD permits issued on and after August 7, 1977 to Ecology. The EPA retains authority to administer PSD permits issued by the EPA in Washington prior to August 7, 1977. Id.

Under WAC 173-400-700, Ecology's PSD regulations contained in WAC 173-400-700 through 173-400-750 apply statewide, except where a local clean air agency has received delegation of the Federal PSD program from the EPA or has a SIP-approved PSD program. At this time, no local clean air agencies in Washington have a delegated or SIP-approved PSD program. For the reasons provided in the preambles to the proposed and final notices of rulemaking, the EPA is therefore approving WAC 173-400-700 through 173-400-750 to apply statewide, with the three exceptions described below. For the following exceptions, the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21 will continue to apply, and the EPA will retain responsibility for issuing PSD permits to and implementing the Federal PSD program for such sources:

By statute, Ecology does not have authority to issue PSD permits to sources under the jurisdiction of EFSEC. See Chapter 80.50 of the Revised Code of Washington (RCW). Therefore, the EPA's approval of Ecology's PSD program, under WAC 173-400-700 through 173-400-750, excludes projects under the jurisdiction of EFSEC. Such sources will continue to be subject to the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21, until such time that EFSEC's PSD rules are approved into the SIP.

As discussed above, under a provision contained in RCW 70.235.020, Greenhouse Gas Emissions Reductions—Reporting Requirements, Ecology is statutorily barred from regulating certain GHG emissions. As a result, the EPA is retaining a FIP under 40 CFR 52.21 and will issue partial PSD permits to ensure that major sources in Washington have a means to satisfy the CAA construction permit requirements for GHGs when CO2 emissions from the industrial combustion of biomass in Washington are not being considered or regulated by Ecology under its PSD rules. Because Ecology does have authority to carry out all PSD requirements for GHGs except for sources permitted to engage in the industrial combustion of biomass, the EPA is approving Ecology's regulations as part of the Washington PSD SIP for such purposes.

Excluded from the scope of this final approval of Ecology's PSD program are all Indian reservations in the State, except as specifically noted below, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Sources on such lands will continue to be subject to the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21.

Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) and the EPA is therefore proposing to approve Ecology's PSD regulations into the SIP with respect to such lands.

Consistent with the limitations on the scope of the EPA's final approval of WAC 173-400-700 through 173-400-750 in the Washington SIP, the EPA retains, but significantly narrows, the scope of the current PSD FIP codified at 40 CFR 52.2497. The EPA will continue to implement the current PSD FIP as provided in III.C.1.a., b., and c. of this document.

With respect to the EPA's approval of WAC 173-400-116 and WAC 173-400-117, the SIP-approved provisions of WAC 173-400-020 govern jurisdictional applicability for those sections. WAC 173-400-020 states, “[t]he provisions of this chapter shall apply statewide, except for specific subsections where a local authority has adopted and implemented corresponding local rules that apply only to sources subject to local jurisdiction as provided under RCW 70.94.141 and 70.94.331.” Because Ecology will be the only authority in Washington with a SIP-approved PSD program that would implement WAC 173-400-116, Increment Protection, the EPA's approval of WAC 173-400-116 applies statewide, with the two exceptions discussed below. Similarly, the scope of our approval of WAC 173-400-117, Special Protection Requirements for Federal Class I Areas, applies statewide for PSD permits issued by Ecology under WAC 173-400-700 through 173-400-750, noting the two exceptions discussed below. However, for visibility-related elements associated with permits issued under the major NNSR program, the applicability of WAC 173-400-117 is more complicated because local clean air agencies have the authority under state law to have alternative, but no less stringent, permitting requirements. Therefore, consistent with the EPA's November 7, 2014 approval of Ecology's major NNSR program, our approval of WAC 173-400-117, as it relates to NNSR permits issues under WAC 173-400-800 through 173-400-860, is limited to only those counties or sources where Ecology has direct jurisdiction. The counties where Ecology has direct jurisdiction are: Adams, Asotin, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, San Juan, Stevens, Walla Walla, and Whitman Counties, with the two exceptions discussed below. The EPA also notes that under the SIP-approved provisions of WAC 173-405-012, WAC 173-410-012, and WAC 173-415-012, Ecology has statewide, direct jurisdiction for kraft pulp mills, sulfite pulping mills, and primary aluminum plants, excluding certain areas of Indian country as discussed further. The EPA is therefore approving WAC 173-400-117 in all areas of the state under Ecology's jurisdiction for those specified source categories.

For the following exceptions the visibility FIP codified at 40 CFR 52.2498 will continue to apply and the EPA will retain responsibility for issuing visibility permits for such sources:

By State statute, Ecology does not have authority to issue permits to sources under the jurisdiction of EFSEC. See Chapter 80.50 of the Revised Code of Washington (RCW). Therefore, the EPA's approval of WAC 173-400-116 and 173-400-117 excludes projects under the jurisdiction of EFSEC. Such sources will continue to be subject to the visibility FIP codified at 40 CFR 52.2498, until such time that EFSEC's corollaries to WAC 173-400-116 and 173-400-117 are approved into the SIP.

Excluded from the scope of this final approval of the visibility permitting program are all Indian reservations in the State, except as specifically noted below, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Sources on such lands will continue to be subject to the visibility FIP codified at 40 CFR 52.2498.

Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) and the EPA is therefore proposing to approve Ecology's visibility regulations into the SIP with respect to such lands for those facilities where Ecology has direct jurisdiction.

Consistent with the limitations on the scope of our approval of Ecology's major NNSR program (79 FR at 43349), the EPA retains, but significantly narrows, the scope of the current visibility FIP codified at 40 CFR 52.2498.

As discussed in the proposal, 80 FR at 845, in approving state new source review rules into SIPs, the EPA has a responsibility to ensure that all states properly implement their SIP-approved preconstruction permitting programs. The EPA's approval of Ecology's PSD rules does not divest the EPA of the responsibility to continue appropriate oversight to ensure that permits issued by Ecology are consistent with the requirements of the CAA, Federal regulations, and the SIP. The EPA's authority to oversee permit program implementation is set forth in sections 113, 167, and 505(b) of the CAA. For example, section 167 provides that the EPA shall issue administrative orders, initiate civil actions, or take whatever other action may be necessary to prevent the construction or modification of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) of the CAA provides for administrative orders and civil actions whenever the EPA finds that a state “is not acting in compliance with” any requirement or prohibition of the CAA regarding the construction of new sources or modification of existing sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever the EPA finds that a person is in violation of an applicable implementation plan.

In making judgments as to what constitutes compliance with the CAA and regulations issued thereunder, the EPA looks to (among other sources) its prior interpretations regarding those statutory and regulatory requirements and policies for implementing them. It follows that state actions implementing the Federal CAA that do not conform to the CAA may lead to potential oversight action by the EPA.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Washington State Department of Ecology regulations listed in section II.A. Rules Approved and Incorporated by Reference into the SIP of this preamble. The EPA has made, and will continue to make, these documents generally available electronically 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 that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the 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 this action does not involve technical standards; and

• does not provide the 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 in Washington except as specifically noted below and is also not approved to apply 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). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated February 25, 2014. The EPA did not receive a request for consultation.

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 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 June 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).)

For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0418 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 29, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0418, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of September 5, 2014 (79 FR 53009) (FRL-9914-98), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP IN-10704) by Loveland Products, Inc., 3005 Rocky Mountain Avenue, Loveland, CO 80538. The petition requested that the exemption from the requirement of a tolerance in 40 CFR 180.920 for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl be amended to allow for use on all growing agricultural crops when used as an inert ingredient (UV stabilizer) at a maximum concentration of 10% weight/weight in pesticide formulations. That document referenced a summary of the petition prepared by the petitioner Loveland Products, Inc., which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

In the Federal Register of August 18, 2010 (75 FR 50884) (FRL-8836-3), EPA published a final rule establishing an exemption from the requirement of tolerances for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- when used as an inert ingredient (UV stabilizer) at a maximum concentration of 0.6% in insecticide formulations applied to adzuki beans, canola, chickpeas, cotton, fava beans, field peas, lentils, linola, linseed, lucerne, lupins, mung beans, navy beans, pigeon peas, safflower, sunflower, and vetch. Specific information on the studies received and the nature of the adverse effects caused by phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- as well as the NOAEL and the LOAEL from the toxicity studies are discussed in that rulemaking which can be found in the docket under docket ID numbers EPA-HQ-OPP-2008-0602.

Since that rulemaking, as part of the data submitted in support of the current petition, an additional study has been submitted. In this study, a one-generation oral reproduction study (OECD Test Guideline 443) with the rat, the NOAEL for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- for parental and reproductive toxicity was 10,000 parts per million (ppm) (equal to 618 milligram/kilogram/day (mg/kg/day), the highest dose tested (HDT)). The NOAEL for offspring toxicity was 5,000 ppm (equal to 311 mg/kg/day) based on decreased body weight, body weight gain, increased absolute spleen weights in males and increased incidence of splenic extra medullary hematopoiesis in males at the LOAEL of 10,000 ppm (equal to 618 mg/kg/day). Specific information on the study received and the nature of the adverse effects caused by phenol-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, as well as the NOAEL and LOAEL can found at http://www.regulations.gov in the document “Phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Amendment to the Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient in Preharvest Pesticide Products” at pp. 16-19 in docket ID number EPA-HQ-OPP-2014-0418. Based on the results of this study, the NOAEL for parental and reproductive toxicity was 10,000 ppm (equal to 618 mg/kg/day, the HDT). The NOAEL for offspring toxicity was 5,000 ppm (equal to 311 mg/kg/day) based on the decreased body weight, body weight gain, increased absolute spleen weights in males and increased incidence of splenic extra medullary hematopoiesis in males at 10,000 ppm (equal to 618 mg/kg/day).

Once a pesticide chemical's toxicological profile is determined. EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

No acute effects were observed from a single dose so no acute POD was selected. The POD for risk assessment for all remaining durations and routes of exposure was from the 90-day toxicity study in rats. The NOAEL was 20 mg/kg/day and the LOAEL was 40 mg/kg/day based on increases in liver, kidney, spleen, and testes weights. Although the chronic point of departure was selected from a subchronic study, no additional uncertainty factor is necessary for use of subchronic study for chronic exposure assessment since available longer-term studies shows the lack of toxicity even at higher doses. A 100-fold uncertainty factor was used for the chronic exposure (10X interspecies extrapolation, 10X for intraspecies variability and 1X Food Quality Protection Act (FQPA) factor. The NOAEL of 20 mg/kg/day was used for all exposure duration via dermal and inhalation routes of exposure. The residential, occupational and aggregate level of concern (LOC) is for MOEs that are less than 100 and is based on 10X interspecies extrapolation, 10X for intraspecies variability and 1X FQPA factor. Dermal absorption is estimated to be 10% based on SAR analysis. A 100% inhalation absorption is assumed.

In the Federal Register of August 18, 2010 (75 FR 50884) (FRL-8836-3), EPA applied 10X FQPA factor for the lack of a reproduction study; however, the recently submitted Extended One-Generation Reproduction Toxicity Study of Tinuvin 571 in Wistar Rats provides a reliable basis for reducing the FQPA factor used in the previous risk assessment to 1X.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- in food as follows: Because no acute endpoint was identified, no acute dietary exposure assessment was conducted.

In conducting the chronic dietary exposure assessment using the Dietary Exposure Evaluation Model/Food Commodity Intake Database (DEEM-FCID)TM, Version 3.16, EPA used food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, no residue data were submitted for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-. In the absence of specific residue data, EPA has developed an approach that uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high-use insecticides, herbicides, and fungicides. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

In the case of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, EPA made a specific adjustment to the dietary exposure assessment to account for the use limitations of the amount of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- that may be in formulations (no more than 10% by weight in pesticide products applied to growing crops) and assumed that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- is present at the maximum limitation in all pesticide product formulations used on growing crops.

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Residential uses of pesticides containing phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- are extremely limited. However, in order to account for all of the current and unanticipated potential residential uses of pesticide products containing phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- various exposure models were employed. The Agency believes that the scenarios assessed represent highly conservative worst-case short-term and intermediate-term exposures and risks to residential handlers and those experiencing post-application exposure resulting from the use of indoor and outdoor pesticide products containing this inert ingredient in residential environments. Based on the use pattern, chronic exposure is not anticipated. Therefore, the risk from the chronic residential exposure was not assessed.

Further details of this residential exposure and risk analysis can be found at http://www.regulations.gov in the memorandum entitled “JITF Inert Ingredients. Residential and Occupational Exposure Assessment Algorithms and Assumptions Appendix for the Human Health Risk Assessments to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations” (D364751, Lloyd/LaMay, 5/7/09) in docket ID number EPA-HQ-OPP-2008-0710.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, to share a common mechanism of toxicity with any other substances, and phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. Developmental studies have been conducted on two structurally similar chemicals. In one study, no maternal toxicity was evident and the rates of implantation and embryo toxicity were not affected by treatment in rats. No teratogenic effects were observed; however, the study does not specify what developmental endpoints were examined. The NOAEL for maternal and developmental toxicity was 1,000 mg/kg/day (HDT). In a separate study, there was no evidence of increased susceptibility in this developmental toxicity study in rats and mice at 1,000 mg/kg/day. In a second study in rats, no maternal toxicity was observed at any dose tested. The maternal toxicity NOAEL was 3,000 mg/kg/day. The developmental NOAEL was 1,000 mg/kg/day based on omphalocele seen in the one fetus in the high dose group (LOAEL 3,000 mg/kg/day). The data suggest evidence of increased susceptibility in this developmental toxicity study in rats. However, there is a low concern for this susceptibility because the adverse effect (omphalocele) was seen at a very high dose of 3,000 mg/kg/day and only in one fetus. In addition, the study did not provide historical controls that would assist in making a determination as to whether this effect is treatment related.

No adverse reproductive effects were observed in a one-generation reproductive toxicity study in rats at dose levels up to 10,000 ppm; equal to 618 mg/kg/day, the HDT. There is a quantitative evidence of increased susceptibility in the one-generation reproduction study in rats. In this study, the NOAEL for offspring toxicity was 5,000 ppm (equal to 311 mg/kg/day) based on decreased body weight, body weight gain, increased absolute spleen weights in males and increased incidence of splenic extra medullary hematopoiesis in males at the LOAEL of 10,000 ppm (equal to 618 mg/kg/day), while no systemic toxicity was observed in parental animals at doses up to 10,000 ppm (equal to 618 mg/kg/day). However, the concern for this susceptibility is low since there is a well characterized NOAEL for protecting the offspring and the NOAEL selected for chronic RfD is more than 12 fold lower. Therefore, there is no need for additional uncertainty factor.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is complete. Previously (2010), EPA identified study measuring reproductive parameters and lack of Immunotoxicity study as the data gaps. Since the last assessment, EPA received the one generation reproduction study. EPA concluded that the Immunotoxicity study is not required because the newly submitted study and previously reviewed studies do not show any indication of Immunotoxicity except one 90-day toxicity study in rats showing slight increases in spleen weights without histopathological findings and without changes in the blood parameters was observed at the HDT (80 mg/kg/day). Since this is an isolated finding, EPA concluded that the Immunotoxicity study is not required.

ii. There is no indication that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity. No clinical signs of neurotoxicity were seen in any of the repeat dose studies with phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-.

iii. No evidence of Immunotoxicity was seen in the available database except in one 90-day toxicity study in rats showing slight increases in spleen weights without histopathological findings and without changes in the blood parameters was observed at the HDT (80 mg/kg/day). Since this is isolated findings, EPA concluded that the Immunotoxicity study is not required.

iv. There is qualitative evidence of post natal susceptibility in 1-generation reproduction study in rats, however, EPA concluded that there is no need for additional uncertainty factor since there is well characterized NOAEL protecting the offspring and the NOAEL selected for chronic RfD is more than 12 fold lower.

v. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed using highly conservative model assumptions including 100 percent crop treated (PCT) and residue levels in crops equivalent to the highest established active ingredient tolerance. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-.

Determination of safety section. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- from food and water will utilize 70.6% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure: Based on the explanation in this unit, regarding residential use patterns, chronic residential exposure to residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl -, is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is currently used as an inert ingredient in pesticide products that are registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-,.

Using the exposure assumptions described in this unit for short-term exposures and the use limitation described previously in Unit C. EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 170 for adult males and females. Adult residential exposure combines high-end dermal and inhalation handler exposure from liquids/trigger sprayer in home gardens with a high-end post-application dermal exposure from contact with treated lawns. EPA has concluded the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 140 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to mouth exposures). The EPA's level of concern for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- is for MOEs that are lower than 100; therefore, these MOEs are not of concern.

4. Intermediate-term risk. Phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is currently used as an inert ingredient in pesticide products that are registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-.

Intermediate-term aggregate risk assessment was not conducted because short-term aggregate risk assessment is protective of intermediate-term aggregate risk since the same endpoint of concern has been identified for both exposure durations.

5. Aggregate cancer risk for U.S. population. Phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- is not expected to pose a cancer risk to humans since there was no evidence of carcinogenicity in the available studies.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- in or on any food commodities. EPA is establishing a limitation on the amount of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide for sale or distribution that contains greater than 10% of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, by weight in the pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- (CAS Reg. No. 23328-53-2) when used as an inert ingredient (UV stabilizer) at a maximum concentration of 10% in pesticide formulations applied to growing crops.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2015 Greenland turbot ITAC in the Aleutian Islands subarea of the BSAI is 170 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015). The Regional Administrator has determined that the 2015 ITAC for Greenland turbot in the Aleutian Islands subarea of the BSAI is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2015 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for Greenland turbot in the Aleutian Islands subarea of the BSAI as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 23, 2015.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.