Federal Register Vol. 81, No.199,

On June 1, 2016, DOE published a final rule (the “June 2016 final rule”) to establish test procedures for portable air conditioners. 81 FR 35241. DOE has since found that the June 2016 final rule contained minor typographical errors in Title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix CC. This final rule correction revises appendix CC to subpart B of 10 CFR part 430, to correct these typographical errors. Specifically, in section 4.1.1, DOE is correcting the following errors: An incorrect subscript for the variable Tduct_SD_j in the Qduct_SD equation and missing subscripts “j” on the Tduct variables in the equations for Qduct_95 and Qduct_83. In section 4.1.2, DOE is correcting the following errors: A missing equals sign and parenthesis; incorrect subscripts for the variable Cp_da and the infiltration air variables in the Qs_95 equation; incorrect subscripts in the infiltration air variables in the Qs_83 equation; missing equals signs in the Ql_95 and Ql_83 equations; and missing “Q” variables and incorrect subscripts for the Ql_95 and Ql_83 variables in the Qinfiltration_95 and Qinfiltration_83 equations.

DOE also found that the summation symbols in the two dual-duct Qduct equations in section 4.1.1 were not properly represented in the Electronic Code of Federal Regulations (eCFR).

Neither the errors nor the corrections in this document affect the substance of the rulemaking or any of the conclusions reached in support of the final rule. Accordingly, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue a separate notice to solicit public comment on the corrections contained in this final rule as doing so would be impractical, unnecessary, and contrary to the public interest. For the same reasons and pursuant to 5 U.S.C. 553(d), DOE finds good cause to waive the 30-day delay in effective date.

DOE has concluded that the determinations made pursuant to the various procedural requirements to the June 2016 final rule that originally codified DOE's test procedures for portable air conditioners remain unchanged for this final rule technical correction. 81 FR 35241. The amendments from that final rule became effective July 1, 2016. Id.

For the reasons set forth in the preamble, DOE amends part 430 of title 10, Code of Federal Regulations by making the following correcting amendments:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GEnx-1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P2, -1B70/75/P2, and -1B74/75/P2 turbofan engines with engine assembly, P/N 2447M10G01 or P/N 2447M10G02, installed. The NPRM published in the Federal Register on May 10, 2016 (81 FR 28777). The NPRM was prompted by a report of a significant fan rub event. The NPRM proposed to require rework of the engine fan stator module assembly. We are issuing this AD to prevent failure of the fan blades and the load reduction device, loss of power to one or more engines, loss of thrust control, and loss of the airplane.

Japan Airlines and United Airlines requested that the airplane flight manual (AFM) limitations mandated by AD 2016-08-12, Amendment 39-18488 (81 FR 23581, April 22, 2016) (“AD 2016-08-12”), be removed from an aircraft that has complied with the fan case grind procedure mandated in this AD. They reason that once the fan case grind is completed on both engines installed on an airplane, there is no longer an unsafe condition.

We agree. Once the fan case grind has been completed on both engines installed on an airplane, the unsafe condition no longer exists. With agreement from the Transport Airplane Directorate (TAD), we added a terminating action paragraph to this AD.

Japan Airlines requested that alternate service documents be approved as compliance to AD 2016-06-08, Amendment 39-18439 (81 FR 14704, March 18, 2016) (“AD 2016-06-08”). They reason that the service documents provide the same procedure and the same post-rework configuration.

We disagree. AD 2016-06-08 is a separate AD issued by the TAD, which includes aircraft-level corrective actions. The commenter must contact the TAD to request a change to AD 2016-06-08. We did not change this AD.

GE requested that the applicability explicitly state that engine assembly, P/N 2447M10G03, is not applicable to this AD. They reason that engine assembly, P/N 2447M10G03, is a new production part that does not contain the unsafe condition.

We disagree. Since engine assembly, P/N 2447M10G03, is not listed in the applicability of this AD, it is not applicable to this AD. We did not change this AD.

GE requested that another procedure included within a new service bulletin, GE GEnx-1B Service Bulletin (SB) 72-0317 R00, dated June 29, 2016, be added as a means of compliance to this AD. They reason that this new procedure achieves the same configuration as the proposed procedure.

We agree. The new procedure in GE GEnx-1B SB 72-0317 R00, dated June 29, 2016, also corrects the unsafe condition addressed in this AD. We added GE GEnx-1B SB 72-0317 R00, dated June 29, 2016, as a means of compliance in this AD.

GE requested that we move the action specified in paragraph (f) Credit for Previous Action, to compliance paragraph (e) of this AD. They reason that this action is an equivalent method of performing the fan case rework.

We agree. The action is equivalent to the current compliance, but located within a different service document. We revised paragraph (f) and paragraph (e) of this AD accordingly.

United Airlines requested that we list AD 2016-06-08 and AD 2016-08-12 in this AD. They reason that AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition as this AD and also mandate a fan case rework.

We agree. AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition as this AD. We list AD 2016-06-08 and AD 2016-08-12 in paragraph (h) of this AD.

United Airlines requested that we supersede AD 2016-08-12 with this AD. They reason that AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition of the engine and mandate a fan case rework procedure.

We disagree. An AD that mandates engine-level corrective actions, “this AD”, cannot supersede an AD, “AD 2016-08-12” that mandates aircraft-level corrective actions. AD 2016-08-12 mandates aircraft limitations in addition to the engine rework procedure that can only be mandated at the aircraft level, not the engine level. We did not change this AD.

United Airlines requested that we revise the operating procedures that require the ice removal procedure to be done every 5 minutes, rather than the preferred every 5 minutes or less, allowing the pilot to do the procedure prior to 5 minutes after Engine Indication and Crew Alerting System (EICAS) notification. United Airlines suggests the 5 minute requirement does not allow pilots to effectively manage the cockpit within reasonable parameters or room to operate.

We disagree. The AFM operating procedures are mandated by aircraft-level AD 2016-06-08 and AD 2016-08-12, which were issued by the TAD. The commenter must contact the TAD to request a change to AD 2016-06-08 or AD 2016-08-12. We did not change this AD.

United Airlines requested that we allow installation of engine assembly, P/N 2477M10G03, by using GE GEnx-1B SB 72-0317 to modify the engine instead of using the fan grind rework procedure as compliance to AD 2016-08-12. They reason that the procedure in GE GEnx-1B SB 72-0317 achieves the same engine outcome as the currently mandated compliance.

We disagree. AD 2016-08-12 was issued by the TAD. The commenter must contact the TAD to request a change to AD 2016-08-12. We did not change this AD.

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

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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

We reviewed GE GEnx-1B SB 72-0314 R00, dated April 1, 2016. The SB describes procedures for increasing the clearance of the fan stator module assembly. We also reviewed GE GEnx-1B SB 72-0309 R00, dated March 11, 2016. That SB describes procedures for increasing the clearance of the fan stator module assembly. We also reviewed GE GEnx-1B SB 72-0317 R00, dated June 29, 2016. That SB releases a new fan stator module assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 89 engines installed on airplanes of U.S. registry. We also estimate that it will take about 40 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $302,600.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

Discussion

On May 10, 2016, at 81 FR 28766, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Bell Model 430 helicopters with bolt part number (P/N) MS21250-08083 installed. The NPRM proposed to require, within 10 hours time-in-service (TIS), revising the Airworthiness Limitations section of the applicable maintenance manual or Instructions for Continued Airworthiness (ICA) by establishing a life limit of 5,000 hours TIS for each bolt P/N MS21250-08083, determining the number of hours TIS for each bolt and using the helicopter's hours if the hours TIS of a bolt is unknown, and removing from service each bolt that has reached or exceeded its life limit. The proposed requirements were intended to establish a life limit for the bolt to prevent failure of a bolt, failure of a main rotor hub, and subsequent loss of control of a helicopter.

Transport Canada, which is the aviation authority for Canada, has issued Canadian AD No. CF-2013-26, dated September 24, 2013, to correct an unsafe condition for certain serial-numbered Bell Model 430 helicopters. Transport Canada advises that bolt P/N MS21250-08083, which replaced bolt P/N 20-065-08083 in 2009, has a retirement life of 5,000 hours. However, the retirement life for the replacement bolt was inadvertently omitted from the limitations section of the Bell 430 maintenance manual. Transport Canada advises that this situation, if not corrected, could result in failure of a bolt and loss of control of the helicopter. Transport Canada AD No. CF-2013-26 requires reviewing the helicopter records to determine if bolt P/N MS21250-08083 is installed, creating a historical service record, and establishing an airworthiness life of 5,000 hours air time.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (81 FR 28766, May 10, 2016).

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design and that air safety and the public interest require adopting the AD requirements as proposed.

This AD requires compliance within 10 hours TIS, while the Transport Canada AD requires compliance within 60 days.

We reviewed Bell Helicopter Alert Service Bulletin 430-12-47, dated November 14, 2012 (ASB). The ASB states that original bolt P/N 20-065-08083 has a retirement life of 5,000 hours but has been replaced by standard bolt P/N MS21250-08083, which does not have a life limit listed in the maintenance manual. The purpose of the ASB is to establish a life limit of 5,000 hours for the replacement bolt. Bell specifies reviewing the aircraft records back to January 2009 to determine which part-numbered bolts are installed. If a replacement bolt P/N MS21250-08083 is installed, the ASB specifies using data from aircraft records to create a historical service record for the replacement bolts and reflecting the 5,000 hours life limit. The ASB also specifies updating the Bell 430 maintenance manual.

We estimate that this AD affects 43 helicopters of U.S. Registry.

We estimate that operators may incur the following costs to comply with this AD. At an average labor cost of $85 per work-hour, we estimate reviewing and revising the records requires 1 work-hour for a cost of about $85 per helicopter and $3,655 for the U.S. fleet. We estimate replacing a bolt that has exceeded its life limit requires 0.5 work-hour plus $290 for a replacement bolt, for a total cost of $333 per bolt.

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 helicopters identified in this rulemaking action.

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain CMI TSIO-550-K, TSIOF-550-K, TSIO-550-C, TSIOF-550-D, and TSIO-550-N reciprocating engines. The NPRM published in the Federal Register on March 11, 2016 (81 FR 12833). The NPRM was prompted by a report of an uncommanded IFSD resulting in injuries and significant airplane damage. The NPRM proposed to require replacing the oil cooler cross fitting assembly. 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. We received no comments on the NPRM or on the determination of the cost to the public.

We increased our estimate of the cost of the affected parts in this AD from $0 to $261 per engine and increased the number of labor hours to perform the replacement from 1 to 2 hours. This increased the overall estimated cost of compliance from $111,095 to $563,317.

We revised our reference in this AD from CMI Critical Service Bulletin (CSB) CSB15-7, Revision A, dated November 10, 2015 (also referred to as CMI CSB CSB15-7A, dated November 10, 2015) to CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB CSB15-7B) to reflect the latest service information published by CMI.

We clarified in this AD that the affected oil cooler cross fitting has a part number AN918-1J or AN918-2J.

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

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed CMI CSB CSB15-2, Revision C, dated November 9, 2015 (also referred to as CMI CSB CSB15-2C, dated November 9, 2015), and CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB CSB15-7B, dated April 26, 2016). The CSBs describe detailed procedures for replacing oil cooler cross fittings, nipples, and bushings with a redesigned oil cooler cross fitting. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 1,307 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2 hours per engine to comply with this AD. The average labor rate is $85 per hour. Parts cost about $261 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $563,317. Our cost estimate is exclusive of possible warranty coverage.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, 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.

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, November 10, 2016.

Part 760 of the Export Administration Regulations (EAR) is entitled “RESTRICTIVE TRADE PRACTICES OR BOYCOTTS,” otherwise referred to as the antiboycott provisions of the EAR. These provisions apply to, and may prohibit, certain activities in the interstate or foreign commerce of the United States undertaken by United States persons (defined in § 760.1(b)) with intent to comply with, further or support an unsanctioned foreign boycott (see § 760.1(e)). In addition, § 760.5(a)(1), Scope of Reporting Requirements, requires United States persons to report to the Department of Commerce (Department) certain requests they receive to take any “action which has the effect of furthering or supporting a restrictive trade practice or boycott fostered or imposed by a foreign country against a country friendly to the United States or against any United States person. . . .” (boycott-related requests). Section 760.5(b), Manner of Reporting, specifies the required reporting procedures; specifically, § 760.5(b)(4)—(b)(7) prescribe the manner of submission of the report to the Department. Failure to report such boycott-related requests in the manner prescribed may constitute a violation of the EAR.

Prior to this rule, § 760.5(b)(4) and (5) of the EAR required United States persons to prepare reports of boycott-related requests on form BIS 621-P (single transaction) or on form BIS 6051-P (multiple transactions), both available on-line through the Office of Antiboycott Compliance (OAC) page of the BIS Web site (OAC Web page) in a fillable PDF format, and to submit the reports in duplicate paper copy to OAC postmarked by the last day of the month following the calendar quarter in which the request was received (or, if received outside the United States, by the last day of the second month following the calendar quarter in which the request was received).

While United States persons may continue to submit paper reports by mail consistent with § 760.5(b)(4)—(b)(7), this final rule amends the EAR to allow submission of reports electronically, with the same deadlines, through the OAC Web page.

These revisions amend only the manner of reporting by offering an alternative method of submitting the report; in all other respects, the reporting requirements remain unchanged. Electronic filing offers the recipient of a boycott-related request a faster and less burdensome method to fulfill the regulatory reporting requirement than paper submission by mail. This action is consistent with the Administration's ongoing efforts to modernize regulatory requirements. Information on both paper and electronic submissions is available through the OAC Web page at http://bis.doc.gov/index.php/enforcement/oac?id=300.

United States persons who choose to submit reports electronically may access the electronic form via a link on the OAC Web page. Once all required fields are completed and the report has been submitted electronically, an electronic “Submission Confirmation” notification, confirming the date and time of receipt of the submission by OAC, will automatically be displayed on the reporting person's screen. Additional guidance on accessing and completing electronic reports is available on the OAC Web page or by contacting OAC at 202.482.2448.

In this rule, BIS amends § 760.5 (Reporting Requirements) by revising paragraph (b) to provide United States persons with the option to submit reports of boycott-related requests electronically through the OAC Web page, as described above. Specifically, in this rule, BIS authorizes the electronic reporting option by amending paragraphs (b)(4), (b)(5), (b)(6) and (b)(7) of § 760.5 of the EAR.

The Export Administration Act of 1979, 50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov), has been in lapse since August 21, 2001. The President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52587 (Aug. 8, 2016)), has continued the EAR in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

1. Executive Orders 13563 and 12866 direct agencies to assess all 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, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. This rule involves a collection previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0012, “Report of Requests for Restrictive Trade Practice or Boycott—Single or Multiple Transactions,” which carries a burden hour estimate of 71 minutes to prepare and submit. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and the aforementioned OMB Control Number are expected to decrease slightly as a result of the addition of an electronic method to submit required reports of boycott requests through the OAC Web page pursuant to § 760.5 (Reporting Requirements) of the EAR. Notwithstanding any other provisions of law, no person is required to respond to, or may be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b), BIS finds that publication of this rule in other than final form is unnecessary because the amendments in this rule are administrative changes. They are provided to notify the public that an electronic filing option is available as a result of the technical update of the capabilities of OAC's information technology system. These administrative changes will not affect the rights of the public to continue to use the report filing option that existed prior to these changes. They do not change the existing regulatory requirement that United States persons report requests they receive to take certain actions in support of restrictive trade practices or boycotts. They only offer an option to use a second method, electronic reporting, as an alternative to reporting by mail. Offering this second method may facilitate compliance with the reporting requirements.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3) because the delay would be contrary to the public interest. The delay in effectiveness delays the availability to the public of the additional method of filing reports. BIS is simply amending the EAR to provide a second reporting method. Further, this rule is an administrative change to assist the public in complying with reporting requirements. Delaying this action would not serve any other practical purpose. Delaying the notice to the public of the new report filing option is contrary to the interest of establishing methods of making regulatory compliance efficient, and, therefore, less burdensome.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking is not required under the APA or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required, and none has been prepared.

Accordingly, part 760 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

I. Introduction

As part of its ongoing regulatory review program, the Commission published a Federal Register Notice in 2014 1 seeking comment on the costs, benefits, and overall impact of the Rules. After the comment period closed, in December 2014, Congress enacted amendments to the Hobby Act. In response, the Commission published a Notice of Proposed Rulemaking (“NPRM”) earlier this year addressing the comments it received, proposing amendments to the Rules to track Congress' changes to the Hobby Act, and posing additional questions.2 The NPRM asked, in particular, whether the proposed amendments would appropriately implement Congressional changes to the Act, and what regulatory burden the proposed amendments might impose. The Commission did not receive substantive comments in response to this NPRM, and the record supports amending the Rules as proposed. Accordingly, this Notice describes the background of the Commission's regulatory review, summarizes the record, and explains the grounds for amendments to the Rules. Additionally, it provides analyses required by the Regulatory Flexibility and Paperwork Reduction Acts and sets forth the amended Rules provision.

On November 29, 1973, President Nixon signed the Hobby Protection Act, 15 U.S.C. 2101-2106. The Hobby Act requires manufacturers and importers of “imitation political items” 3 to “plainly and permanently” mark them with the “calendar year” the items were manufactured. Id. 2101(a). The Hobby Act also requires manufacturers and importers of “imitation numismatic items” 4 to “plainly and permanently” mark these items with the word “copy.” Id. 2101(b). The Act further directed the Commission to promulgate regulations for determining the “manner and form” that imitation political items and imitation numismatic items are to be permanently marked with the calendar year of manufacture or the word “copy.” Id. 2101(c).

In 1975, the Commission issued Rules and Regulations Under the Hobby Protection Act, 16 CFR part 304.5 The Rules track the definitions used in the Hobby Act and implement that Act's “plain and permanent” marking requirements by establishing where the item should be marked, the sizes and dimensions of the letters and numerals to be used, and how to mark incusable and nonincusable items.6 In 1988, the Commission amended the Rules to provide additional guidance on the minimum size of letters for the word “copy” as a proportion of the diameter of coin reproductions.7

The Commission reviewed the Rules in 2004. That review yielded many comments proposing that the Commission expand coverage to products beyond the scope of the Hobby Act and address problems involving the selling (or passing off) as originals of reproductions of antiques and other items not covered by the Act. However, the Commission retained the Rules without change, noting that it did not have authority under the Hobby Act to expand the Rules as requested.8

In 2014, the Commission again requested public comment on the Rules' costs, benefits, and overall impact.9 That comment period closed on September 22, 2014.

On December 19, 2014, President Obama signed into law H.R. 2754, the Collectible Coin Protection Act (“CCPA”), a short set of amendments to the Hobby Act. The CCPA amends the Act's scope to address not only the distribution by manufacturers and importers of imitation numismatic items, but also “the sale in commerce” of such items. CCPA, Public Law 113-288, section 2(1)(A) (2014). Additionally, the CCPA makes it a violation of the Hobby Act “for a person to provide substantial assistance or support to any manufacturer, importer, or seller if that person knows or should have known that the manufacturer, importer, or seller is engaged in any act or practice” violating the marking requirements of the Act. Public Law 113-288, section 2(1)(B).10

The Commission received six comments 11 in response to its 2014 FRN: Four from members of the general public; one from a self-identified professional coin and paper money dealer; and one from an attorney with asserted experience pertaining to coins and other collectibles.

All of the commenters who addressed the issue supported the Rules; none advocated rescinding them. For example, one commenter stated, “there [is] a continuing need for the Rules as currently promulgated because . . . they do protect consumers.” 12 Another described the Act as “a boon to collectors of legitimate numismatic and political items,” and stated: “Over the years the presence of the law and supporting regulations has provided guidance for makers of replicas.” 13 A dealer stated that the Act “is a brilliant effort to help protect the consumer from fraud, and . . . is well thought of across all [l]egitimate [d]ealers.” 14

Some commenters suggested modifications to the Rules. In particular, several commenters suggested modifications to address “fantasy coins,” government-issued coins altered by non-governmental entities to bear historically impossible dates or other features marketed as novelties.15 Commenters variously suggested that the Commission require manufacturers of fantasy coins to stamp such items with a “FANTASY” mark,16 expressly permit the sale of such items without an identifying mark,17 or ban such items altogether.18 One commenter specifically suggested expanding the Rules' scope to incorporate the provisions of the CCPA before Congress adopted it and sent it to the President for his signature.19

From the responses to its 2014 request for public comment, the Commission concluded that there was a continuing need for the Rules, and that the costs they impose on businesses were reasonable.20 Commenters who addressed the subject supported the Rules, and no dealer or business expressed the view that they should be rescinded or revised to reduce costs. Further, the Commission noted that after the comments period closed, Congress expanded the Hobby Act's scope (addressing, among others, persons who substantially assist or support manufacturers, importers, or sellers that violate the Act's marking requirements). This change evinces Congress' conclusion that the Rules did not impose undue costs upon businesses or the public. The Commission thus concluded that both the record and Congressional action supported retaining the Rules.

Additionally, the Commission found that it was unnecessary to amend the Rules to address specific collectible items (such as “fantasy coins,” as some commenters suggested) because it can address specific items as the need arises.21 Notably, the Commission has addressed whether coins resembling government-issued coins with date variations are subject to the Rules. In re Gold Bullion Int'l, Ltd., 92 F.T.C. 196 (1978). It concluded that such coins should be marked as a “COPY” because otherwise they could be mistaken for an original numismatic item.22

Background

This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 165(i) of the Internal Revenue Code (Code) regarding the election to deduct a loss attributable to a federally declared disaster for the taxable year prior to the year in which the disaster occurred.

Under section 165, a loss from a federally declared disaster is a form of casualty loss. A casualty loss is generally allowed as a deduction only for the taxable year in which the loss is sustained (disaster year). Section 165(i) provides an exception to the general timing rule by allowing a taxpayer to elect to treat an allowable loss occurring in a disaster area and attributable to a federally declared disaster as sustained in the taxable year immediately prior to the taxable year in which the disaster occurred (preceding year).

Taxpayers make the election under section 165(i) by clearly indicating on an original return, an amended return, or a refund claim, that the election has been made. The existing regulations under section 165(i) provide that the original return, amended return, or refund claim must be filed on or before the later of: (1) The due date of the taxpayer's income tax return (determined without regard to any extension of time for filing the return) for the disaster year; or (2) the due date of the taxpayer's income tax return (determined with regard to any extension of time for filing the return) for the preceding year. Thus, taxpayers typically have until the unextended due date of the return for the disaster year to make the section 165(i) election.

Concerns have been raised that the due date for making the section 165(i) election may not always provide sufficient time for taxpayers affected by disasters to consider whether to make the election. These concerns led the Department of the Treasury (Treasury Department) and the IRS to issue notices postponing the due date in the wake of a number of federally declared disasters in the last ten years. Notice 2006-17, 2006-1 C.B. 559, postponed the due date for victims of Hurricanes Katrina, Rita, and Wilma to make a section 165(i) election for their disaster losses to October 16, 2006. Notice 2013-21, 2013-15 I.R.B. 903, postponed the due date for victims of Hurricane Sandy to make a section 165(i) election for their disaster losses to October 15, 2013. Notice 2014-20, 2014-16 I.R.B. 937, postponed the due date for victims of a major Colorado flooding event to make a section 165(i) election for their disaster losses to October 15, 2014.

These temporary regulations add a paragraph that defines the following terms for purposes of the temporary regulations: Federally declared disaster; federally declared disaster area; disaster loss; disaster year; and preceding year. A federally declared disaster means any disaster subsequently determined by the President of the United States to warrant assistance by the Federal Government under the Robert T. Stafford Disaster Relief and Emergency Assistance Act or a successor enactment. A federally declared disaster area is the area determined to be eligible for assistance pursuant to the Presidential declaration in paragraph (b)(1) of the section. A disaster loss is a loss occurring in a federally declared disaster area that is attributable to a federally declared disaster and that is otherwise allowable as a deduction for the disaster year under section 165(a) and §§ 1.165-1 through 1.165-10 of the Income Tax Regulations. The disaster year is defined as the taxable year in which a taxpayer sustains a loss attributable to a federally declared disaster. The preceding year is the taxable year immediately prior to the disaster year.

These temporary regulations generally provide that the due date for making the section 165(i) election is six months after the due date for filing the taxpayer's federal income tax return for the disaster year (determined without regard to any extension of time to file). This amount of time is comparable to the length of the postponements of the due dates for making the election granted in the notices identified in the Background section of this preamble.

These temporary regulations also authorize the Treasury Department and the IRS to issue additional guidance regarding the time and manner for making the section 165(i) election. The authorization in these temporary regulations will permit the Treasury Department and the IRS to act quickly to adapt to both taxpayer needs and the needs of tax administration as future disasters occur.

Contemporaneously with these temporary regulations, the Treasury Department and the IRS are issuing Rev. Proc. 2016-53, I.R.B 2016-44, which specifies how a taxpayer makes a section 165(i) election and incorporates the due date for making the election provided in these temporary regulations.

These temporary regulations extend the period of time for revoking a section 165(i) election to ninety (90) days after the due date for making the election. This change conforms to the rule established by the United States Tax Court in Matheson v. Commissioner, 74 T.C. 836 (1980), acq., AOD-1980-177. These temporary regulations also authorize the Treasury Department and the IRS to issue additional guidance regarding the time and manner of revoking the election. Rev. Proc. 2016-53 specifies how a taxpayer revokes a section 165(i) election and incorporates the due date for revoking the election provided in these temporary regulations.

These temporary regulations reflect rules established elsewhere in federal tax law that a taxpayer cannot deduct the same loss in more than one taxable year. Taxpayers must amend the return for the disaster year in order to make the section 165(i) election for a disaster loss if the taxpayer has deducted such loss for the disaster year. Similarly, taxpayers must amend the preceding year return to revoke a section 165(i) election before filing a return or amended return to deduct the loss in the disaster year. Rev. Proc. 2016-53 contains further guidance for taxpayers in amending returns and taking consistent return positions to minimize the administrative burden on the IRS in ensuring the prompt processing of refunds.

These temporary regulations are effective immediately because they provide relief to taxpayers who suffer casualty losses attributable to federally declared disasters and the Treasury Department and the IRS anticipate a significant number of casualty losses arising from recent instances of flooding in areas located throughout the United States, including Texas and Louisiana.

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), please refer to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section in this issue of the Federal Register. Pursuant to section 7805(f) of the Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal authors of these regulations are Daniel Cassano and Christopher Wrobel of the Office of the Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (http://www.pbgc.gov).

PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for November 2016.1

The November 2016 interest assumptions under the benefit payments regulation will be 0.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for October 2016, these interest assumptions are unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during November 2016, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

On April 19, 2016 we published a notice of proposed rulemaking (NPRM) entitled Safety Zones; San Francisco, CA, in the Federal Register (81 FR 22946), to amend several permanent safety zones located in the Captain of the Port San Francisco zone that are established to protect public safety during annual firework displays. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to the amended fireworks safety zones. We received no comments on the NPRM nor did we receive a request for public meeting. A public meeting was not held.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the current outdated fireworks locations, if not updated, pose safety concerns for event crew, spectators, participants of the event, participating vessels, and other users and vessels of the waterway.

As noted above, we received no comments on our NPRM published on April 19, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule amends Table 1 in § 165.1191 to update three events to reflect the current event locations. These events are listed numerically in Table 1 of this section: (7), (8), (22).

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

Executive Orders 12866 and 13563 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. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of each safety zone. Vessel traffic would be able to safely transit around each safety zone which would impact a small designated area of the COTP San Francisco zone for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Local Notice to Mariner and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zones.

The Regulatory Flexibility Act of 1980, 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 would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above this rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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 would 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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination 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 a safety zones lasting less than 1 hour that would prohibit entry within 1,000 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

Throughout this document, “Reviewing Authority,” “we,” “us” and “our” refer to the EPA. The information in this preamble is organized as follows:

Entities potentially affected by this final action consist of owners and operators of facilities included in the following source categories that are located, or planning to locate, in an Indian reservation or in another area of Indian country (as defined in 18 U.S.C. 1151) over which an Indian tribe, or the EPA, has demonstrated that the tribe has jurisdiction where there is no EPA-approved program in place and that are subject to the requirements of the Federal Indian Country Minor NSR rule.

This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be potentially affected by this action. You should examine the applicability criteria in the Federal Minor NSR Program in Indian Country (40 Code of Federal Regulations (CFR) 49.153) to determine whether your facility could be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, contact the appropriate person listed in the FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of this final rule is posted on the tribal minor NSR home page at https://www.epa.gov/tribal-air/tribal-minor-new-source-review.

In July 2011, the EPA issued the Federal Minor NSR Program in Indian Country rule 1 that established, among other things, the requirements and process for the preconstruction permitting of minor sources in Indian country. Under the rule, on or after 3 years from the effective date of the Federal Indian Country Minor NSR rule (September 2, 2014), an owner or operator must obtain a preconstruction permit from the Reviewing Authority,2 if the owner or operator intends to construct a new true minor source 3 or modify an existing true minor source in Indian country. The rule also specifies the process and requirements for using general permits as a streamlined permitting approach to authorize construction and modification of true minor sources. General permits streamline the preconstruction permitting of new or modified true minor sources because they involve the issuance of one permit that can apply to multiple stationary sources that have similar emissions units.

In this action, the EPA is finalizing general permits for the following six source categories for the permitting of affected emissions units and emissions-generating activities: concrete batch plants; boilers and emergency engines; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. We are providing the following implementation documents and tools for all of the permits we are finalizing today: questionnaires; instructions; potential to emit (PTE) calculators; background documents; and Request for Coverage Forms (applications). For all of these permits, the implementation tools and documents are available at either: https://www.epa.gov/tribal-air/tribal-minor-new-source-review or Docket ID No. EPA-HQ-OAR-2011-0151.

Five prior actions are also relevant to this action. First, in a final rulemaking signed May 22, 2014, and published June 16, 2014,4 the EPA amended the Federal Minor New Source Review Program in Indian Country rule by finalizing the following three actions:

1. Extending the minor NSR permitting deadline for true minor sources in the oil and natural gas sector located, or planning to locate, in Indian country (§ 49.151(c)(1)(iii)(B));

2. Adjusting the registration deadline to conform to the extended permitting deadline for true minor sources in the oil and natural gas sector (§§ 49.151(c)(1)(iii)(A) and 49.160(c)(1)(ii) and (iii)); and

3. Eliminating a requirement for all true minor sources that begin construction before September 2, 2014, and are eligible to construct pursuant to a general permit, to obtain a minor NSR permit 6 months after the EPA publishes the relevant general permit. No general permits had been finalized by the date 6 months prior to September 2, 2014, so the provision was moot (§ 49.151(c)(1)(iii)(B)).

Second, on May 1, 2015, the EPA published a final rule, “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country for Five Source Categories,” to simplify the Clean Air Act (CAA) permitting process for certain smaller sources of air pollution commonly found in Indian country.5 In the action, the EPA finalized general permits for use in Indian country for new or modified minor sources in the following two source categories: hot mix asphalt plants and stone quarrying, crushing and screening facilities. The EPA also finalized permits by rule for use in Indian country for new or modified minor sources in three source categories: auto body repair and miscellaneous surface coating operations; gasoline dispensing facilities; and petroleum dry cleaning facilities. The EPA also took final action authorizing the use of general permits established under the program to create synthetic minor sources.

Third, on September 18, 2015, the EPA proposed a federal implementation plan (FIP) 6 that would apply to new true minor sources and minor modifications at existing true minor sources in the production segment of the oil and natural gas sector that are locating or expanding in Indian reservations or in other areas of Indian country over which an Indian tribe, or the EPA, has demonstrated the tribe's jurisdiction. The FIP was proposed to satisfy the minor source permitting requirement under the Federal Indian Country Minor NSR rule.

Fourth, on February 24, 2016, we finalized three amendments to the Federal Indian Country Minor NSR rule that we proposed in our September 18, 2015, proposal, along with the FIP:

1. We revised the deadline under § 49.151(c)(1)(iii)(B) by which new and modified true minor sources in the oil and natural gas sector that are located in (or planning to locate in) reservation areas of Indian country or other areas of Indian country for which tribal jurisdiction has been demonstrated must obtain a minor NSR permit prior to beginning construction. We extended the deadline from March 2, 2016, to October 3, 2016, for all new and modified true minor sources within the oil and natural gas sector located in Indian country.

2. We revised § 49.151(c)(1)(iii)(A) to conform the registration deadline to the extended permitting deadline in § 49.151(c)(1)(iii)(B).

3. We revised § 49.160(c)(1)(ii) to conform the registration deadline to the extended permitting deadline in § 49.151(c)(1)(iii)(B).

Finally, on June 3, 2016, the EPA published the final FIP for true minor sources in the oil and natural gas sector (and associated amendments to the Federal Indian Country Minor NSR rule).7 The final FIP applies to the true minor sources in Indian country engaged in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector.

On August 21, 2006, the EPA proposed the regulation: “Review of New Sources and Modifications in Indian Country” (i.e., Indian Country NSR rule).8 Within this regulation, the EPA proposed to protect air quality in Indian country by establishing a FIP program to regulate the modification and construction of minor stationary sources consistent with the requirements of section 110(a)(2)(c) of the CAA. (The proposal also included a major source NSR program for areas of Indian country designated as nonattainment.) The minor source part of the program is officially titled Federal Minor New Source Review Program in Indian Country, but we generally refer to it as the Federal Indian Country Minor NSR rule. Under the Federal Indian Country Minor NSR rule, we proposed to fill a regulatory gap and to provide a mechanism for issuing preconstruction permits for the construction of new minor sources and minor modifications at major and minor sources in Indian country. We promulgated final rules on July 1, 2011,9 and the FIP became effective on August 30, 2011.

The Federal Indian Country Minor NSR rule applies to new and modified minor stationary sources and to minor modifications at existing major stationary sources located in Indian country 10 where there is no EPA-approved program in place. Beginning September 2, 2014, any new stationary sources that will emit, or will have the potential to emit, a regulated NSR pollutant in amounts that will be: (1) Equal to or greater than the minor NSR thresholds established in the Federal Indian Country Minor NSR rule; and (2) less than the amount that would qualify the source as a major source or a major modification for purposes of the PSD Program or nonattainment major NSR, must apply for and obtain a minor NSR permit before beginning construction of the new source.

Likewise, any existing stationary source (minor or major) must apply for and obtain a minor NSR permit before beginning construction of a physical or operational change that will increase the allowable emissions of the stationary source by more than the specified minor source threshold amounts, if the change does not otherwise trigger the permitting requirements of the PSD or nonattainment major NSR program(s).11

Among other things, the Federal Indian Country Minor NSR rule created a framework for the EPA to streamline the issuance of preconstruction permits to true minor sources by using general permits.

“True minor source” under the Federal Indian Country Minor NSR rule means a source that emits, or has the PTE, regulated NSR pollutants in amounts that are less than the major source thresholds under either the PSD Program at 40 CFR 52.21, or the Major NSR Program for Nonattainment Areas in Indian Country at 40 CFR 49.166-49.173, but equal to or greater than the minor NSR thresholds in § 49.153, without the need to take an enforceable restriction to reduce its PTE to such levels. A source's PTE includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the 28 source categories listed in part 51, appendix S, paragraph II.A.4(iii) or § 52.21(b)(1)(iii) of 40 CFR, as applicable. By contrast, “synthetic minor source” means a source that otherwise has the PTE regulated NSR pollutants in amounts that are at or above those for major sources, but that has taken a restriction so that its PTE is less than such amounts. Such restrictions must be enforceable as a legal and practical matter.

The Federal Indian Country Minor NSR rule specifies the process and requirements for using general permits to authorize construction and modifications at true minor sources as a streamlined permitting approach. A general permit, for purposes of this action, is a permit document that contains standardized requirements that multiple stationary sources can use. The EPA may issue a general permit for categories of emissions units or stationary sources that are similar in nature, have substantially similar emissions, and would be subject to the same or substantially similar permit requirements.12 “Similar in nature” refers to size, processes, and operating conditions. The purpose of a general permit is to provide for protection of air quality, while simplifying the permitting process for similar minor sources. General permits offer a cost-effective means of issuing permits and provide a quicker and simpler mechanism for permitting minor sources than the source-specific permitting process.

While the final Federal Indian Country Minor NSR rule contemplated issuance of general permits by the EPA Regional offices, we have determined, for the permits we are finalizing here, that a nationwide action is appropriate. Through this action, we are finalizing general permits to serve as preconstruction permit authorizations that contain emission limitations and other restrictions to govern how specified sources construct, modify and operate.

On July 17, 2014, the EPA published a proposed rule, “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country,” to simplify the CAA permitting process for certain smaller sources of air pollution commonly found in Indian country.13 The proposed action was intended to facilitate the implementation of the Federal Indian Country Minor Source NSR rule issued by the EPA in July 2011 in a manner that minimized the administrative and time burden associated with the permitting process, while at the same time adequately protecting air quality in Indian country.

As its preferred approach, the EPA made available draft general permits for use in Indian country pursuant to the Federal Indian Country Minor NSR rule for new or modified true minor sources in the following six source categories: Concrete batch plants; boilers; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. In the alternative, the EPA also proposed a permit by rule for use in Indian country for new or modified true minor sources in one of the six source categories: graphic arts and printing operations.

We requested comment on the following areas:

1. All aspects of the permit documents and implementation tools for the six source categories:

• Concrete batch plants;

• Boilers; 14

• Stationary spark ignition engines;

• Stationary compression ignition engines;

• Graphic arts and printing operations; and

• Sawmill facilities;

2. The appropriateness of using a streamlined general permit/permit by rule application for one source category: graphic arts and printing operations;

3. Various aspects of the EPA's conclusion on its control technology review that the measures in the draft/proposed permits are technically and economically feasible and cost effective because they are currently used by similar sources in other areas of the country;

4. Setback requirements, which are provisions related to the location of the emitting activities and the source property boundary and certain nearby structures;

5. The process for sources to address threatened or endangered species and historic properties with respect to the six categories in the proposal;

6. Use of throughput limits and capacity limits as surrogates for tons per year (tpy) allowable emission limitations, or, alternatively, establishment of annual allowable emission limitations for each pollutant, and the use of throughput limits as surrogate monitoring measures to demonstrate compliance with tpy annual allowable emission limitations;

7. Finalizing both permitting mechanisms for graphic arts and printing operations by providing authorization to construct or modify true minor sources in this category via permits by rule and by providing enforceable limitations to create synthetic minor sources in this category via general permits; and

8. A proposed rule change to the Federal Indian Country Minor NSR rule: shortening the general permit application review process from 90 to 45 days for graphic arts and printing operations.

This section outlines the major areas where we sought comment in the July 17, 2014, proposal, highlights our responses to major comments received and describes our final action. We received 11 comments from industry (or their representatives), 12 comments from tribes (or their representatives), 1 comment from a local air quality agency and 1 comment from a state environmental agency. The Response to Comments (RTC) Document can be found in docket EPA-HQ-OAR-2011-0151 and is available online at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review. It contains more detailed descriptions of the comments we received and our responses to them.

As our preferred approach, the EPA made available draft general permits for use in Indian country pursuant to the Federal Indian Country Minor NSR rule for new or modified minor sources in the following six source categories: Concrete batch plants; boilers; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. In the alternative, we also proposed a permit by rule for use in Indian country for new or modified minor sources in the graphic arts and printing operations source category. Overall, we sought comment on all aspects of the permit documents and implementation tools for these source categories. Specifically, Section VI of the July 17, 2014, proposal provided a summary of the specific terms and conditions of the general permits and indicated specific areas where we requested comment.

The following sections provide an abbreviated summary of changes to the implementation tools, as well as significant comments on the draft general permits for the six source categories in this final rule and our responses. Detailed responses to the comments on the permits and related tools and documents are addressed in the RTC Document. In our final action, based on comments, we have made substantive changes to the terms and conditions of all of the draft permits and the related implementation tools in several areas, including the following: setback requirements; throughput limits; various control requirements; and enhancements and clarifications to the implementation tools.

In direct response to public comments (and upon further review), we are revising the draft general permits and implementation tools in many areas, including as follows:

(1) Expanding the scope of the draft boilers general permit to include emergency engines so that the final general permit is titled: “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country”;

(2) Removing emissions limitations for emergency engines from the general permits for the following three source categories: Sawmill facilities, graphic arts and printing operations and concrete batch plants, as discussed below with respect to the final engines general permits (we did so because we expect that emergency engines that are not located at sources covered by a general permit or permit by rule that we have already developed, and that are not otherwise exempt consistent with § 49.153 of the Federal Indian Country Minor NSR rule,15 will be located at a source with one or more boilers and, thus, will be covered by the “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country”);

(3) Recalculating maximum capacity ratings for certain boilers in the final “General Air Quality Permit for New or Modified Boilers and Emergency Engines in Indian Country” based on non-greenhouse gas (GHG) pollutants (e.g., nitrogen oxides (NOX)) to reflect the change in GHG permitting requirements resulting from the U.S. Supreme Court's June 23, 2014, ruling 16 and to ensure minor source status for eligible sources;

(4) Revising and reconfiguring control options for the following three general permits to accommodate their use by sources seeking synthetic minor status: “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country,” “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” and “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country”; 17

(5) Revising the titles of all six general permits in this action, to make it clear that they are all available for true minor and synthetic minor sources (including all of the implementation tools), by removing the words “true minor” (and adding clarifying text to the Request for Coverage Forms to reflect this expanded coverage of source types);

(6) Adjusting the definition of “promptly” for reporting deviations under the final “General Air Quality Permit for New or Modified Boilers and Emergency Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country” to conform to the definition of this term in the general permits that the EPA has already completed for hot mix asphalt plants and stone quarrying, crushing and screening facilities;

(7) Adjusting the condition concerning the timing and location for records retention in the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country” to conform to the corresponding condition in the general permits the EPA has already completed for hot mix asphalt plants and stone quarrying, crushing and screening facilities;

(8) Revising the general permit for sawmill facilities to accommodate sources that may trigger the major source threshold for hazardous air pollutants (HAPs) prior to reaching the 80 ton per year/12-month rolling emission limits in the permit and that, thus, may need to seek synthetic minor status for HAP emissions;

(9) Revising the throughput limits in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to match the revised input data provided in the sawmill facilities PTE calculator (from thousand board-feet (Mbf) to wood log inputs expressed in tons);

(10) Correcting the board-foot throughput limit in the “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to reflect corrections made to the sawmill facilities PTE calculator;

(11) Adding a separate throughput limit to the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” for Serious PM10 (particulate matter equal to or less than 10 microns in diameter) nonattainment areas and PM2.5 (particulate matter equal to or less than 2.5 microns in diameter) nonattainment areas;

(12) Clarifying in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” that gaseous and liquid-fueled auxiliary heaters up to 10 million British thermal units per hour (MMBtu/hour) are allowed, separate from the 30 MMBtu/hr boiler limit, which can include solid fuels like biomass;

(13) Revising the boiler and auxiliary heater capacity limits for Severe and Extreme ozone nonattainment areas in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to allow for larger boiler capacity;

(14) Adding a condition to the “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” that restricts all emergency engines in Severe and Extreme ozone nonattainment areas to units that are model year 2006 or later to ensure the sources' emissions stay below major source levels;

(15) Changing the permitting tools (e.g., background documents) for the source categories to reflect changes made to permit requirements in areas such as setbacks and treatment of emergency engines;

(16) Retitling the implementation tools for the boilers and emergency engines source category to match the change in the title of the general permit;

(17) Clarifying each of the implementation tools for the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” to better identify the types of sources likely to be eligible for these permits and to clarify the requirements, including reflecting the removal of the emergency engines provisions from these permits;

(18) Removing the list of eligibility criteria at the front of the questionnaires, to avoid confusion and redundancy with the eligibility criteria provided in the Request for Coverage Forms;

(19) Changing the instructions and questionnaires to reflect changes made to the Request for Coverage Forms;

(20) Revising the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Minor Source Concrete Batch Plants in Indian Country” to:

• Clarify that the source may seek approval for multiple locations and that additional locations may be added in the future; and

• Add a section allowing a source to list multiple source locations in cases where a portable source is planning to relocate and for which it wants Reviewing Authority approval;

(21) Adding to the Request for Coverage Forms for the general permits a request for estimates of PTE and, at existing sources, actual emissions, to satisfy the minor source registration requirement of § 49.160, and clarifying that sources covered by the general permits must also register under § 49.160 (submittal of the Request for Coverage Form satisfies that requirement);

(22) Adding standards for non-engine combustion units to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country”;

(23) Revising the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to require more detailed information from the applicant that is appropriate for a general permit that is being made available for both true minor and synthetic minor sources;

(24) Revising the threatened and endangered species and historic properties screening procedures in the Request for Coverage Forms to reflect changes made to those same procedures in response to comments that we received on the January 14, 2014, proposal that we also reflected in the final rule “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country for Five Source Categories,” published on May 1, 2015; 18

(25) Correcting an error on the “Input” page for the PTE calculator for the final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” that did not properly sum emissions for all of the small, auxiliary heaters and boilers, and adjusting the MMBtu/hr limit for boilers and hp for engines for Extreme ozone nonattainment areas once we corrected the error; 19 and

(26) Adding the following caveat to the PTE calculators for the six source categories in this action: “If you have one or more of the following units that are exempt from the Indian Country Minor NSR Program,20 please contact your EPA Regional office before you use this calculator to determine whether you need to obtain a minor NSR permit:

• Internal combustion engines used for landscaping purposes;

• Emergency generators, designed solely for the purpose of providing electrical power during power outages:

○ In nonattainment areas classified as Serious or lower, the total maximum manufacturer's site-rated hp of all units shall be below 500;

○ In attainment areas, the total maximum manufacturer's site-rated hp of all units shall be below 1,000;

• Stationary internal combustion engines with a manufacturer's site-rated hp of less than 5; and

• Furnaces or boilers used for space heating that use only gaseous fuel, with a total maximum heat input (i.e., from all units combined) of:

○ In nonattainment areas classified as Serious or lower, 5 MMBtu/hr or less;

○ In nonattainment areas classified as Severe or Extreme, 2 MMBtu/hr or less; and

○ In attainment areas, 10 MMBtu/hr or less.”

In addition, we made some changes in the general provisions that are included in all of the final permits from this final action and the May 1, 2015, final action. One commenter stated that the condition in the draft general permits concerning Notification of Change in Ownership is unclear in establishing whether it is the responsibility of the new permittee or the old permittee to comply with the notification requirements. The same commenter requested that certain conditions of the draft general permit be clarified to cover situations in which there is a change of operator, but the ownership of the equipment is the same. In response to the comments, the EPA has clarified in the permits for the six source categories covered by this action that it is the responsibility of the new permittee to submit a written or electronic notice to the Reviewing Authority within 90 days before or after the change in ownership is effective. For all of the permits, we have also modified the two conditions related to changes in ownership that appear in Sections 5 and 6 to include the word “operator” to clarify that these conditions cover a change in either ownership or operator where the equipment is the same.21

One commenter stated that the term “Responsible Official” should be defined to ensure truth, accuracy and completeness of required reports. The EPA agrees and, in response to the comment, we have added a definition of “Responsible Official” to each of the final permits.

Two commenters supported the proposed rule's approach of requiring each source to post the current Approval of the Request for Coverage and to label each affected emissions unit and associated air pollution control technology with the identification numbers listed in the approval. One commenter recommended that the general permit and the most current approval of the request for coverage for the permitted source “must be made available immediately upon request,” as opposed to “must be posted.” The commenter stated that it was not necessary to label the air pollution control equipment, as the description and serial numbers are provided in the application. The EPA acknowledges the support of the commenters with respect to posting the Approval of the Request for Coverage. Upon review of comments received related to the posting of the general permit in addition to the Approval of the Request for Coverage, the EPA is revising the permits to exclude the requirement that the general permits must be posted. Posting of the Approval of the Request for Coverage is required under 40 CFR 49.156(e)(6), but general permits themselves are not required under the regulation to be posted and only need to be available on site as needed. Regarding the labeling of emission units and air pollution control equipment, identification and labeling of these units is needed to facilitate identification by inspectors of equipment covered under a general permit without the need to refer to the application. Therefore, the EPA is finalizing the labeling requirements as proposed.

Three commenters supported incorporating the Approval of the Request for Coverage into the general permit, in order to ensure that the revision procedures in 40 CFR 49.159 would apply to revisions a Reviewing Authority may need to make to a previously issued Approval of a Request for Coverage. Two commenters recommended that the EPA consider amending 40 CFR 49.156 to include a provision that specifically allows for revisions to a previously issued Approval of a Request for Coverage under a general permit. Upon review of comments received related to incorporating the Approval of the Request for Coverage into the general permits, the EPA is finalizing each general permit to include the proposed language in the draft general permits related to incorporating the Approval of the Request for Coverage into each permit.

In addition, we have added a provision to all of the permits to address those circumstances that can cause a permit to become invalid under 40 CFR 49.156(e)(8). In the general permits in this action, the provision can be found in Section 6.

One commenter objected to the visible emissions 10 percent opacity limit included in the draft concrete batch plants general permit. The commenter argued that the limit would create an unequal playing field with existing concrete batch facilities subject to the Federal Air Rules for Reservations' (FARR) requirements for limiting visible emissions (40 CFR 49.124). The EPA acknowledges that the draft visible emissions opacity limit in the final “General Air Quality Permit for New or Modified Minor Source Concrete Batch Plants” (10 percent) is more stringent than the opacity limit provided for facilities in the FARR.22 The opacity limit in the FARR is a generally applicable requirement that applies to any person who owns or operates an air pollution source, regardless of whether the equipment is existing, new, or modified. This limit was not specifically developed for concrete batch plants. The EPA's general permit for concrete batch plants applies to new or modified concrete batch plants, for which we have determined a 10 percent opacity limit is achievable. In our Background Document 23 for this permit, our review of state general permits for this source category indicated a range of opacity limits. For all of the states researched, the limits ranged from no visible emissions allowed to 25 percent, with only one state having a 40 percent opacity limit. Furthermore, the opacity limit is consistent with the opacity limits for the “General Air Quality Permit for New or Modified Minor Source Stone Quarrying, Crushing, and Screening Facilities in Indian Country” (7-12 percent) and less than the opacity limit for the “General Air Quality Permit for New or Modified Minor Source Hot Mix Asphalt Plants in Indian Country” (20 percent or greater), both made available in the final rule on April 17, 2015.24 We continue to believe that a 10 percent opacity limit is achievable for new or modified concrete batch plant sources and, as a result, we are not revising the opacity limit for the final “General Air Quality Permit for New or Modified Minor Source Concrete Batch Plants in Indian Country.”

Another commenter recommended that the EPA consider the requirements in the South Coast Air Quality Management District (SCAQMD) Rule 1155—Particulate Matter from Control Devices (used to establish requirements for permitted PM air pollution control devices) and Rule 1157—PM10 Emission Reductions From Aggregate and Related Operations (which includes general performance standards and work practice requirements for opacity, unloading, loading and transferring operations, storage piles and related equipment), in establishing provisions in the draft concrete batch general permit. The commenter also requested that the general permit include certain BACT 25 requirements related to controlling PM10. One commenter specifically requested that the EPA consider certain control devices for either wet central mix plants or transit mix plants. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements and a review of the requirements suggested by the commenter and those in the draft general permit indicate that the draft permit conditions are already at least as stringent as those suggested by the commenter. Therefore, no changes in this regard were made to the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country.”

One commenter supported the use of the draft general permit for concrete batch plants to authorize relocation of a concrete batch plant to a pre-approved site location. The EPA recognizes that concrete batch plants are portable and may require the flexibility to relocate to additional areas in the future. We have revised the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country” to clarify that the facility may seek up-front approval of multiple locations and that additional locations may be added in the future.

One commenter requested that the EPA consider the requirements in three SCAQMD Rules that apply to boilers, including Rule 1146—Emissions of Oxides of Nitrogen from Industrial, Institutional and Commercial Boilers, Steam Generators, and Process Heaters; Rule 1146.1—Emissions of Oxides of Nitrogen from Small Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters; and Rule 1146.2—Emissions of Oxides of Nitrogen from Large Water Heaters and Small Boilers and Process Heaters. The commenter stated that these rules limit emissions of NOX and carbon monoxide (CO) and have requirements for initial and periodic testing, monitoring and recordkeeping. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements and a review of the requirements suggested by the commenter and those in the draft general permit indicates that the draft permit conditions are generally consistent with those suggested by the commenter for Severe and Extreme ozone nonattainment areas. For example, the emission limits for NOX and CO of the final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” are consistent with SCAQMD Rules 1146 and 1146.1. For each boiler rated at or above 2 MMBtu/hr in a Severe or Extreme ozone nonattainment area, the final permit is consistent with SCAQMD Rules 1146 and 1146.1 by containing a limit of nine parts per million (ppm) at 3 percent oxygen for NOX and a limit of 400 ppm at 3 percent oxygen for CO. However, for boilers rated below 2.0 MMBtu/hr in Severe or Extreme ozone nonattainment areas, we did not apply the requirement in SCAQMD Rule 1146.2 for owner/operators to purchase SCAQMD “compliant” boilers. As this is a nationally applicable regulation, we did not find it appropriate to require SCAQMD-compliant boilers in applicable areas everywhere due to their uncertain availability outside of the South Coast region of California. Instead, emissions from these small boilers and auxiliary heaters (those rated less than 2.0 MMBtu/hr) are restricted by limiting the combined rating of all small boilers and auxiliary heaters to a total of 10 MMBtu/hr in Extreme ozone nonattainment areas and 20 MMBtu/hr in all other areas.

We disagree that these boiler requirements should apply in all areas, as suggested by the commenter. The limits suggested by the commenter are not typically associated with attainment areas or Marginal, Moderate, or Serious ozone nonattainment areas. No changes were made to the final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country,” as a result of this comment.

Two commenters expressed confusion regarding the reference to Table 1 of the New Source Performance Standard (NSPS), 40 CFR part 60, subpart JJJJ, in the draft spark ignition engines general permit. One commenter noted that it is unclear whether the EPA is limiting the use of engines ≥100 hp to only those manufactured after the dates incorporated from Table 1 to 40 CFR part 60, subpart JJJJ, in the draft spark ignition engines general permit, or if the specified emission limits from Table 1 must be met regardless of the date of engine manufacture. Another commenter stated that the emission limits only appear to apply to engines manufactured after 2010. One commenter noted that this would exclude other newer engines and would be more restrictive than the NSPS for spark ignition engines (NSPS, 40 CFR part 60, subpart JJJJ). The commenter also stated that the draft emission limits from Table 1 are appropriate for new, modified, or reconstructed engines after July 1, 2010, or January 1, 2011, but are not appropriate for older existing engines not subject to the spark ignition engines NSPS (40 CFR part 60, subpart JJJJ) or those engines subject to the NSPS after 2007, but before the 2010 or 2011 dates listed in Table 1. The commenter asserted that, for NSPS engines, all of the emission limits and dates in Table 1 should apply to engines ≥100 hp, and that, for non-NSPS engines, emission controls should be no more stringent than those required in National Emission Standards for Hazardous Air Pollutants (NESHAP) in 40 CFR part 63, subpart ZZZZ, for existing engines. Another commenter stated that the general permits should allow for the use of existing engines in attainment areas. Commenters recommended that the EPA consider the Texas Commission on Environmental Quality's Permit by Rule for engines found in 30 Texas Air Code section 106.512 as a model.

The EPA acknowledges that our draft general permit did not clearly state our intent with regard to the types of non-emergency spark ignition engines eligible to operate under the draft general permit for spark ignition engines. We are revising the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” to clarify this issue. As a result, the requirements applicable to existing non-emergency engines in the NESHAP at 40 CFR part 63, subpart ZZZZ, are not needed in the general permit. The EPA disagrees with the commenter's suggestion that the use of engines manufactured prior to these dates should be allowed for attainment areas. Given the types of stationary sources we expect to be eligible for the final spark ignition engines general permit, we continue to determine that pre-2010 or pre-2011 engines should not be eligible for this permit. For this permit, where the covered stationary sources will mainly consist of non-emergency engines, it is necessary to limit the types of engines eligible to operate under the permit to those with the most current technology to be protective of the National Ambient Air Quality Standards (NAAQS), even in attainment areas. We note that we have not taken this approach for all of the general permits. For example, the general permits for hot mix asphalt plants; stone quarrying, crushing, and screening operations; and concrete batch plants allow for the use of existing compression ignition non-emergency engines. However, in those cases the engines covered are smaller and are not the primary equipment (and, thus, emissions) at the source.

The Texas Commission on Environmental Quality's Permit by Rule for engines found in 30 Texas Air Code section 106.512 suggested by the commenter appears to apply to a broader group of stationary sources (i.e., turbines) and is not limited to spark ignition engines. Thus, its limits would not be translatable to a general permit limited to spark ignition engines.

We are clarifying each of the draft documents for the spark ignition and compression ignition engines general permits to better identify the types of sources that are eligible for these permits. Additionally, the EPA did not intend that the draft engines permits would apply to sources where non-exempt emergency engines are present (alone or in combination with other emissions sources),26 or to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking.27 Therefore, we are revising the title of the draft boiler general permit to “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” to clarify that sources with non-exempt emergency engines should apply for that general permit.

One commenter stated that the engines general permits reference certain certification or emission requirements at 40 CFR part 89, 40 CFR part 90, 40 CFR part 1048, and Table 1 to 40 CFR part 60, subpart JJJJ, which contain complex language that may require engine operators to conduct legal analytical work. The commenter requested that the EPA list these requirements more succinctly in order to help tribal operators determine whether their sources are subject to certain requirements and what the requirements are. The commenter also requested that the EPA clarify the applications to make them as easy to understand as possible, noting that tables would be easier to follow than text.

The EPA acknowledges that the language contained in the engine regulations can be complex and potentially difficult for individual owners or operators of engines to understand. This is why the EPA has generally designed the permit requirements for engines to require the owner or operator to simply install certified engines. We are revising the draft general permit for spark ignition engines to specifically list the applicable emission standards from Table 1 to 40 CFR part 60, subpart JJJJ, instead of incorporating them by reference.28 We have also revised the permitting documents as suggested to provide more clarity to the applicable requirements.

Two commenters stated that, in the draft compression ignition engines general permit, the EPA excludes existing compression ignition engines in Condition 19, which requires non-emergency engines to be model year 2014 or later. The commenters argued that requiring sources to install only new engines would be inappropriate and inconsistent with existing engine rules. One commenter further stated that no state prohibits the relocation of existing engines, which would be prohibited under the proposed rule. The EPA notes that the commenters seem to misinterpret the intent of the draft permits for engines. These general permits are intended for a limited set of stationary sources—those consisting primarily of non-emergency engines. We generally expect the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” to be used by sources in Indian country that, for example, provide electricity or pump groundwater in areas where power from the grid is not available. The general permits are not intended to be used by all source categories with non-emergency engines. Each permit is intended for a particular source category. We are clarifying each of the documents for the spark ignition and compression ignition permits to better identify the types of sources likely to be eligible for these permits. Finally, we note that the general permits for engines do not prohibit relocation of engines. While we limit the types of engines that can be used under the permits, engines that meet the permit requirements may be relocated to a new or modified, permitted stationary source.29

Three commenters expressed the view that including compliance requirements for emergency spark ignition engines in a compression ignition engine permit and compliance requirements for emergency compression ignition engines in a spark ignition engine permit creates confusion. One commenter remarked that it is unclear which permit would be appropriate for a source operating an emergency compression ignition engine, and what criteria are used to determine when an emergency compression ignition engine would be covered under one permit or another. The EPA notes that draft permits for compression ignition and spark ignition engines contain limits on the combined hp rating for emergency engines that are at, or below, the exemption thresholds finalized in 40 CFR 49.153(c). Therefore, we are removing the emergency engine provisions from these two general permits, as this equipment is exempt from the program at the thresholds in the permits.30 We are revising the Request for Coverage Forms and questionnaires for these permits to identify this exemption. During the development of the engines general permits, the EPA finalized exemptions for certain emergency engines at 40 CFR 49.153(c).

Two commenters asserted that stack testing procedures for emergency engines are inappropriate and not required by states. Instead, the commenters recommended that the EPA include maximum non-emergency run time hour limits (e.g., 500 hours/year) in both the spark ignition and compression ignition engines general permits. The EPA disagrees that we should replace the testing requirements with limits on the hours an emergency engine can operate in non-emergency situations. However, as noted above, we are removing the requirements for emergency engines from the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country.”

Two commenters questioned the specific testing procedures outlined in the engines general permits. One commenter stated that the outlined procedures for stack testing were contradictory with regard to engine load during testing. In the draft spark ignition engines general permit, another commenter stated that emissions testing requirements should allow portable analyzer testing and test methods other than the EPA reference methods. The commenter stated that allowing portable analyzers is necessary due to the remote and dispersed nature of many engines. The EPA recognizes that some engines typically do not operate within 10 percent of peak load. However, the “within 10 percent peak load” requirement was included in the permit to be consistent with the testing requirements in the applicable NSPS. This allows testing conducted under the NSPS to be used for the general permit as well. The EPA has generally included a requirement in our general permits to ensure testing is conducted under typical operating conditions to avoid testing being conducted, for example, during startup or malfunction. We do not find the two provisions to be contradictory. Regarding the use of portable analyzers, the draft general permit for spark ignition engines provides for the use of test methods identified in 40 CFR part 60, appendix A, which allow the use of a portable analyzer. In addition, the draft spark ignition engines general permit specifically references the use of portable analyzers. No changes have been made to the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country,” as a result of this comment.

One commenter stated that the requirement to monitor fuel use for each engine on a monthly basis is not practical, given the many remote locations where engines are used for oil and gas production. The commenter further asserted that because the standards are based on an emissions/hp-hour basis, fuel measurement is unnecessary to demonstrate compliance. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.31 32 We do not anticipate that sources outside of the oil and natural gas production and natural gas processing segments of the oil and natural gas sector with stationary spark ignition and compression ignition engines will have difficulty meeting the monthly fuel use requirements. Thus, no changes have been made to the final permits as a result of this comment.

One commenter requested that the EPA provide clear direction for authorization of in-kind replacement engines. The commenter noted that engines are frequently swapped out with an in-kind engine to minimize compressor downtime, and that these replacements have the same or lower emissions than the engine being replaced. Two commenters noted that existing compressors may be moved and installed at another site to meet production needs. One commenter argued that the EPA must allow for relocation of existing engines without requiring them to be retrofitted. Another commenter suggested that the EPA consider the permit by rule and general permitting programs run by the states of Texas, Colorado, and Louisiana as models to address relocation of existing engines.

Because these commenters represent the oil and natural gas industry, the EPA infers that the commenters are referring to engines used in the oil and natural gas sector. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.33 The general permits being finalized for engines in this action do not contain any specific conditions related to in-kind replacements. The commenter has not provided a specific description for what is meant by “in-kind” replacements, only alluding to the fact they have “the same or lower emissions than the engine being replaced.” We cannot provide a more detailed response other than to point the commenter to how we addressed the issue of emissions unit relocation/replacement in the oil and natural gas industry in response to comments on final amendments to add to the list of exempted units in the Federal Indian Country Minor NSR rule.34

In the Federal Indian Country Minor NSR rule, we indicated our understanding that, in oil and gas sector operations, moving a single piece of equipment from one facility to another, or replacing a piece of equipment with a new one, can occur on a regular basis. For clarification purposes, we believed that it would be beneficial to both sources and reviewing authorities for us to list the different situations involving a piece of equipment (a unit) that we believed would be most common, and to specify the outcome with respect to minor NSR permitting and registration. In the preamble to the final rule, we listed expected outcomes to provide guidance on how we would address certain “relocation” scenarios. We did, however, indicate that the source owner/operator should still verify with its Reviewing Authority that the scenario provided, and its stated outcome, applies to its case.35 Regardless, each model year engine has to meet its applicable emissions control NSPS requirements.

One commenter stated that the requirement to “maintain onsite all records required to be kept by this permit” is not practical at unmanned oil and natural gas production facilities. The commenter asked that the requirement be modified to recognize that records for unmanned facilities are normally kept at an office having operational control of the unmanned facility where the engines are located. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.36

We do not anticipate that sources outside of the oil and natural gas production and natural gas processing segments of the oil and natural gas sector with stationary spark ignition and compression ignition engines will have difficulty meeting the recordkeeping requirements. Therefore, no changes have been made to the final permits as a result of this comment.

Two commenters stated that the reporting requirements in the draft general permits for engines are equivalent to the requirements for major sources subject to Title V. The commenters argued that these requirements are not appropriate for minor or area sources. Specifically, the commenters asserted that deviation reporting, compliance certifications, and requiring signature by a Title V equivalent “responsible official” is overly burdensome to minor sources. The commenters also stated that these requirements would increase the burden on the EPA to review these reports. One commenter asserted that engines that are already affected sources of an NSPS or NESHAP should have no additional requirements (reporting or otherwise).

While the reporting requirements contained in the draft general permits may be similar to reporting requirements of the Title V Program, the EPA disagrees that a change is warranted. In developing the draft general permits, the EPA followed the Federal Indian Country Minor NSR rule, 40 CFR 49.155(a)(5), which identifies reporting requirements that must be included in each permit. The EPA cannot simply rely on assumed existing reporting and other requirements from other rules (e.g., NSPS or NESHAP) to ensure compliance with the emission limitations in our general permits. However, in some instances the reporting requirements in the final permits in this action are similar to or identical to reporting requirements in NESHAP and NSPS standards. Thus, for some requirements reporting under the other standards will also suffice for these permits. (If a permittee has a question about whether a particular reporting requirement under a NESHAP or NSPS will also suffice for these permits, they should work with the Reviewing Authority during the review process.) Further, the requirement to have a responsible official sign reports is common and consistent with state permitting programs. It is unclear why this certification would be costly or overly burdensome for permittees, as the commenter has not provided any specific information demonstrating an actual problem or a particular difficulty.

One commenter stated that the timeframe for submittal of performance test reports in the draft engines permits is too short. The commenter noted that performance test reports are typically required to be submitted within 60 days of completion of the test by NSPS and NESHAP requirements for engines. The commenter also asked that stack test reporting required for NSPS and NESHAP satisfy the requirements for minor NSR reporting. In response, the EPA is extending the timeframe for submittal of performance test reports to 60 days for both the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country.” This timeframe is consistent with the requirements of 40 CFR part 60, subpart JJJJ, and 40 CFR part 63, subpart ZZZZ. Additionally, we are revising the draft engines general permits to clarify that facilities may satisfy the initial and subsequent stack testing requirements in the general permits by using the initial and subsequent performance tests performed to meet NSPS and NESHAP requirements, assuming the required testing requirements in the permits are met.

Two commenters requested that the engines general permits include provisions to establish a source as synthetic minor for criteria pollutants and/or HAPs. Another commenter asserted that the EPA must require more stringent monitoring, recordkeeping and reporting for these sources.

In our final action signed on April 17, 2015,37 we finalized a policy that allows for the use of general permits in Indian country to create synthetic minor sources. Consistent with the policy, and after considering the concerns raised by commenters, we are finalizing the “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the “General Air Quality Permit for New or Modified Minor Compression Ignition Engines in Indian Country” to allow for their use by true minor sources and to create synthetic minor sources.38 For the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country,” we added operational limits so that the permit serves both true minor and synthetic minor sources. For the same purpose, for the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country,” we created synthetic minor limits for fuel use for only natural gas engines as we believe that is the most likely fuel use scenario. We do not feel that we have sufficient information available to create these limits for other fuel types, as the other fuels can have varying characteristics, which will change engine efficiency and affect emissions. We do not see a need to add any additional monitoring, recordkeeping and reporting requirements for synthetic minor sources as the existing requirements in the general permits are sufficient to ensure sources' emissions will remain below major source levels.

Two commenters requested clarification on the proposed FIP or permit by rule considered in the Advance Notice of Proposed Rulemaking.39 The commenters noted that it is not clear whether the draft engines general permits cover engines located at oil and natural gas production facilities. The EPA recognizes that it was unclear at the time of proposal whether the draft permits would apply to engines located at oil and natural gas production facilities. The final engines general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP following consideration of comments received on the proposed FIP.40 Only new sources or modifications consisting of one or more non-emergency engines that are not located in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector are eligible to apply for coverage under the spark ignition and/or compression ignition stationary engines general permits. Engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector have been addressed in the separate, final rulemaking.41

One commenter representing oil and natural gas sector interests expressed a preference for a permit by rule mechanism for compression ignition and spark ignition engines in lieu of a general permit, and recommended that the EPA consider, as an example, the permit by rule in the Texas Administrative Code, Title 30, Part 1, Chapter 106, Subchapter A, Rule section 106.4, coupled with the engine-specific Permits by Rule 106.511 and 106.512. The commenter stated that a permit by rule allows sources the flexibility to install and operate engines without delays arising from review and approval by permitting authorities. The commenter also pointed out that a primary advantage of implementing a permit by rule or FIP would be that a new federal decision triggering the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) would not be made each time a source avails itself of the permit by rule or FIP. Regarding the use of a permit by rule or FIP for compression ignition and spark ignition engines, the EPA did not propose the use of these permitting mechanisms in the proposed rule and does not consider their use appropriate at this time. Thus, we did not seek comment on their use at the time of proposal. Furthermore, the draft permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector. The EPA has issued a separate, final rulemaking addressing oil and natural gas production sources, including non-emergency engines located at such sources.42

One commenter noted that the preamble description of “graphic arts” does not match the description in the draft general permit and that the draft general permit does not include screen printing and manual and sheet-fed techniques. The EPA has corrected the discrepancy and modified the final questionnaire and Request for Coverage Form to clarify that the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” applies to sheet-fed printing operations.

One commenter recommended that all solvent cleaning operations (except batch loaded cold cleaners) comply with emission standards similar to SCAQMD Rule 1171. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements. We have determined that the additional limits and work practice standards not already included in the draft permit should only be added to the requirements for Serious and above ozone nonattainment areas. As a result, we are revising requirements in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to include additional emission limits and work practice standards consistent with SCAQMD Rule 1171 that apply only in Serious and above ozone nonattainment areas.

One commenter noted that the term “reasonable time” in Condition 9 of the draft permit is subjective and not easily enforceable, and requested a specific timeframe. The EPA agrees with the commenter and replaced “reasonable time” with “30 days unless another timeframe is specified by the EPA” in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.” We have made this change in all of the final permits included in this action.

One commenter recommended that the volatile organic compound (VOC) limits in Condition 17 of the draft general permit for graphic arts and printing operations be changed to grams per liter (g/L) of ink/coating/adhesive less water and exempt compounds. The EPA agrees with the recommendation that the coating content limits in Condition 17 should also be provided in g/L and has added VOC content limits measured in g/L. We also agree with the recommendation that the coating content limits be on an “as applied” basis, excluding water, and have modified the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country,” accordingly. In response to the same comment, we have also added a definition for VOC to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify the compounds not included when considering VOC.

One commenter stated that Serious and above ozone nonattainment area VOC limits for inks, coatings and adhesives should be limited, measured and reported in g/L or pounds/gallon (lbs/gal), excluding water and any other compounds exempted by the permitting authority or the local/neighboring air district. The same commenter recommended for all areas that the proposed percent alcohol or percent alcohol substitute limits in Condition 18 of the draft general permit be converted to an equivalent VOC content limit in g/L, as applied, including water and exempt compounds. The same commenter requested that if the standards for fountain solution are changed to VOC content rather than percent alcohol or alcohol substitute, then the log required in Condition 31 of the draft general permit should reflect: (1) The units (e.g., g/L or lbs/gal, as applied, including water and exempt compounds) of the fountain solution standards; (2) the units (e.g., g/L or lbs/gal, as applied, less water and exempt compounds) of the VOC limits for the coating, ink or adhesive; and (3) the units (e.g., g/L or lbs/gal, as applied, less water and exempt compounds) of the VOC limits. The commenter also recommended that the VOC limits in Attachment C for all materials except fountain solution should be g/L or lbs/gal, less water and less exempt compounds, and that the VOC limits for fountain solution should be converted to an equivalent VOC content limit in g/L, as applied, including water and exempt compounds.

The EPA generally agrees with the commenters and has made corresponding changes to the final permit conditions. The EPA agrees with the recommendation that the nonattainment area VOC ink, coating, and adhesive content limits should also be provided in g/L and lbs/gal, which is how we presented the draft VOC content limits for nonattainment areas in the draft permit. We have retained the VOC limits provided in g/L and lbs/gal in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.” We also agree with the recommendation that the coating content limits should be on an “as applied” basis, excluding water and other compounds. We have added a definition for VOC to the final permit to clarify the compounds not included when considering VOC. We have also made corresponding changes to the recordkeeping requirements, as appropriate.

One commenter requested that the EPA clarify Condition 21 of the draft general permit to apply only to flexible packaging printing operations. In the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country,” the EPA agrees with the commenter and we have revised the heading for the draft condition that reads “Exemption for Non-compliant Materials” to a new heading, “Exemption for Flexible Packaging Printing Operations,” to clarify that the non-compliant materials exemption is only applicable for flexible packaging printing.

One commenter requested that the frequency of monitoring of the usage of all VOC-containing material (Condition 27 of the draft general permit) be changed from a weekly basis to a daily basis. The EPA agrees with this recommendation as it relates to certain nonattainment areas and we are, accordingly, revising the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to include a requirement for daily monitoring of VOC usage for Serious and above ozone nonattainment areas. The EPA has concluded that a greater level of monitoring is necessary: (1) To protect air quality in areas that are designated as Serious and above ozone nonattainment; and (2) to ensure a consistent set of requirements across state and tribal areas in common airsheds.

One commenter requested that the EPA add requirements for performance testing at facilities with air pollution control equipment to verify the overall VOC control efficiency and to quantify the NOX emissions from any air pollution control equipment (e.g., oxidizers). The EPA agrees with the commenter and has added testing requirements for potential add-on control equipment. (The option for owners or operators to rely on add-on control devices for compliance was added to the permit in response to another comment.) For each add-on control system used at a graphic arts and printing operation source, the source must conduct an initial performance test within certain timeframes to verify compliance with the add-on control standards according to a test plan submitted to the Reviewing Authority. The testing is to determine the capture/control efficiency of the emission control system. The source must also conduct subsequent performance tests every five years.

One commenter requested that the monthly record requirements in Conditions 31 through 33 of the draft general permit be clarified to specify calendar-monthly records. Although the EPA intended that records be kept on a calendar-monthly basis, we recognize that the draft permit was unclear. We are, therefore, revising the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify that the recordkeeping requirements are to be kept on a calendar-monthly basis. This means under the final permit each source must update a log of their usage of VOC-containing material and report that usage on a calendar-monthly basis.

One commenter requested that if requirements to conduct additional performance tests are added to the general permit, the EPA should include a requirement for recording the results of each performance test. The EPA agrees that the results of all performance tests should be recorded and the records maintained. As a result, in authorizing the use of add-on controls, we included recordkeeping and reporting requirements for specified performance testing for add-on control equipment.

One commenter recommended that the definition of “coldset” be modified to clarify that coldset printing operations include presses with infrared or other energy curing devices such as ultraviolet dryers. The same commenter recommended that the definition of “heatset” be modified to clarify that coldset printing operations do not include presses with infrared or other energy curing devices such as ultraviolet dryers. The EPA has reviewed these definitions and agrees that the language suggested by the commenter provides additional clarifications that can help facilitate a better understanding of the permit's requirements. We have revised the definitions, accordingly, to add the commenter's suggested language.

One commenter recommended that the definition of “offset lithographic and letterpress printing operation” be modified to be consistent with SCAQMD Rule 1130. The EPA has reviewed this definition and agrees with the language suggested by the commenter because the change provides additional clarification that can help facilitate understanding of the permit's requirements. We have revised the definition accordingly.

One commenter recommended that the EPA add a definition for “exempt compounds,” including compounds in the jurisdiction of neighboring air districts to Indian country (SCAQMD Rule 102). The EPA agrees that the definition of VOCs provided in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” (that was not provided in the draft permit) should identify “exempt compounds.” We have revised the ink/coating content limits to regulate on an “as applied” basis, excluding water. We have also added a definition for VOC to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify which compounds are not included when considering VOC. However, in lieu of referencing the exempt compounds in SCAQMD Rule 102, the definition references the list of exempt compounds in 40 CFR 51.100(s)(1), which we have determined to be more generally applicable to sources in Indian country.

One commenter recommended that the EPA include a definition for “fountain solution” and provided a suggestion. The EPA agrees that including such a definition will improve the rule's efficacy and enforceability and agrees that the commenter's proposed definition is appropriate. As a result, we have added the suggested definition for “fountain solution” to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.”

One commenter recommended that the EPA include a definition for “grams of VOC per liter of coating (or ink or adhesive), less water and less exempt compounds.” The commenter provided the EPA with a calculation method for VOC content per liter of coating used. The EPA agrees that the information suggested by the commenter will improve the permit's efficacy. We have, therefore, added the information to the Sample Calculations section of the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.”

One commenter recommended that the sample calculations in Attachment D of the general permit should include more representative values for heatset lithographic ink. The commenter also noted a typographical error for the VOC retention factor for heatset lithographic ink, which should be listed as 20 percent instead of 30 percent. In addition, the EPA acknowledges that the sample calculations in Attachment D of the permit should reflect more representative values for heatset lithographic inks because it is intended to provide “real world” values. We have modified Attachment D to include more representative values and to correct the erroneous VOC retention factor.

One commenter requested that the EPA add language to clarify that these are uncontrolled VOC emissions. The commenter referenced language in the preamble which indicates that printing presses “would need to be able to demonstrate compliance with the permit (25 tpy VOC) without the consideration of controls.” The same commenter requested that the EPA add language to clarify what equipment “all printing lines” includes (i.e., combustion emissions from gas-fired equipment, air pollution control equipment, internal combustion engines, pre-press operations, or other non-printing related VOC-emitting operations performed). The EPA agrees with the commenter's suggestion of clarifying the permit language. We have done so by clarifying that compliance with the following condition must not consider the reduction in emissions from any add-on control technology: “The permittee shall not allow volatile organic compound (VOC) emissions from an individual printing press (printing line) to exceed 25 tons per year.” The EPA also agrees with the commenter that the equipment included in all printing lines should be identified in the permit. The permit has been revised accordingly.

Two commenters supported the proposal to increase the stringency of the overall tpy emission limitations for all printing lines at a facility based on the increasing classification of the ozone nonattainment area designation. Another commenter asserted that, for nonattainment areas, the EPA should require the most stringent emissions limitation or installation of BACT based on requirements of the neighboring air district, regardless of the facility's PTE or throughput. The commenter argued that emissions generated in these areas would have an effect on the neighboring district's air quality.

The EPA has determined that the VOC content limits in the draft general permit for graphic arts and printing operations effectively limit VOC emissions in nonattainment areas and are consistent with the BACT requirements suggested by the commenter. However, we are also adding add-on control requirements for this source category as an option for complying with the VOC content limits contained in the draft permit. This option provides owners and operators the flexibility to use non-compliant materials, while also protecting air quality. Finally, we note that the EPA has the authority to determine that a particular general permit is no longer sufficient to protect air quality for new or modified sources in a geographic area and, therefore, does not meet the requirements of the Federal Indian Country Minor NSR rule. Such a determination would, for example, consider local air quality conditions, typical control technology and other emission reduction measures used by similar sources in surrounding areas, anticipated economic growth of the area, and/or cost-effective emission reduction alternatives.

One commenter argued that facilities utilizing fuel combustion heating units (e.g., ovens, dryers, oxidizers) in Serious and above ozone nonattainment areas should use only natural gas as their primary fuel for heatset printing presses (non-electric heated), and that the NOX emissions from heatset printing presses should not exceed 30 parts per million, volumetric dry, corrected to 3 percent oxygen. The same commenter requested that if NOX concentration limits are added to the emissions limits and standards for gas-fired dryers/ovens on heatset printing presses, the EPA should consider adding requirements for performance tests to be conducted on heatset printing press ovens with gas-fired burners to demonstrate compliance. The EPA has considered the commenter's recommendations and has included the requirements proposed by the commenter into the requirements for ozone nonattainment areas in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.” The EPA has concluded that in ozone nonattainment areas a greater level of control is required to protect air quality. Thus, the requirements, which would reduce levels of NOX from combustion sources, are appropriate for these areas. Therefore, we have added an overall capacity limit for combustion units, excluding engines, that applies to all areas, attainment and nonattainment. The more stringent provisions recommended by the commenter will apply only to Severe and Extreme ozone nonattainment areas because they are necessary to ensure that the permit provides adequate air quality protection. We have not required the more stringent provisions in Serious ozone nonattainment areas because we do not believe that in those areas the extra control is necessary to protect air quality. We have also revised the permit to reflect associated monitoring and recordkeeping requirements.

One commenter stated that in nonattainment areas, all facilities should vent ovens to air pollution control equipment with a minimum 95 percent overall VOC control efficiency. The commenter requested that the EPA clarify that in an Extreme ozone nonattainment area (the South Coast and San Joaquin Valley Air Basins), the major source threshold for VOC is 10 tpy. The commenter referenced the SCAQMD BACT for PM and VOC emissions from a heatset lithographic printing press, which requires venting the press oven to air pollution control equipment with a minimum 95 percent overall VOC control efficiency. The commenter noted that the facility VOC emission threshold for a general permit can be as low as 7 tpy from all printing lines combined; however, all heatset lithographic printing press ovens should be vented to air pollution control equipment with a minimum 95 percent overall VOC control efficiency. The EPA has included the requirements proposed by the commenter in the requirements of the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to allow sources the flexibility to use add-on control requirements as an alternative to the VOC content limits in the permit. In addition, we are making the add-on control requirement mandatory in Extreme ozone nonattainment areas. Furthermore, we have determined that provisions similar to those in the SCAQMD requirements identified by the commenter are appropriate to include because the only Extreme ozone nonattainment areas in Indian country are located in California. In addition, we are also clarifying that in ozone nonattainment areas, new or modified sources must obtain a permit for VOC emissions increases of 2 tpy or more. Sources in Extreme ozone nonattainment areas emitting above 7 tpy are not eligible for the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” and must obtain a source-specific permit prior to beginning construction.

One commenter recommended, for nonattainment areas, that all solvent cleaning operations (excluding batch loaded cold cleaners) should comply with lower emission standards. The commenter requested that the EPA consider the standards in SCAQMD Rule 1171. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements for Serious and above ozone nonattainment areas and concluded that the requirements in SCAQMD Rule 1171 are appropriate for inclusion in the final permit generally because they are necessary to ensure consistency (and, thus, a more level playing field) with requirements in neighboring areas under local requirements. The EPA has, therefore, included the emission standards and specific work practice standards in Rule 1171 referenced by the commenter as requirements in the final permit for sources in nonattainment areas.

One commenter recommended that, at graphic arts and printing operations in nonattainment areas, compression ignition emergency engines should comply with NSPS 40 CFR part 60, subpart IIII, and NESHAP 40 CFR part 63, subpart ZZZZ. The commenter also recommended additional limits on operating hours of up to 50 hours per year for maintenance and testing and 200 hours per year total operation for nonattainment areas. The EPA disagrees with the commenter that compression ignition emergency engines at graphic arts and printing operations in nonattainment areas should meet limits on operating hours in addition to complying with 40 CFR part 60, subpart IIII, and 40 CFR part 63, subpart ZZZZ. Additional operating limits are unnecessary and would conflict with the requirements of the NSPS and NESHAP, which would create an additional, unjustified reporting burden for sources. However, we do agree that in nonattainment areas, emergency engines that are not otherwise exempt from the Federal Indian Country Minor NSR Program should be certified to the EPA's standards in 40 CFR part 60, subpart IIII. The final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” has been revised, accordingly.

One commenter stated that prohibiting open burning (Condition 16 in the draft sawmill facilities general permit) conflicts with the FARR open burning rule (40 CFR 49.131). The EPA notes that the condition in the draft general permit only bans open burning at sawmills. It is not intended to prohibit open burning of all kinds, but was included to prevent operators of sawmill facilities from burning waste or other disposed materials on the property of the mill. It does not prohibit open burning at locations other than sawmill facilities and, thus, is consistent with the FARR in that regard. The EPA does not believe that there is a conflict. However, disposal of any waste from sawmill facility activity must be handled in accordance with applicable requirements in all tribal, local and federal regulations and statutes.

One commenter objected to Condition 11 in the draft sawmill facilities general permit, stating that it is not necessary to label emission units and air pollution control equipment with identification numbers, and that serial numbers or the location of the unit should suffice. The EPA believes that the identification and labeling of emission units and air pollution equipment is needed to facilitate identification of equipment covered under the general permit by inspectors. Therefore, we are finalizing the labeling requirements included in the draft permit. It is worth noting that this requirement is consistent with all of the other permits in this final action and in the final action that we finalized in May 2015.43

One commenter stated that the pollution control requirements in Conditions 24 to 26 of the draft sawmill facilities general permit are too specific. The EPA disagrees. Specific permit conditions are necessary in order to ensure that the conditions in the general permit are enforceable. No changes have been made to the permit conditions in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” as a result of this comment.

One commenter noted that if a planar mill does not have a baghouse or fabric filter, per Condition 24 of the draft sawmill facilities general permit, they would be required to obtain a source-specific permit. The same commenter stated that, per Condition 25 of the draft general permit, sawmill facilities with uncovered outdoor operations, or with covered operations that do not have a baghouse or fabric filter, would need to obtain a source-specific permit. The same commenter also stated that, per Condition 26 of the draft general permit, sawmill facility operations that are indoors without a baghouse or fabric filter would be required to get a source-specific permit. In all three cases, the EPA agrees and has determined that the use of a baghouse or fabric filter is a reasonable and readily available technology for new or modified sources indoors and covered facilities outdoors. Sources that cannot, or do not wish to, install a baghouse or fabric filter must seek a source-specific permit.

One commenter objected to weekly visible emissions surveys (Conditions 33 and 34 of the draft sawmill facilities general permit). The commenter argued that weekly surveys would be burdensome, especially compared to Title V sawmill facilities that have a quarterly survey frequency. The EPA disagrees with the commenter that weekly visible emission surveys are overly burdensome. They are not resource-intensive to accomplish using Method 22,44 as specified in the draft permit (versus the Method 9 45 opacity test, which requires certified observers). The fact that there may be some Title V permits for sawmills that only require quarterly surveys does not mean that quarterly monitoring is appropriate for sources wishing to operate pursuant to the general permit. The general permits developed by the EPA have consistently used weekly surveys for monitoring opacity and fugitive emissions. Frequent monitoring of equipment is necessary to ensure a source is in compliance at all times. No changes have been made to the conditions of the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” as a result of this comment.

One commenter pointed out that Condition 35 of the draft sawmill facilities general permit, which requires an initial performance test for fugitive emissions, references Condition 17 of the draft sawmill facilities general permit, which applies to emissions units and not sources of fugitive emissions. The EPA has corrected the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” which inadvertently applied only to affected emission units. We have modified the final permit to also require that sources of fugitive emissions not discharge into the atmosphere any gases that exhibit 20 percent opacity or greater averaged over any consecutive 6-minute period. These changes correct the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” which requires an initial performance test to verify compliance with its opacity limitations.

One commenter stated that the testing requirements in Condition 37 of the draft sawmill facilities general permit for emergency engines are excessive, especially for older engines. The EPA disagrees with the commenter that the testing requirements for emergency engines are excessive. The requirements in the permit only apply to engines that have not been certified to the applicable standards in the permit. The testing requirements are necessary to ensure that uncertified engines under the permit comply with applicable limits in the permit.

One commenter recommended revising Condition 40.b. of the draft sawmill facilities general permit to read: “For each kiln, monthly throughput `by species' in Mbf.” The EPA agrees with the commenter's recommendation, which clarifies that records must be kept that reflect the monthly throughput of the individual tree species because different species release differing amounts of VOC. We have modified the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” accordingly.

One commenter pointed out a circular reference in Condition 50.c. of the draft sawmill facilities general permit. The commenter is correct that Condition 50.c. in the draft general permit inadvertently contained a circular reference. We have modified the “Annual Reports” Condition in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to refer correctly to the “Deviation Reports” Condition.

One commenter noted that, in the request for coverage for the draft sawmill facilities general permit, when the answer to a question would invalidate the use of a general permit, the instructions sometimes direct the applicant to contact the permitting authority for a source-specific permit. However, in other instances the instructions do not tell the applicant that they do not qualify for the general permit. The EPA acknowledges that not all of the questions on the Request for Coverage Form include a directive to contact the permitting authority for a source-specific permit based on a particular answer. This directive was only included for questions for which a specific “yes” or “no” answer would result in permittees not qualifying for the sawmill facilities general permit. In the case of Question 19 in the draft Request for Coverage Form, which was identified by the commenter as an example, the question requests the distance of the facility from the nearest property boundary or nearest residence. Because we are not finalizing setback requirements for sawmill facilities, this question has been removed from the Request for Coverage Form; therefore, the commenter's concern regarding this particular question is moot.

In the July 17, 2014, proposed rule, we proposed two types of minor NSR preconstruction permits to help streamline permitting of true minor sources that construct or modify in Indian country and that belong to one of six additional source categories. The first type of permit is a general permit and the second type is a permit by rule. As our preferred approach, we made available draft general permits for the six source categories. As an alternative, for graphic arts and printing operations, we requested comment on whether, in lieu of establishing a general permit for the source category, we should instead adopt a permit by rule.

We requested comment on all aspects of a draft general permit or proposed permit by rule for graphic arts and printing operations. We noted that we might not finalize the draft general permit for graphic arts and printing operations, if we finalized a permit by rule for the source category. Alternatively, we indicated that we might opt to finalize both permitting mechanisms for the source category, and might tailor one of the permitting mechanisms to provide authorization to construct or modify true minor sources (i.e., permit by rule) and another to provide enforceable limitations to create synthetic minor sources (i.e., general permit). We specifically requested comment on this “hybrid” approach.

In the proposal, we sought comments on all aspects of the draft implementation tools we provided (e.g., general permit Request for Coverage Form). The draft general permit application for graphic arts and printing operations is more streamlined because sources in the category represent more straightforward operations, largely involve one air pollutant (i.e., VOCs) and, therefore, could necessitate less intensive review for approval. The draft general permit application form for the category asks for basic solvent usage information and whether the source has complied or will comply with relevant requirements. By contrast, the draft general permit applications for concrete batch plants, engines, boilers and sawmill facilities request more detailed technical information about the proposed facility in question because these facilities are more complex and can involve multiple operations and pollutants. The draft form was also intended to serve as a Notification of Coverage Form for sources seeking coverage under a permit by rule, should we have decided to issue one for this category.

With respect to comments on the appropriateness of utilizing a permit by rule for graphic arts and printing operations, responses are addressed here and in Section 2.0 of the RTC Document. Overall, as a result of the comments received on the proposal and our continued evaluation of the circumstances, we are issuing only a general permit for graphic arts and printing operations. Three commenters provided comments regarding the EPA's proposal to establish a permit by rule for graphic arts and printing operations. One commenter agreed that the approach could provide significant time savings due to its streamlined approach. However, two commenters were concerned that a permit by rule approach does not provide the public, including Indian tribes, the opportunity to comment on a minor source's use of the permit. Another commenter disagreed that a permit by rule is consistent with the Federal Indian Country Minor NSR rule, which requires preconstruction permits. The commenter asserted that use of a permit by rule would effectively mean that sources exceeding the minor source permit threshold are effectively exempt from permitting. One commenter argued that the use of a permit by rule on tribal lands is not appropriate for either true minor or synthetic minor sources. Two commenters requested that the EPA provide either a notice and comment period or a consultation process for tribes for the permit by rule approach, citing that tribes must be given an opportunity to comment to recognize their sovereignty. For these reasons, the commenters supported only a general permit approach.

The EPA is not finalizing a permit by rule, either in lieu of or in conjunction with a general permit, for the graphic arts and printing operations source category for two reasons. First, many sources in this source category are major sources and require synthetic minor source permits in order to gain minor source status. While some of these sources may be true minor sources, the potential variation in size of individual sources warrants including a mechanism for creating synthetic minor sources. The permit by rule is not a mechanism that can be used to create synthetic minor sources; the general permit is a mechanism that can create synthetic minor sources, as it affords the opportunity for the Reviewing Authority to perform a review. The EPA established this approach when we finalized the first set of general permits and permits by rule in May 2015.46 Thus, a general permit is more appropriate for this source category. Second, we agree with commenters that the permit by rule approach does not provide the public, including Indian tribes, the opportunity to comment about a minor source's use of the permit. We are, therefore, finalizing a general permit for this source category, which is an approach that affords the public an opportunity to object to a source gaining coverage under the permit pursuant to 40 CFR 49.157(a)(5).

The EPA disagrees with the commenter that the use of permits by rule effectively means that sources exceeding the minor source permit threshold are exempt from a permit. We also disagree that the permits by rule are not consistent with the concept of preconstruction permits in the Federal Indian Country Minor NSR rule. A permit by rule establishes a standard set of requirements that must be met by any source commencing construction in reliance on that permit and, thus, serves the same purpose as any other preconstruction permit. The primary difference between a permit by rule and a general permit is procedural, not substantive. As to consistency with the concept of preconstruction permits in the Federal Indian Country Minor NSR rule, the rule specifically authorizes the issuance of the general permits and the permits by rule we have issued thus far.47

With respect to comments on finalizing both permitting mechanisms for graphic arts and printing operations, we include responses here and in Section 7.0 of the RTC Document. As noted, we have decided to finalize only a general permit for graphic arts and printing operations, rather than to make both permit types available for the graphic arts and printing operations source category. We are not finalizing the proposed “hybrid” approach for graphic arts and printing operations because the EPA does not believe that sources in the source category are appropriate candidates for permits by rule, particularly since some of them may be major sources seeking synthetic minor status. Furthermore, we believe that having two permit types would add additional complication to administration of the rule with little, if any, apparent benefit. We are not adopting such a hybrid approach.

Finally, the EPA did not receive any comments on the issue of using a streamlined general permit/permit by rule application for graphic arts and printing operations. However, because this permit will serve as a general permit for true minor and synthetic minor sources, we are enhancing the application to request additional details about equipment present at the site. Since applicant sources could potentially be major sources seeking minor source status, we need to ensure that we have sufficient information to be able to make an approval review decision.

In the July 17, 2014, proposed rule, we proposed to change the Federal Indian Country Minor NSR rule at 40 CFR 49.156(e)(4) to shorten the general permit application review process from 90 to 45 days for one source category: Graphic arts and printing operations.

This section provides a brief summary of other significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 8.0 of the RTC Document.

Two commenters supported the proposal to amend 40 CFR 49.156(e)(4) to shorten the review period to 45 days for the graphic arts and printing operations permit. Conversely, one commenter recommended not reducing the review period since the EPA requires time to: (1) Review the material safety data sheets of graphic arts materials used; (2) review the specifications on gas-fired burners on heatset printing presses and oxidizers; and (3) evaluate internal combustion engines for compliance with NSPS and NESHAP requirements. We agree with the commenter that this source category requires a 90-day review period, particularly since the general permit is also serving as a permit to create synthetic minor sources. Consequently, the EPA is not finalizing revisions to § 49.156(e)(4) to shorten the general permit application review process from 90 to 45 days for the graphic arts and printing operations source category.

In the proposal, we requested comment on various aspects of the EPA's conclusion following its control technology review that, because the control measures in the draft general permits are currently used by other similar sources in other areas of the country, the measures in the draft permits are technically and economically feasible and cost effective.

This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 3.0 of the RTC Document. The EPA is largely retaining the basic approach to the control technology review outlined in the July 17, 2014, proposal.

One commenter expressed confusion over the term “control technology.” The commenter requested the EPA clarify if this refers to add-on controls or if it includes controls that may be part of the equipment itself. In response, we note that the term “control technology” refers to integrated controls, add-on controls and other emissions reduction techniques (e.g., work practice standards and the use of compliant materials).

One commenter stated that because the EPA intends to issue general permits at the national level instead of through Regional Administrators, the Agency should require the most stringent requirements applicable in adjacent areas of Indian country. The commenter recommended that the general permits require the use of BACT and the most current version of adjacent area rules and regulations to avoid a competitive disadvantage. The commenter also noted that the EPA may wish to consider making general permits applicable only within one of the EPA Regions, in order to avoid making sources in Indian country subject to more stringent requirements than those in adjacent states.

Regarding the level at which the EPA issues general permits, the commenter is correct that all of the general permits that the EPA has established to date (including this set) have been at the national level. However, we may in the future issue general permits (or permits by rule) on a smaller geographic scale for a particular state or region of the country. In fact, in the first batch of streamlined permits we issued, we indicated that EPA Region 9 will be developing a general permit or permit by rule for areas within California for gasoline dispensing facilities.48 In addition, once the EPA issues a general permit at the national level, Regional offices serving as the Reviewing Authority are responsible for processing the Request for Coverage and issuing the Approval of Request for Coverage under nationally-issued general permits (as well as any general permits issued by that Region for a smaller geographic area), Alternatively, a tribe may serve as the Reviewing Authority for its area of Indian country by taking delegation of responsibility for implementing the permit program.

Regarding other points made by the commenter, the EPA crafted the minor source general permits to ensure air quality is properly protected and to provide a streamlined approach, where appropriate. We undertook a survey of existing national and state requirements, and reviewed, weighed and compared these requirements to develop general permits that would help provide a level playing field for minor sources in Indian country. The EPA has not necessarily adopted the most stringent of these observed standards, but, rather, has evaluated relevant rules and regulations to determine the most appropriate and commonly employed standards for each source and unit type covered under the Federal Indian Country Minor NSR rule. The EPA has the authority to determine that a particular general permit or permit by rule is no longer sufficient to protect air quality for new or modified sources in a particular geographic area and, thus, does not meet the requirements of the Federal Indian Country Minor NSR rule. Such a determination would consider, for example, local air quality conditions, typical control technology of other emission reduction measures used by similar sources in surrounding areas, anticipated economic growth in the area and/or cost-effective emission reduction alternatives. If the EPA were to make such a determination, it could either issue a revised general permit for use in that area or require sources in that area to obtain source-specific permits. In addition, the EPA Regional Administrators may adopt general permits or permits by rule that apply within those areas.

For the draft general permits for boilers, concrete batch plants, engines, and sawmill facilities, we included permit provisions related to the location of emitting activities relative to the source property boundary. We call these provisions, which are designed to minimize the impacts of emissions, setback requirements. Under a setback requirement, sources may not locate or expand within a specific distance from the property boundary and nearest residences. We proposed that these provisions seemed both reasonable and prudent measures to protect local air quality, and are economically feasible and cost effective.

This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 4.0 of the RTC Document.

Two commenters supported the inclusion of setback requirements for boilers, concrete batch plants, spark and compression ignition engines, and sawmill facilities. These commenters requested that the EPA not only apply the setback requirements to schools and nursing homes, but also to other physical locations such as community centers, health care facilities, hospitals, agricultural fields, ball fields, parks, locations designated for cultural and subsistence activities, and waterways. The same commenters requested that the EPA carefully consider each tribe's sovereign right to manage and oversee land use within its own boundaries. The commenters noted that some tribes may not provide for setback requirements where others may already have setback requirements that are less restrictive than those in the draft permits. The commenters recommended that the EPA consult and communicate with tribes on the application of setback requirements and that the EPA insert a provision in the general permits allowing a tribe to obtain a partial or full waiver from the requirements (e.g., from the types of buildings to which the requirements apply).

Two commenters objected to the inclusion of setback requirements in the stationary compression ignition and spark ignition engines general permits. The commenters argued that the EPA has not demonstrated the need for or provided any data to support setback requirements and that no current NSPS or NESHAP for engines includes similar requirements. The commenters further argued that setting distances to property boundaries is counter to, and conflicts with, federal and state agency requirements for land management and parks and wildlife preserves created to minimize surface disturbance and encroachment on endangered species areas. One commenter noted that specific setback requirements are already included in Indian mineral leases. Another commenter urged that setback regulations have historically been considered “land use” regulation relegated to state and local jurisdictions. The commenters stated that establishing a setback requirement that applies to all of Indian country would create jurisdictional conflicts. The commenter further warned that the EPA would be setting precedent that could cause other regulatory agencies to follow suit.

One commenter did not support the use of physical markers on a property to show compliance with the setback requirements.

Due to the lack of an EPA analysis demonstrating the air quality benefits of requiring setbacks, we lack sufficient information to incorporate them in the final general permits for boilers and emergency engines, concrete batch plants, spark and compression ignition engines, and sawmill facilities. Therefore, the final general permits for these source categories do not contain setback provisions. Nonetheless, the Reviewing Authority retains the discretion to deny the granting of source coverage under the general permits for any source category based on local air quality concerns.

The ESA requires federal agencies to ensure, in consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service (the Services), that any action they authorize, fund, or carry out will not likely jeopardize the continued existence of any listed threatened or endangered species, or destroy or adversely modify the designated critical habitat of such species. The NHPA requires federal agencies to take into account the effects of their undertakings on historic properties—i.e., properties that are either listed on, or eligible for listing on, the National Register of Historic Places—and to provide the Advisory Council on Historic Preservation (the Council) a reasonable opportunity to comment on such undertakings. We provided draft screening processes in Appendices to the draft Request for Coverage Forms for the draft general permits that we made available for comment to ensure appropriate consideration of listed species and historic properties.

This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 5.0 of the RTC Document. Overall, as a result of the comments we received, we are largely retaining the processes we presented in the proposal with some adjustment in this final action.

Two commenters expressed concerns regarding provisions for listed species and historic properties. One commenter contended that the Bureau of Land Management (BLM) and the Bureau of Indian Affairs (BIA) currently develop a resource management plan for oil and gas activities on Indian lands that triggers ESA and NHPA review. The commenter argued that it is unnecessary to repeat an ESA or NHPA review during the general permit process given that it may rely on this existing review. The commenter further asserted that the proposed provisions would require minor source permit applicants to interface with various federal agencies in the absence of any procedures governing that interaction, and that the legal consequences of certifying compliance with the ESA and NHPA are undefined.

The EPA is aware that new sources locating in Indian country may also need approvals or other authorizations from other federal agencies such as the BIA or the BLM, which may trigger a review under the ESA and/or the NHPA. Such approvals or authorizations by other agencies are, however, separate from the authorization provided in the EPA's minor NSR general permits. However, to avoid duplication of effort, we believe it is appropriate for facilities seeking to be covered under the general permits to use listed species and historic property assessments, analyses, and outcomes obtained through BIA/BLM's separate compliance with the ESA and NHPA in connection with their own actions to satisfy the relevant screening procedures for coverage under the minor NSR general permits. We anticipate that where a separate ESA or NHPA compliance process is undertaken by BIA/BLM in connection with a new source, that process will satisfy the EPA's permit screening procedures.

Therefore, we have modified the listed species procedures in appendix A for endangered and threatened species that are attached to the Request for Coverage Forms to clarify that this approach is the first consideration in the screening process. We believe that this option as a first choice is already clear in the historic property screening procedures and, therefore, we have not revised appendix B in that regard in the historic properties procedures included with the Request for Coverage Forms.

One commenter expressed concerns about the ability of permit applicants to meet the compliance requirements of the ESA and NHPA, citing limitations in time and availability of in-house expertise. The commenter asserted that the process could be costly and requested whether the EPA has assessed the time and cost impacts to comply with the ESA and NHPA. The EPA understands that satisfactorily addressing the screening procedures for threatened and endangered species and historic properties will impose some burden on sources seeking coverage under general permits. However, we have attempted to streamline the screening processes in order to minimize the effort needed to complete them. For example, both sets of procedures have been clarified to make more explicit that sources can, as appropriate, rely on prior assessments performed by other federal agencies to satisfy the procedures.

The Federal Indian Country Minor NSR rule requires the Reviewing Authority to establish annual allowable emission limitations for each affected emissions unit and for each NSR-regulated pollutant emitted by the unit, if the unit is issued an enforceable limitation lower than the PTE of that unit (see 40 CFR 49.155(a)(2)). The EPA included throughput, fuel usage, and materials usage limitations and compliance monitoring requirements in the draft general permits and proposed permit by rule as a means for limiting emissions and demonstrating compliance with those limits.

For the six source categories in this action, some states (but not all) provide both annual tpy allowable emission limitations and throughput limits in their general permits. Other states provide only overall production limits that limit the amount of throughput a facility can process over a period of time. We requested comment on the use of throughput limits as a surrogate for tpy allowable emission limitations, or, alternatively, establishment of annual allowable emission limitations for each pollutant, and the use of throughput limits as surrogate monitoring measures to demonstrate compliance with tpy annual allowable emission limitations.

This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 6.0 of the RTC Document. In the final general permits, the EPA has retained the throughput limits contained in the draft general permits, except that we have revised the limits in the final general permits for boilers and emergency engines, spark ignition engines, compression ignition engines and sawmill facilities. This has included adding control options and fuel-based limits to accommodate synthetic minor sources.

Two commenters supported the use of throughput production limits as a surrogate for annual tpy emission limits in the draft concrete batch plants general permit. The commenters declared that facilities currently track information about the material they process, and that complying with a throughput limitation would be less costly. One commenter stated that the proposed rule does not provide for different production limits for facilities located in attainment and nonattainment areas for PM, and requested that the EPA consider this issue more closely.

The EPA appreciates the commenters' support for the use of throughput limits. The EPA also appreciates the commenters' concern regarding separate production limits for PM10 and PM2.5 nonattainment areas. We set the throughput limit in the draft concrete batch plants general permit to ensure that a source in any area (attainment or nonattainment) would not be a major source.

For the draft boilers general permit, two commenters supported the use of varying capacity limits as a surrogate for annual tpy emission limits based on boiler and process heater size. The commenters supported the use of different capacity limits for process heaters and process heaters and boilers combined located in ozone nonattainment areas. The commenters also supported finalizing two boilers general permits—one intended for smaller, simpler sources using capacity limits, and one for larger, more complex sources using tpy emission limitations and additional monitoring and recordkeeping. The EPA has decided to issue only one final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country,” which also covers emergency engines. We do not agree that two are needed. We believe that one permit for boilers can accommodate boilers of varying sizes.

Two commenters expressed concerns with the capacity limits included in the draft spark ignition engines general permit. The commenters noted an inconsistency between the engine site capacity limit of 1,750 hp and the emission limits set by reference to Table 1 of 40 CFR part 60, subpart JJJJ. One commenter provided the example that, using the EPA's PTE spreadsheet and a single 1,000 hp 4-stroke lean burn engine, the CO limit of 2.0 grams per hp-hour in Table 1 yields a total annual CO emission PTE of just under 20 tpy, which would allow for up to 5,000 hp site capacity based on a 100 tpy limit. The commenters stated that these issues bring into question whether the draft spark ignition and compression ignition engines permits should include capacity-based limits or emissions-based limits. Both commenters reasoned that emission limits are preferable to capacity limits, because an emission limit approach would allow flexibility for operators to determine how to configure engines. One commenter argued that if the EPA uses capacity limits, then it would seem pointless to also include emission limits or monitoring. The commenter stated that capacity limits are most appropriate for small engines to simplify exclusion from minor source NSR, stating that neither the draft spark ignition engines general permit nor the draft compression ignition engines general permit addressed excluding low emitting small engines. The commenter further argued that the upper limit used should actually be 250 tpy to avoid the PSD Program in attainment areas.

The EPA acknowledges that, in setting the capacity limits in the draft spark ignition engines general permit, the limit was based on the highest emission factor under the NSPS for the various engines types. We also acknowledge that there is significant variability in the emission factors for the different types of engines. Given the differences, we are revising the capacity limits to add a fuel-based capacity limit option for natural gas-fired spark ignition engines. In addition, the draft spark ignition engines general permit does not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector. The EPA has issued a separate, final rulemaking addressing oil and natural gas activities that includes requirements for non-emergency engines.49 Non-emergency spark ignition engines (and any additional emergency engines) located at sources that are not in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector are eligible for coverage under the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country.”

Regarding excluding small engines, we note that the Federal Indian Country Minor NSR rule exempts stationary internal combustion engines with a manufacturer's site-rated hp of less than 50. The EPA finalized this exemption during the development of the general permits.50 We have revised the permitting documents to reflect this exemption.

Regarding the use of emission limits versus capacity limits, we have retained the capacity limits but we have also added additional flexibility by allowing for the use of synthetic minor fuel limits in lieu of the engine capacity limits. This flexibility is close to the approach suggested by the commenter, as it allows for engines of greater capacity as long as overall fuel use remains below the specified threshold. We consider this approach the best option for the types of owners and operators that we expect to be subject to the permits—striking a balance between flexibility and ease of compliance. Sources needing even greater operational flexibility should consider applying for a source-specific permit. The general permits are intended for common, straightforward permitting actions.

Regarding the upper tpy emission limit used for setting the limits in the permit, we disagree with the commenter's suggestion of using 250 tpy. While the EPA will still determine when sources applying for a general permit need a source-specific permit due to air quality concerns, we do not believe that will occur as often as would be required if we used the upper threshold in attainment areas proposed by the commenter.

Two commenters supported the proposed approach for establishing capacity limits for compression ignition emergency and non-emergency engine sources that differentiate among locations in ozone attainment, unclassifiable, or Marginal/Moderate ozone nonattainment areas. The commenters requested that the EPA explain why the draft general permit for stationary spark ignition engines does not use a similar approach. One commenter stated that nonattainment minor source permitting should be regionally specific and based on emissions inventory evaluation and modeling to determine the requirements after a designation is made. The commenter declared that because no nonattainment designation has been made in any tribal land areas, it is premature to specify minor source permitting requirements. The EPA notes that the draft general permit for spark ignition engines does not need separate limits for sources in different types of ozone areas. The limiting pollutant—the pollutant with the highest emissions in setting the capacity limits—is CO. The established limits in the draft general permit are set low enough to ensure sources in ozone nonattainment areas will be below the major source thresholds, regardless of the area's classification. The final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” is not available in Serious CO nonattainment areas. Currently, there are no CO nonattainment areas.

Regarding the comment that nonattainment minor source permitting should be based on an emissions inventory evaluation and modeling, in this instance it is not necessary to develop an emissions inventory or perform ambient air modeling in order to establish minor source permits in attainment or nonattainment areas that are protective of air quality. The general permits in this action are intended to prevent the construction of sources that would interfere with attainment or maintenance of the NAAQS in attainment and nonattainment areas. However, some of the general permits in this action do not cover all potential nonattainment areas because, in order to protect air quality in such areas, we would have had to construct an overly stringent, potentially unworkable permit for such sources in such areas. A better alternative is to direct such sources to work with the Reviewing Authority to develop a more workable, source-specific permit. Moreover, the Reviewing Authority has the discretion under the Federal Indian Country Minor NSR rule to not grant coverage under a general permit to a particular source or in a particular area if there is a concern that the general permit will not be protective of air quality in the area.

Three commenters supported the EPA's draft emission limitations for sawmill facilities, including a limitation of 25 million board feet on a 12-month rolling basis and a total tpy VOC emission limitation that becomes more stringent based on the increasing classification of the ozone nonattainment area in which the facility is located. However, one commenter asserted that it was unlikely a sawmill facility would be a true minor NSR facility and approach 80 tpy VOC without triggering the major source threshold for HAPs (Condition 23 of the draft sawmill facilities general permit). Regarding the comment that a source may trigger the major source threshold for HAPs prior to reaching the 80 ton per year/12-month rolling emission limits, the EPA has determined that such a scenario could arise and has added a synthetic minor limit for HAP emissions in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country.”

One commenter requested that the EPA use a 12-month rolling total limit for the production limits and emissions limitations in Conditions 19, 23 and 41 of the draft sawmill facilities general permit. The commenter also expressed concern that new sources in operation for less than 12 months would not be able to determine compliance with the draft conditions for the first 11 months. The commenter provided draft language for consideration.

The EPA notes that the draft sawmill facilities permit uses a 12-month rolling total for the production limits and emissions limitations in Conditions 19, 23, and 41 of the draft general permit. Regarding the concern that new sources would have difficulty determining compliance with the draft conditions in the first 11 months, the general permit requires that sources maintain records of monthly production and monthly VOC emissions and submit an annual report that evaluates the source's compliance status with the emission limitations and standards. This will allow a source to evaluate its eventual compliance with the 12-month rolling total well before the 12th month. We have not modified the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” as suggested by the commenter.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB Control Number 2060-0003. The general permits finalized in this action do not impose any new obligations or enforceable duties on any state, local or tribal government or the private sector. This action merely establishes general permits to aid sources in satisfying the requirements of the Federal Indian Country Minor NSR rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The EPA analyzed the impact of streamlined permitting on small entities in the Federal Indian Country Minor NSR rule.51 The EPA determined that that action would not have a significant economic impact on a substantial number of small entities. This action merely implements a particular aspect of the Federal Indian Country Minor NSR rule. As a result, this action will not have a significant economic impact on a substantial number of small entities. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities. And, by establishing general permits that simplify and shorten the permitting process, this rule will lessen the burden on small business in the affected source categories that are seeking to construct in Indian country.

This action does not contain any unfunded mandate, as described in the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Sources that choose to use one or more of the general permits finalized in this action must comply with the requirements contained therein; however, no source is required to use the general permits. As a result, the action imposes no enforceable duty on any state, local or tribal government or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA conducted outreach on the July 17, 2014, proposal via on-going monthly meetings with tribal environmental professionals in the development of this final action. The EPA offered consultation to elected tribal officials immediately after proposal on June 14, 2014, via letter to 566 tribes to provide an opportunity for meaningful and timely input into the development of this regulation. No tribal officials requested consultation on this action.

Two commenters took exception to the EPA's claim that the proposed rule would “not impose duties or responsibilities on tribes.” The commenters noted that several Indian tribes own and operate facilities covered under source categories identified in the draft rule, and, thus, the draft rule will impose duties or responsibilities on some tribes. The commenters requested that the EPA review the number of tribes that own and operate facilities represented by the source categories listed in the proposed rule and determine the extent of the duties and responsibilities imposed on the tribes. The EPA disagrees with the assertion that the rule “imposes duties or responsibilities on tribes.” As noted in the preamble to the proposed rule, the EPA concluded that the rule would not impose duties or responsibilities on tribes, although it will have tribal implications. Some tribes may own affected facilities in the source categories for which we are issuing general permits via this action. However, this action merely provides general permits to aid interested minor sources in Indian country in satisfying the already existing requirement under the Federal Indian Country Minor NSR rule that they obtain a minor source permit. This action does not impose any requirements on sources in these source categories that may need to obtain a minor source permit to construct in Indian country. The use of the general permits in this final action is optional; they do not impose any compliance requirements on any source unless and until the EPA grants coverage under one of the permits to a source.

This action reflects tribal comments on and priorities for developing general permits and permits by rule in Indian country. The RTC document details all of the comments we received on the July 17, 2014, proposal from tribal and other entities. We received comments from 5 tribal commenters. We have responded favorably to tribal comments in the several areas, including:

• General support for the establishment of general permits for the six categories;

• Structure and general requirements of the draft general permits;

• Authorizing multiple locations for the use of certain general permits;

• Specific provisions of the draft spark ignition and compression ignition engines general permits;

• Specific provisions of the draft sawmill facilities general permit;

• Utilizing a permit by rule for graphic arts and printing operations; and

• Use of throughput limits and capacity limits.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in Section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

The final action involves technical standards. The EPA has decided to use the EPA Methods 5, 7, 9, 10, 18, 22 and 25A of 40 CFR part 60, appendix A.52 Three voluntary consensus standards were identified as applicable for purposes of the proposal:

1. ANSI/ASME PTC 19.10-1981 part 10 “Flue and Exhaust Gas Analyses” (alternative to the EPA Method 7);

2. ASTM D7520-09 “Standard Test Method for Determining Opacity of a Plume in the Outdoor Ambient Atmosphere” (alternative to the EPA Method 9); and

3. ASTM D6420-99 (2010) “Test method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography/Mass Spectrometry” (alternative to the EPA Method 18).

We are not finalizing these in this rulemaking. The use of these voluntary consensus standards would not be practical with applicable law due to a lack of equivalency, documentation, validation data and other important technical and policy considerations. The EPA did not receive comments that have caused us to alter the standards and methods in the final permits.

The EPA believes that the human health or environmental risk addressed by this action will not have potential, disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action does not affect the level of protection provided to human health or the environment. Rather, this final rule implements certain aspects of the Federal Indian Country Minor NSR rule. Therefore, this final action will not have a disproportionately high and adverse human health or environmental effects on minorities, low-income or indigenous populations in the United States.

Our primary goal in developing this program is to ensure that air resources in Indian country will be protected in the manner intended by the CAA. We believe that when sources have permits and compliance reporting requirements, that means that there will be reduced emissions and greater responsibility on the part of sources. This final action will reduce adverse impacts by improving air quality in Indian country. In addition, we seek to establish a flexible preconstruction permitting program for minor sources in Indian country that is comparable to similar programs in neighboring states in order to create a more level regulatory playing field for owners and operators within and outside of Indian country. This final action will reduce an existing disparity by filling the regulatory gap.

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

On February 3, 1998, the Commonwealth of Kentucky submitted a SIP revision to address the Stage II requirements 1 for the Northern Kentucky Area.2 EPA approved that SIP revision, containing Kentucky regulation 401 KAR 59:174—Stage II controls at gasoline dispensing facilities, in a notice published on February 8, 1999 (63 FR 67586). On May 3, 2016, the Commonwealth of Kentucky submitted a SIP revision to EPA seeking modifications of the Stage II requirements in the Northern Kentucky Area. Specifically, it sought the removal of the Stage II requirements in Kentucky regulation 401 KAR 59:174—Stage II Controls at gasoline dispensing facilities. EPA published a proposed rulemaking on August 17, 2016, to approve that SIP revision. The details of Kentucky's submittal and the rationale for EPA's action are explained in the proposed rulemaking. See 81 FR 54780. The comment period for this proposed rulemaking closed on September 16, 2016. EPA did not receive any comments, adverse or otherwise, during the public comment period.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Kentucky regulation 401 KAR 59:174—Stage II Controls at gasoline dispensing facilities, effective May 3, 2016, which removes Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in the State. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information)

On January 22, 2010 (published at 75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 NO2 NAAQS to EPA no later than January 22, 2013.

In a proposed rulemaking published on July 20, 2016 (81 FR 47115), EPA proposed to approve North Carolina's 2010 1-hour NO2 NAAQS infrastructure SIP submission submitted on August 23, 2013, with the exception of the elements related to state boards of section 110(a)(2)(E)(ii), the PSD permitting requirements for major sources of sections 110(a)(2)(C), and (J), and the interstate requirements of 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4). On November 13, 2015, EPA approved North Carolina's August 23, 2013, infrastructure SIP submission regarding the state boards requirements of sections 110(a)(2)(E)(ii). See 80 FR 67645. On May 10, 2016 (81 FR 28797), EPA proposed to approve in part and disapprove in part, North Carolina's December 4, 2015, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i) and (J) for the 2012 Annual PM2.5 NAAQS. Today EPA is not taking final action pertaining to sections 110(a)(2)(C), prong 3 of D(i) and (J) for North Carolina for the 2010 1-hour NO2 NAAQS but instead will consider final action of these elements in a separate rulemaking. Additionally, on June 3, 2016, EPA finalized a rule related to the prong 4 element of North Carolina's August 23, 2013, SIP submission for the 2010 1-hour NO2 NAAQS. See 81 FR 35634. With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), North Carolina provided a separate submission and EPA is considering action related to these provisions through a separate rulemaking. The details of North Carolina's submission and the rationale for EPA's actions for this final rulemaking are explained in the July 20, 2016, proposed rulemaking. Comments on the proposed rulemaking were due on or before August 19, 2016. EPA received no adverse comments on the proposed action.

With the exception of the elements related to state boards of section 110(a)(2)(E)(ii), the PSD permitting requirements for major sources of sections 110(a)(2)(C), and (J), and the interstate requirements of 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), EPA is taking final action to approve North Carolina's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS submitted on August 23, 2013. EPA is taking final action to approve North Carolina's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because the submission is consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 13, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. General Information A. Does this action apply to me?

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 section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 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-2016-0429 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 December 13, 2016. 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-2016-0429, 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.

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for the fungicide, isofetamid, N-[1,1-dimethyl-2-[2-methyl-4-(1-methylethoxy)phenyl]-2-oxoethyl]-3-methyl-2-thiophenecarboxamide, in or on caneberry subgroup 13-07A at 4.0 parts per million (ppm) and bushberry subgroup 13-07B at 5.0 ppm. These time-limited tolerances expire on December 31, 2019.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish 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 . . . .”

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The Washington State Department of Agriculture (WSDA) requested an emergency exemption for the use of isofetamid on blackberries, blueberries, and raspberries to control gray mold caused by Botrytis cinerea. Botrytis cinerea has a very wide host range which causes gray mold that becomes visible on developed fruit just prior to harvest. According to WSDA, Botrytis cinerea developed fungicide resistance and coupled with the unseasonably warm weather in Washington State, created conditions favorable for gray mold outbreaks resulting in crop damage and yield loss. After having reviewed the submission, EPA determined that an emergency condition exists for Washington, and that the criteria for approval of an emergency exemption are met. EPA has authorized a specific exemption under FIFRA section 18 for the use of isofetamid on blueberry, blackberry, and raspberry for control of gray mold (Botrytis cinerea) in Washington.

As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of isofetamid in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2019, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether isofetamid meets FIFRA's registration requirements for use on caneberry subgroup 13-07A and bushberry subgroup 13-07B or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of isofetamid by a State for special local needs under FIFRA section 24(c). Nor does this tolerance by itself serve as the authority for persons in any State other than Washington to use this pesticide on the applicable crops under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for isofetamid, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish 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 . . . .”

Consistent with the factors specified in FFDCA section 408(b)(2)(D), 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 expected as a result of this emergency exemption request and the time-limited tolerances for isofetamid, N-[1,1-dimethyl-2-[2-methyl-4-(1-methylethoxy)phenyl]-2-oxoethyl]-3-methyl-2-thiophenecarboxamide, on caneberry subgroup 13-07A at 4.0 ppm and bushberry subgroup 13-07B at 5.0 ppm. EPA's assessment of exposures and risks associated with establishing time-limited tolerances follows.

Once a pesticide'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 no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for isofetamid used for human risk assessment is discussed in Unit III.B of the final rule published in the Federal Register of July 30, 2015 (80 FR 45438) (FRL-9923-86).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to isofetamid, EPA considered exposure under the time-limited tolerances established by this action as well as all existing isofetamid tolerances in 40 CFR 180.681. EPA assessed dietary exposures from isofetamid in food as follows:

i. Acute exposure. No acute effects were identified in the toxicological studies for isofetamid; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the DEEM-FCID, Version 3.16 software with 2003-2008 food consumption data from the USDA's National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA evaluated the combined residues of parent isofetamid and its metabolite GPTC (N-[l,l-dimethyl-2-(4-β-D-glucopyranosyloxy-2-methylphenyl)-2-oxoethyl]-3-methyl-2-thiophenecarboxamide). EPA's chronic dietary exposure assessment is based on mean residue levels found in field trials for each of the crops on which isofetamid is used, using empirical and default processing factors as available, and assuming 100 percent crop treated (PCT).

iii. Cancer. Based on the data summarized in Unit IV.A., EPA has concluded that isofetamid does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use crop-specific PCT information in the dietary assessment for isofetamid. EPA assumed that for each food commodity on which isofetamid is used, 100% of the commodity has combined residues of parent isofetamid and GPTC equal to the mean field trial residues.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for isofetamid in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of isofetamid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide Flooded Application Model (PFAM) and the Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of isofetamid for chronic exposures for non-cancer assessments are estimated to be 110 ppb for surface water and 43 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 110 parts per billion (ppb) was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Isofetamid is currently registered for the following uses that could result in residential exposures: Turfgrass including golf courses, residential lawns, and recreational turfgrass. Since there may be residential use sites, residential handler exposure and risk estimates were calculated for all possible residential exposure scenarios. Given that there is no dermal toxicity concern in regard to isofetamid, the residential handler assessment only includes the inhalation route of exposure. Residential handler exposure is expected to be short-term in duration as a maximum of eight applications are allowed per year. Thus, intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners. Unit exposure values and estimates for area treated or amount handled were taken from the Agency's 2012 Standard Operating Procedures for Residential Pesticide Exposure Assessment (Section 3: Lawns/Turf). The algorithms used to estimate exposure and dose for residential handlers can be found in the 2012 Residential SOPs (Section 3: Lawns/Turf). For all residential exposure scenarios, isofetamid risk estimates are not of concern. Short-term inhalation MOEs range from 850,000 to 18,000,000.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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 isofetamid to share a common mechanism of toxicity with any other substances, and isofetamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that isofetamid 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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 Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional Safety Factor (SF) when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There is no evidence of developmental toxicity or reproductive susceptibility associated with isofetamid, and there are no residual uncertainties concerning pre- or post-natal toxicity or exposure.

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

i. The toxicity database for isofetamid is complete.

ii. There is no indication that isofetamid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional Uncertainty Factors (UF) to account for neurotoxicity.

iii. There is no evidence that isofetamid results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and average (mean) level field trial residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to isofetamid in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by isofetamid.

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, isofetamid is not expected to pose an acute dietary risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to isofetamid from food and water will utilize <1% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in the unit regarding residential use patterns, chronic residential exposure to residues of isofetamid 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). Isofetamid is currently 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 isofetamid.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential isofetamid exposures result in aggregate MOEs of 24,000 and 3,900 for adults and children (1-2 years old), respectively. Because EPA's level of concern for isofetamid is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, isofetamid is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for isofetamid.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, isofetamid is not expected to pose a cancer risk to humans.

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 isofetamid residues.

An adequate enforcement methodology (liquid chromatography with tandem mass spectrometry (LC-MS/MS)) is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established any MRLs for isofetamid.

Therefore, time-limited tolerances are established for residues of isofetamid, isofetamid, in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B at 4.0 and 5.0 ppm. These tolerances expire on December 31, 2019.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). 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 in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances 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:

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 EPA's tolerance regulations at 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 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 HQ-EPA-OPP-2015-0390 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 December 13, 2016. 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 HQ-EPA-OPP-2015-0390, 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 Wednesday, August 26, 2015 (80 FR 51759) (FRL-9931-74), 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 5E8363) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W., Princeton, NJ 08540. The petition requested that 40 CFR 180.494 be amended by establishing tolerances for residues of the insecticide pyridaben, [2-tert-butyl-5-(4-tert-butylbenzylthio)-4-chloropyridazin-3(2H)-one] in or on berry, low growing subgroup 13-07G, except cranberry at 2.5 ppm; cucumber at 0.5 ppm; fruit, citrus group 10-10 at 0.5 ppm; fruit, pome group 11-10 at 0.75 ppm; fruit, stone, group 12-12 at 2.5 ppm; fruit, small, vine climbing, subgroup 13-07F, except fuzzy kiwifruit at 1.5 ppm; and nut, tree, group 14-12 at 0.05 ppm. In addition, the petitioner requests removal of established tolerances under 40 CFR 180.494 in or on apple at 0.5 ppm; pear at 0.75 ppm; nut, tree, group 14 at 0.05 ppm; citrus (fruit) at 0.5 ppm; fruit, stone, group 12 at 2.5 ppm; pistachio at 0.05 ppm; grape at 1.5 ppm; and strawberry at 2.5 ppm upon approval of tolerances mentioned above and thereby eliminating redundancies. That document referenced a summary of the petition prepared by Gowan Company, the registrant, which is available in the docket, http://www.regulations.gov. Two comments were received on the notice of filing in support of this action.

Based upon review of the data supporting the petition, EPA has revised certain proposed tolerance levels, corrected crops/crop group definitions, as needed, and modified the tolerance expression for pyridaben to comply with current EPA policies. The reason for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish 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. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), 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 pyridaben including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyridaben follows.

EPA has evaluated the available toxicity database and considered its 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.

In subchronic and chronic oral toxicity studies in rats and mice, the adverse effects were decreased body weight and food consumption; in dogs, toxicity consisted of increased incidences of clinical signs (i.e., ptyalism) and decreased body weight. In the repeat dose dermal toxicity studies in rabbits, the adverse effect was decreased body weight. In the repeat dose inhalation toxicity study in rats, there were no adverse effects up to the highest dose tested. In all animals where toxicity was observed, body weight decreases became more pronounced as study duration increased while incidences of clinical signs of toxicity did not become more severe or more frequent as the study duration increased.

Susceptibility was observed in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies. In the rat prenatal developmental toxicity study, fetal toxicity (i.e., decreased bodyweight and incomplete ossification) occurred in the absence of maternal toxicity at the highest dose tested (HDT) of 30 mg/kg/day. In the rat developmental neurotoxicity study, offspring toxicity (i.e., decreased bodyweight) occurred in the absence of maternal toxicity at the HDT of 8.4 mg/kg/day. In the rabbit prenatal developmental toxicity study, fetal and maternal toxicity consisted of abortions and occurred at the HDT of 15 mg/kg/day. There were no adverse effects observed in the rabbit dermal prenatal developmental toxicity study. In the rat reproduction and fertility effects study, parental and offspring toxicity (i.e., decreased bodyweight) occurred at the HDT of 6.3 mg/kg/day.

In the acute neurotoxicity study in rats, animals had increased incidences of clinical signs (i.e., piloerection, hypoactivity, tremors, and partially closed eyes). In the subchronic neurotoxicity study in rats, male animals had increased incidences of impaired righting reflex. In the developmental neurotoxicity study in rats, there were no neurotoxicity effects up to the highest dose tested (17.7 mg/kg/day).

Pyridaben has been classified as “not likely to be carcinogenic in humans” based on the results from carcinogenicity studies in rats and mice. The mutagenicity studies do not indicate increased mutagenic potential in the battery of in vivo and in vitro assays.

Specific information on the studies received and the nature of the adverse effects caused by pyridaben as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Pyridaben—Human Health Risk Assessment for Proposed Uses on Greenhouse Cucumbers and Crop Group Expansions for Pome Fruit Group 11-10, Tree Nut Group 14-12, Stone Fruit Group 12-12, Citrus Fruit Group 10-10, Small Fruit Vine Climbing (except Fuzzy Kiwifruit) Subgroup 13-07F, and Low Growing Berry Subgroup 13-07G (except Cranberry), dated June 21, 2016” at page 28 in docket ID number EPA-HQ-OPP-2015-0390.

Once a pesticide'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 no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for pyridaben used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to pyridaben, EPA considered exposure under the petitioned-for tolerances as well as all existing pyridaben tolerances in 40 CFR 180.494. EPA assessed dietary exposures from pyridaben in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for pyridaben. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model-Food Commodity Intake Database (DEEM-FCIDTM), Version 3.16, which incorporates 2003-2008 food consumption information from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA used anticipated-residue estimates derived from proposed and established tolerance levels; DEEM-FCIDTM, Version 7.81 default processing factors were utilized for most processed commodities; and 100 percent crop treated (PCT).

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the DEEM-FCIDTM, Version 3.16, which incorporates 2003-2008 food consumption data from the USDA's NHANES/WWEIA. As to residue levels in food, the chronic dietary exposure assessment is partially refined, assuming anticipated residue estimates derived from proposed and established tolerance levels and percent crop treated estimates for most crops.

iii. Cancer. Pyridaben has been classified as not likely to be carcinogenic to humans. Based on the data summarized in Unit III.A., EPA has concluded that pyridaben does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for chronic exposure for existing uses as follows: almonds 2.5%; apples 20%; cherries 2.5%; grapefruit 35%; grapes 5%; lemons 2.5%; nectarines 2.5%; oranges 10%; peaches 10%; pears 35%; pecans 2.5%; plums/prunes 5%; tangelos 15%; tangerines 25%; tomatoes 2.5%; and walnuts 5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which pyridaben may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for pyridaben in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of pyridaben. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at: http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

The EPA's Tier II water models have been updated and applied in the drinking water analysis for total residues of concern (TRC) of pyridaben. The Pesticide Water Calculator (PWC), Ver.1.5001, has replaced the PE5 shell for the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) used previously to generate surface water estimated drinking water concentrations (EDWC) in dietary risk assessments. In addition, the PRZM-Ground Water (PRZM GW) model, version 1.07, has replaced Screening Concentration in Ground Water (SCI-GROW), which was used to generate groundwater EDWCs. These latest versions of the PWC and PRZM-GW models not only analyze for pyridaben, but its two degradates PB-7 and P-9, residues of concern for drinking water.

Based on the PWC and PRZM GW, the maximum acute surface water EDWCs of pyridaben TRC for acute exposures are estimated to be 12 parts per billion (ppb) for surface water and an indeterminately low concentration for ground water.

For chronic exposures for non-cancer assessments are estimated to be 0.91 ppb for surface water and an indeterminately low concentration for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

For acute dietary risk assessment, the water concentration value of 12 ppb was used to assess the contribution to drinking water.

For chronic dietary risk assessment, the water concentration of value 0.91 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Pyridaben is not registered for any specific use patterns that would result in residential exposure.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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 pyridaben to share a common mechanism of toxicity with any other substances, and pyridaben does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyridaben 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://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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. There was no evidence for increased susceptibility to pyridaben following pre- or post-natal exposure in the rat reproduction and fertility effects study, notwithstanding the observed decreased pup body weight since that is not considered to be more severe than decreased parental body weight. Parental and offspring toxicity (i.e., decreased bodyweight) occurred at the HDT of 6.3 mg/kg/day.

Increased susceptibility following prenatal exposure in the rat prenatal developmental toxicity studies was observed including fetal toxicity (i.e., decreased bodyweight and incomplete ossification) occurring in the absence of maternal toxicity at the HDT of 30 mg/kg/day. In the rabbit prenatal developmental toxicity study, fetal and maternal toxicity consisted of abortions and occurred at the HDT of 15 mg/kg/day. There were no adverse effects observed in the rabbit dermal prenatal developmental toxicity study.

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 pyridaben is complete.

ii. Although there are signs that pyridaben causes neurotoxic effects, a developmental neurotoxicity study in rats demonstrated no observed neurotoxicity effects in offspring up to the HDT of 17.7 mg/kg/day. Furthermore, the RfD of 0.44 mg/kg/day for acute dietary exposures is protective of the HTD in the developmental neurotoxicity study. Additionally, the acute RfD is based on clinical signs (piloerection, hypoactivity, tremors and partially closed eyes) in adults that could be signs of neurotoxicity, however tissue analysis did not confirm neurotoxicity. Similarly, the chronic RfD of 0.022 mg/kg/day (based on parental and pup body weight decreases in a reproductive study) is protective of the impaired righting reflex observed in the subchronic neurotoxicity study at 8.5 mg/kg/day. There is no need to retain the FQPA 10X to account for any residual uncertainties concerning neurotoxicity.

iii. There is evidence that pyridaben results in increased susceptibility following prenatal exposure in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies. There was no evidence for increased susceptibility following pre- or post-natal exposure in the rat reproduction and fertility effects study since the decreased pup body weight is not considered to be more severe than decreased parental body weight. EPA concluded that selected endpoints based on the rat reproduction and fertility effects study's NOAELs/LOAELs are protective of the susceptibility observed in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies.

iv. There are no residual uncertainties identified in the exposure databases. The pyridaben exposure databases are complete or are estimated based on data that reasonably account for potential exposures. The chronic dietary food exposure assessment was based on anticipated residue estimates derived from proposed and established tolerance levels and PCT assumptions and conservative ground water drinking water modeling estimates. All of the exposure estimates are not likely to result in underestimated exposure and risks posed by pyridaben.

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. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to pyridaben will occupy 7.8% of the aPAD for the general U.S. population and 29% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to pyridaben from food and water will utilize 5% of the cPAD for the general U.S. Population and 20% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for pyridaben.

3. Short-term and Intermediate-term risks. Short-term and intermediate-term aggregate exposures take into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Pyridaben is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, pyridaben is not expected to pose a cancer risk to humans.

5. 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 pyridaben residues.

Adequate enforcement methodology (gas chromatography with mass spectrometry (GC/MS) detection using a modified version of BASF Method D9312A) is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no Codex maximum residue levels (MRLs) established for residues of pyridaben on the commodities for which tolerances are being established in this action.

In order to harmonize tolerances with Canada and avoid trade irritants, EPA is establishing pyridaben tolerances as follows: (1) Fruit, stone, group 12-12 at 3.0 ppm, instead of at 2.5 ppm as requested; (2) Fruit, citrus, group 10-10 at 0.9 ppm, instead of at 0.5 ppm as requested; and (3) Fruit, small, vine climbing, except fuzzy kiwifruit subgroup 13-07F at 2.0 ppm, instead of at 1.5 ppm, as requested.

Finally, in accordance with EPA's policy to update its tolerance expressions where applicable, EPA is revising the tolerance expression to clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of pyridaben not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.

Therefore, tolerances are established for residues of the insecticide pyridaben, [2-tert-butyl-5-(4-tert-butylbenzylthio)-4-chloropyridazin-3(2H)-one] in or on berry, low growing subgroup 13-07G, except cranberry at 2.5 ppm; cucumber at 0.50 ppm; fruit, citrus group 10-10 at 0.9 ppm; fruit, pome group 11-10 at 0.75 ppm; fruit, stone, group 12-12 at 3.0 ppm; fruit, small, vine climbing except fuzzy kiwifruit subgroup 13-07F at 2.0 ppm; and nut, tree, group 14-12 at 0.05 ppm. Additionally, the existing tolerances in or on apple at 0.50 ppm; pear at 0.75 ppm; nut, tree, group 14 at 0.05 ppm; fruit, stone, group 12 at 2.5 ppm; citrus at 0.5 ppm; pistachio at 0.05 ppm; grape at 1.5 ppm; and strawberry at 2.5 ppm are being removed as a result of being superseded by the new tolerances. Also, the tolerance expression is being updated to clarify that the tolerance covers metabolites and degradates of pyridaben not specifically mentioned and compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression. Finally in order to correct a typographical error that was made in a previous action (Federal Register of July, 14, 2000 (65 FR 43704) (FRL-6593-1)), where a number was inadvertently dropped from the table in paragraph (a), the EPA is revising the goat fat tolerance from 0.0 ppm to 0.05 ppm in order to reinstate the original tolerance level published in the Federal Register of May 16, 1997 (62 FR 26954) (FRL-5178-4).

This action establishes tolerances 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 tolerance 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:

In FR Doc. 2016-01309 of January 22, 2016 (81 FR 3727), there was an error that is identified and corrected in the Correction of Errors section below. The provisions of this correction document are applicable as if they had been included in the document published January 22, 2016.

On page 3728, in our discussion of the cost-to-charge ratios estimates, we made an error regarding the fiscal year (FY).

In FR Doc. 2016-01309 of January 22, 2016 (81 FR 3727), make the following correction:

1. On page 3728, second column, first partial paragraph, line 12, the phrase “FY 2004 using actual market basket” is corrected to read “FY 2002 using actual market basket”.

Section 16 of the PIPES Act amends 49 U.S.C. 60117 by establishing a new emergency order authority for PHMSA in the area of pipeline safety. See 49 U.S.C. 60117(o). The statutory mandate requires PHMSA to develop procedures for the issuance of emergency orders to address unsafe conditions or practices posing an imminent hazard. This emergency order authority augments PHMSA's existing authority (e.g., Corrective Action Orders, Notices of Proposed Safety Order, Advisory Bulletins, etc.) by allowing PHMSA to act quickly to address imminent safety hazards that exist across a subset or larger group of owners or operators.

PHMSA is initiating this rulemaking with an IFR without prior notice of proposed rulemaking and opportunity to comment because section 16 states that the Secretary of Transportation 1 must issue temporary regulations no later than 60 days (August 21, 2016) following enactment of the PIPES Act. Furthermore, the Secretary must issue final regulations no later than 270 days (March 19, 2017) following enactment of the PIPES Act, at which time the temporary regulations will expire. In order to comply with this section of the PIPES Act as quickly as possible, PHMSA has determined that good cause exists for issuing an IFR.

On June 22, 2016, the President signed the PIPES Act, Pubic Law 114-183, which amended the Pipeline Safety Laws in title 49 of the statute, 130 Stat. 514. Congress enacted section 16 to address the current gap in PHMSA's authority that prevents it from addressing conditions or practices that extend beyond or affect more than a single pipeline owner or operator and must be addressed immediately in order to protect life, property or the environment. Section 60117(o) augments PHMSA's existing enforcement authority to act quickly to address imminent safety hazards that exist across a subset or larger group of owners or operators. Section 60117(o) authorizes PHMSA to issue an emergency order if it determines that a violation, unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. Under this section, an emergency order may impose restrictions, prohibitions, and safety measures on owners and operators of gas or hazardous liquid pipeline facilities without prior notice or an opportunity for a hearing. This regulatory authority allows PHMSA to impose conditions on a subset, or a broader group, of owners/operators, facilities, or systems, in accordance with the statutorily-mandated procedures outlined in this IFR.

Section 60112 of title 49, United States Code, provides for the issuance of a Corrective Action Order (CAO) to a pipeline facility after notice and an opportunity for a hearing. Prior to issuing a CAO, the Associate Administrator for Pipeline Safety must consider the following factors, if relevant: (1) The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly; (2) the nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation; (3) the characteristics of the geographical areas in which the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas, and the population density and population and growth patterns of such areas; (4) any recommendation of the National Transportation Safety Board (NTSB) issued in conjunction with any investigations conducted by the NTSB; and (5) such other factors as the Associate Administrator may consider appropriate. 49 CFR 190.233(e). After weighing these factors and finding that a particular facility “is or would be hazardous to life, property, or the environment,” see 49 CFR 190.233(a), the Associate Administrator may order the suspended or restricted use of a pipeline facility, physical inspection, testing, repair, replacement, or other appropriate action. Furthermore, if the Associate Administrator finds that failure to issue the CAO expeditiously would result in the likelihood of serious harm to life, property, or the environment, the CAO may be issued without prior notice and an opportunity for a hearing. See 49 CFR 190.233(b). In such cases, the affected owner or operator must be provided with the opportunity for a hearing and expedited review as soon as practicable following issuance of the CAO. In all circumstances, CAOs are issued to and binding upon a single owner, operator, or pipeline facility. PHMSA's statutory grant of authority does not confer the ability to issue a CAO to more than one owner or operator.

PHMSA also utilizes a Notice of Proposed Safety Order (NOPSO) to notify an operator that a particular pipeline facility has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment. The NOPSO proposes specific measures that an operator must take to address the identified risk. These may include inspections, testing, repairs, or other appropriate actions to remedy the identified risk or condition. A NOPSO addresses pipeline integrity risks that may require the owner or operator to take immediate corrective actions or ones that must be addressed over a longer period of time. Again, these orders may only be issued to a single owner or operator and are not intended to address imminent safety or environmental hazards.

The Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (HMTSSRA) conferred on the Secretary enhanced inspection authority for hazardous materials transportation, investigation, and enforcement authority. Public Law 109-59 (Aug. 10, 2005). Prior to the enactment of HMTSSRA, DOT could obtain relief against a hazmat safety violation posing an imminent hazard only through a court order. After finding such a threat, the DOT operating administration was required to enlist the Department of Justice to file a civil action against the offending party, and seek a restraining order or preliminary injunction. As a practical matter, judicial relief could rarely be obtained before the hazardous transportation movement was complete. In 2011, PHMSA published a final rule instituting enhanced enforcement authority. (Hazardous Materials: Enhanced Enforcement Authority Procedures, 76 FR 11570 (Mar. 2, 2011)). The final rule included streamlined administrative remedies that materially enhanced PHMSA's ability to prevent the unsafe movement of hazardous materials. These procedures address the issuance of emergency orders to abate unsafe conditions or practices posing an imminent hazard related to the transportation of hazardous materials. The Emergency Order Authority regulations contained in this IFR are modeled after the enhanced authority conferred by HMTSSRA, to the extent required by the PIPES Act.

While CAOs are an effective tool for the prompt evaluation and correction of a particular operator's facilities or procedures and advisory bulletins provide recommendations—but not enforceable requirements—to a wider audience, no enforcement vehicle existed, prior to adoption of the PIPES Act, that would allow PHMSA to address immediate safety threats facing the wider industry. This new enforcement tool will allow the Administrator to issue an emergency order either prohibiting an unsafe condition or practice or imposing an affirmative requirement when an unsafe condition, practice, or other activity in the transportation of natural gas or hazardous liquids poses a threat to life or significant harm to property or the environment. The emergency order authority conferred by the PIPES Act is intended to serve as a flexible enforcement tool that can be used to address time-sensitive, safety conditions affecting multiple owners/operators, facilities, or systems that pose a threat to life or significant harm to property or the environment. Unlike a CAO issued to a single operator, an emergency order would affect multiple or all operators and/or pipeline systems that share a common characteristic or condition. A variety of circumstances could warrant such an action, including: (1) Where a natural disaster affects many pipelines in a specific geographic region; (2) where a serious flaw has been discovered in pipe, equipment manufacturing, or supplier materials; and (3) where an accident reveals a specific industry practice that is unsafe and needs immediate or temporary correction. This list is not intended to be exhaustive. PHMSA will examine the specific facts in each situation to determine if an imminent hazard exists and will tailor each emergency order to address the specific imminent hazard under each circumstance presented, while observing the statutorily-mandated due process procedures.

Under section 16 of the PIPES Act, PHMSA may issue an emergency order without prior notice or an opportunity for a hearing when an unsafe condition or practice, or a combination of unsafe conditions and practices constitutes or is causing an imminent hazard. Section 16 defines an “imminent hazard” as “the existence of a condition relating to a gas or hazardous liquid pipeline facility that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment.”

The IFR requires that prior to issuance of an emergency order, PHMSA must consider the impact that an emergency order will have on public health and safety, the national or regional economy or national security, and the ability of owners and operators of pipeline facilities to maintain reliability and continuity of service to customers. An aggrieved entity may file a petition for review, at which time PHMSA must provide an opportunity for a review of the emergency order under 5 U.S.C. 554 to determine whether the order should remain in effect, be modified, or be terminated. If no agency decision with respect to the petition is issued on or before the last day of the 30-day period beginning on the date on which the petition is filed, the order will cease to be effective, unless the Administrator determines in writing, on or before the last day of such period, that the imminent hazard still exists.

Under the Administrative Procedure Act (APA) and the Federal Pipeline Safety Laws, PHMSA may issue an IFR when there is “good cause” to find that the notice‐and‐comment process would be “impracticable, unnecessary, or contrary to the public interest,” and the agency incorporates that finding and a brief statement of the reasons supporting the finding into the rulemaking document. See 5 U.S.C. 553(b)(3)(B), and 49 U.S.C. 60102(b)(6)(C). These statutes are incorporated into PHMSA's pipeline safety regulations at 49 CFR 190.311, which allow PHMSA to modify aspects of an IFR in issuing the final rule after receiving and reviewing public comments, as well as any other relevant documents.

The good cause exception was made part of the APA to address certain scenarios encountered by federal agencies where delay would jeopardize their assigned missions to protect the public. Advance notice and comment rulemaking procedures may be deemed impracticable when an agency cannot both follow the notice-and-comment procedure and still achieve its statutory objectives. The “impracticability exception” to normal notice and comment procedures is an important exception that is used where delay would do real harm.

In this instance, the PIPES Act established a 60-day timeline for issuing these temporary or interim emergency-order regulations. This statutory deadline makes notice and comment impracticable, and not in the public interest. The final details of the PIPES Act were not known to PHMSA until after the statute was enacted, and the PIPES Act only affords PHMSA 60 days to issue temporary regulations implementing emergency order authority. Thus, allotting time for notice and public comment (the standard comment period for a notice of proposed rulemaking is 60 days) prior to issuing temporary regulations would thwart PHMSA's ability to manage the schedule laid out by Congress and impede the due and timely execution of the agency's functions. Furthermore, section 16 of the PIPES Act directs a specific regulatory outcome—establishing a standard for determining when an emergency order is warranted, identifying particular factors for the agency to consider, and directing the agency to follow specific consultation requirements—for which PHMSA has no discretion.

This IFR establishes interim procedures to implement the expanded emergency order enforcement authority conferred by the PIPES Act. These procedures will apply only when PHMSA determines that an unsafe condition or practice is causing an imminent hazard. PHMSA may issue an emergency order without advance notice or opportunity for a hearing. The emergency order may impose emergency restrictions, prohibitions, and safety measures on owners and operators of gas or hazardous liquid pipeline facilities, but only to the extent necessary to abate the imminent hazard.

PHMSA proposes to amend part 190 of title 49, Code of Federal Regulations. Below is an analysis of the regulatory provisions.

This section contains a comprehensive set of definitions for part 190. PHMSA will add two definitions in order to clarify the meaning of these important terms as they are used in the text of this IFR.

Emergency order means a written requirement imposing an emergency restriction, prohibition, or safety measure on owners and operators of gas or hazardous liquid pipeline facilities without prior notice or an opportunity for a hearing.

As defined by statute, imminent hazard means “the existence of a condition relating to a gas or hazardous liquid pipeline facility that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment.”

This section contains procedures for effective service of enforcement actions issued under Part 190 and is amended to specifically exclude service of emergency orders from this section. Service of emergency orders will be defined in Section 190.236 Emergency Orders.

A new section 190.236 is added to authorize the Administrator to issue emergency orders upon determining that an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. This tool is necessary to abate conditions or other widespread circumstances that pose a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment that may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment. The order must articulate a sufficient factual basis to address the emergency situation warranting prompt corrective action.

Paragraph (a) outlines the critical elements that must be established in an emergency order prior to issuance. Principally, the order must be in writing and describe the violation, condition or practice that is causing the imminent hazard; specify the entities subject to the order; enumerate the restrictions, prohibitions, or safety measures imposed; explain the standards and procedures for obtaining relief from the order; explain how the order is circumscribed to abate the specific imminent hazard and why the authorities under sections 60112 and 60117(1) are insufficient; and explain how certain considerations were taken into account. In other words, the order must be narrowly tailored to the discrete and specific safety hazard and identify the corrective action(s) needed to remedy the hazard.

Paragraph (d) outlines how service of an emergency order will be achieved. The Administrator will publish emergency orders in the Federal Register as soon as practicable. In addition, OPS will post emergency orders on its Web site. The emergency order will contain filing and service requirements, including the address of the DOT Docket Office and all persons to be served with petitions for review.

A new section 190.237 is added to provide an affected party with administrative due process rights to seek redress of an emergency order, and thus, 49 CFR 190.237 sets forth the procedures for filing a petition for administrative review of an emergency order. The petition: (1) Must be in writing; (2) specifically state the section(s) of the emergency order being appealed; (3) include all information and arguments in support of the appellant's petition; and (4) follow appropriate service procedures. The petitioner may request a formal or an informal hearing. If a petitioner requests review of the order under section 554 of title 5, the party must detail the material facts in dispute giving rise to the hearing request. This process will allow PHMSA and the aggrieved entity to present evidence and argument in relation to the emergency order. If the petitioner does not request a formal hearing, the petition will be handled informally through the Office of Pipeline Safety unless the Associate Administrator determines that there is a reasonable basis for handling the petition through the formal hearing process.

Paragraphs (c) sets out the Associate Administrator for Pipeline Safety's responsibilities. These include: (1) Upon receipt of a petition for review of an emergency order that includes a formal hearing request and states material facts in dispute, immediately assigning the petition to the Office of Hearings, DOT; (2) for a petition for review of an emergency order that does not include a formal hearing request or fails to state material facts in dispute, issuing an administrative decision on the merits within 30 days of receipt of the petition (the Associate Administrator's decision will constitute the agency's final decision); (3) if more than one petition for review of an emergency order is received, and those orders are substantially similar, the Associate Administrator may consolidate the petitions for the purposes of complying with 49 CFR 190.237; and (4) in the event that a petitioner does not request a formal hearing, the Associate Administrator may reassign the petition to the Office of Hearings, DOT, when there is a reasonable basis for the reassignment.

Paragraphs (d) through (k) set out the administrative hearing procedures that the Department's Office of Hearings would employ. Upon receiving the petition from PHMSA, the Chief Administrative Law Judge assigns it to an Administrative Law Judge (ALJ), who schedules and conducts an “on the record” hearing under 5 U.S.C. 554. Given the statutory language of the PIPES Act, a petitioner must be afforded an opportunity for a formal hearing that addresses the merits of a petition to ensure that a record is created in a proceeding that forms the basis for the final agency decision and judicial review, if necessary.

Paragraph (d)(1) provides that an ALJ may administer oaths and affirmations, issue subpoenas as authorized by PHMSA's regulations, enable the parties to engage in discovery, and conduct settlement conferences and hearings to resolve disputed factual issues. PHMSA expects ALJs to conduct efficient and expeditious proceedings, including controlling discovery actions, to enable the parties to obtain relevant information and present material arguments at a hearing within the time parameters established.

Paragraph (g) requires the ALJ to issue a report and recommendation when the record is closed. The decision must contain factual findings and legal conclusions based on legal authorities and evidence presented on the record. Critically, the decision must be issued within 30 days after the Chief Counsel receives the petition.

PHMSA notes that Congress mandated that the Secretary must decide a petition for review within 30 days of its receipt, unless the Secretary determines in writing that an imminent hazard continues to exist, extending the order, pending review of the petition. See 49 U.S.C. 60117(o)(5). Therefore, paragraph (j) provides that the emergency order will no longer be effective if no agency decision has been rendered on the petition within 30 days of the receipt of the petition, unless the Administrator determines in writing that the imminent hazard continues to exist. The order would then remain in effect pending the disposition of the petition unless stayed or modified by the Administrator. PHMSA maintains that this provision is necessary to ensure that the order is extended until the imminent hazard is abated.

Paragraph (h) provides that an aggrieved party may file a petition for reconsideration of the ALJ's report and recommendation with the Associate Administrator for Pipeline Safety within one day of the issuance of the decision. The Associate Administrator is charged with issuing a final agency decision on the petition for reconsideration within three days of service of the final pleading, but no later than 30 days after receipt of the original petition for review.

Judicial review would be available in an appropriate District Court and afforded expedited consideration. All parties should note that the filing of a petition will not stay or modify the force and effect of final agency decision unless otherwise ordered.

Paragraph (k) specifies the computation of time in the adjudications process.

PHMSA's general authority to publish this IFR and prescribe pipeline safety regulations is codified at 49 U.S.C. 60101, et seq. Section 16 of the PIPES Act authorizes the Secretary of Transportation to establish procedures for the issuance of emergency orders that will be used to address an unsafe condition or practice, or combination of unsafe conditions or practices that pose an imminent hazard to public health and safety or the environment. The Secretary has delegated the responsibility to exercise this authority to the Administrator. See 49 CFR 1.97(a).

This IFR is a non-significant regulatory action under section 3(f) of Executive Order 12866, 58 FR 51735 (Oct. 4, 1993) and 13563, 76 FR 3821 (Jan. 21, 2011), and; therefore, was not reviewed by the Office of Management and Budget (OMB). This IFR is non-significant under the Regulatory Policies and Procedures of the Department of Transportation. 44 FR 11034 (Feb. 26, 1979).

Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” This IFR solely affects agency enforcement procedures to implement the emergency order provisions of the law, and therefore this rulemaking results in no additional burden or compliance costs to industry. However, under circumstances warranting that PHMSA issue an emergency order, there may be incremental compliance actions and costs to operators and benefits related to the immediate lessening of the imminent risks of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment across the entirety of affected populations and environments. In the case of existing regulatory provisions, costs and benefits are attributable to the original rulemaking.

This IFR has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). 64 FR 43255 (Aug. 10, 1999). This IFR does not introduce any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on state and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

Further, this IFR does not have an impact on federalism that warrants preparation of a federalism assessment.

The Regulatory Flexibility Act, 5 U.S.C. 60101 et seq., requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule will not have a significant impact on a substantial number of small entities. Because this rule does not directly impact any entity, PHMSA determined that this IFR will not have a significant impact on a substantial number of small entities.

PHMSA has analyzed this IFR in accordance with the Paperwork Reduction Act of 1995 (PRA). Pub. L. 96-511 (Dec. 11, 1980). The PRA requires federal agencies to minimize paperwork burden imposed on the American public by ensuring maximum utility and quality of federal information, ensuring the use of information technology to improve Government performance, and improving the federal government's accountability for managing information collection activities. This IFR contains no new information collection requirements subject to the PRA. However, following issuance of an emergency order, PHMSA may require the issuance of status updates, reports, or other information. PHMSA seeks comment on the potential paperwork burdens associated with this rulemaking.

PHMSA has analyzed this IFR according to the principles and criteria in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). 65 FR 67249 (Nov. 9, 2000). Because this IFR will not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

This IFR is not a significant energy action under Executive Order 13211. 66 FR 28355 (May 18, 2001). It 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. Furthermore, this IFR has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

The proposal in this IFR would not impose unfunded mandates under the Unfunded Mandates Act of 1995. Pub. L. 104-4 (Dec. 4, 1995). The IFR would not result in annual costs of $100 million or more, in the aggregate, to any of the following: State, local, or Indian tribal governments, or the private sector, and is the least burdensome alternative to achieve the objective of the IFR.

The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether an action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations order federal agencies to conduct an environmental review considering (1) the need for the proposed action (2) alternatives to the proposed action (3) probable environmental impacts of the proposed action and alternatives and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

Congress enacted the PIPES Act, in part, to address safety issues affecting multiple or all owners/operators of gas or hazardous liquid pipeline facilities

Because this IFR addresses a Congressional mandate, we have limited latitude in defining alternative courses of action. The option of taking no action would be both inconsistent with Congress' direction and undesirable from the standpoint of safety and enforcement. Failure to implement the new authority would continue PHMSA's inability to address conditions or practices constituting an imminent risk of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment.

There are no direct environmental impacts to analyze. However, the issuance of an emergency order represents a reduction in imminent risk of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment that cannot be lessened timely enough through a formal proceeding begun to lessen the risk.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the United Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement published in the Federal Register, see 65 FR 19477-78 (April 11, 2000), or you may visit http://www.regulations.gov.

For the reasons discussed in the preamble, PHMSA amends 49 CFR Subchapter C as follows:

I. Executive Summary A. Purpose of the Regulatory Action

EFVs can reduce the risk of explosions in natural gas distribution pipelines by shutting off unplanned, excessive gas flows. These events are primarily the result of excavation damage to service lines that occurs between the gas main and the customer's building. Based on the comments to this rulemaking, PHMSA experience, and various studies, PHMSA has determined that the safety benefits of expanding the use of EFVs to new or entirely replaced distribution branch services (gas service lines that begin at an existing service line or that are installed concurrently with primary service lines but serve separate residences), multifamily facilities, and small commercial facilities is appropriate from a technical, economical, and operational feasibility standpoint.

Pursuant to Section 22 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, this final rule amends the Federal pipeline safety regulations by adding four new categories of service for which EFV installation will be required. These four new categories are for new and entirely replaced services. The existing EFV installation requirement for SFRs served by a single service line remains unchanged. The new categories of service are as follows:

• Branched service lines to a SFR installed concurrently with the primary SFR service line (a single EFV may be installed to protect both lines);

• Branched service lines to a SFR installed off a previously installed SFR service line that does not contain an EFV;

• Multifamily installations, including duplexes, triplexes, fourplexes, and other small multifamily buildings (e.g., apartments, condominiums) with known customer loads at time of service installation, based on installed meter capacity, up to 1,000 SCFH per service; 1 and

• A single, small commercial customer served by a single service line, with a known customer load at time of service installation, based on installed meter capacity, of up to 1,000 SCFH per service.

Operators will be required to give all customers notice of the option to request an EFV installation, except where such installation is not required under § 192.383(c) (i.e., where the service line does not operate at a pressure of 10 psig or greater through the year, the operator has experienced contaminants in the gas stream that could interfere with EFV operation, an EFV could interfere with operation and maintenance activities, or an EFV meeting performance standards in § 192.381 is not available).

Finally, this final rule also amends the Federal pipeline safety regulations by requiring curb valves, or EFVs, if appropriate, for applications operating above 1,000 SCFH.

PHMSA estimates a total impacted community of 4,448 operators for this rule (3,119 master meter/small LPG operators who will need to comply with notification requirements and 1,329 natural gas distribution operators who will need to install valves and comply with notification requirements) and 222,114 service lines per year on average. It is expected to generate safety benefits in the form of reduced fatalities, injuries, lost product, and other property damage from certain types of preventable incidents in gas distribution pipelines. The overall benefits over a 50-year period were estimated at the annual equivalent of $5.5 million per year versus $10.6 million in compliance costs when calculated using a 7 percent discount rate. When using a 3 percent discount rate, the total benefits of the rule were estimated at $10.5 million while the costs were estimated at $12.0 million.

An EFV is a mechanical safety device installed inside a natural gas distribution service line between the street and residential meter. If there is a significant increase in the flow of gas (e.g., due to a damaged line), the EFV will “trip” or close to minimize the flow of gas through the line and thus, the amount of gas escaping into the atmosphere. During normal use, the valve is kept pushed open against oncoming gas flow by a spring. EFVs are designed so that general usage, such as turning on appliances, will not shut the valve. However, during a significant increase in the flow of gas (e.g., due to a damaged line), the spring cannot overcome the force of gas, and the valve will close and stay closed until the correct pressure is restored. When the correct pressure is restored, the EFV automatically resets itself.

Curb valves are installed below grade in a service line at or near the property line with a protective curb box or standpipe for quick subsurface access and are operated by use of a removable key or specialized wrench.

On July 7, 1998, in South Riding, VA, an explosion stemming from a residential service line resulted in one death and three injuries. It is not known if the explosion occurred on a branched or non-branched service line, but PHMSA believes that this final rule or PHMSA's previous rule requiring EFVs on single lines serving SFRs 1 would, at a minimum, have mitigated the consequences of the explosion.

An investigation by the National Transportation Safety Board (NTSB) found the explosion likely would not have occurred if an EFV had been installed on the service line leading to this single-family home. As a result of its investigation, on June 22, 2001, the NTSB issued Safety Recommendation P-01-2, recommending that PHMSA “require that EFVs be installed in all new and renewed gas service lines, regardless of a customer's classification (i.e., not just lines serving single-family residences), when the operating conditions are compatible with readily available valves.”

In December 2005, a multi-stakeholder group convened by PHMSA published a report titled: “Integrity Management for Gas Distribution: Report of Phase I Investigations.” 2 The report recommended that “[A]s part of its distribution integrity management plan, an operator should consider the mitigative value of EFVs. EFVs meeting performance criteria in § 192.381 and installed in accordance with § 192.383 may reduce the need for other mitigation options.”

In an effort to study the possible benefits of expanding EFVs beyond SFR applications, PHMSA began development of an Interim Evaluation in early 2009. In June and August of that year, PHMSA held public meetings on NTSB Recommendation P-01-2 with participants from the following major stakeholder groups: the National Association of Regulatory Utility Commissioners, the National Association of Pipeline Safety Representatives, the International Association of Fire Chiefs, the National Association of State Fire Marshals, natural gas distribution operators, trade associations, manufacturers, and the Pipeline Safety Trust.

On December 4, 2009, PHMSA amended the pipeline safety regulations to require the use of EFVs for new or replaced gas lines servicing SFRs.3 While this requirement met the mandate of the Pipeline Inspection, Protection, Enforcement, and Safety Act enacted in 2006, other distribution lines, including those that served branched SFRs, apartment buildings, other multi-residential dwellings, commercial properties, and industrial service lines, were still not required to use EFVs. These structures are susceptible to the same risks as SFR service lines.

PHMSA, already aware of this risk, issued a report in 2010 titled: “Interim Evaluation: NTSB Recommendation P-01-2 Excess Flow Valves in Applications Other Than Service Lines Serving One SFR” (Interim Evaluation),4 which studied the possible expansion of EFVs beyond SFRs and the challenges involved with such expansion. The Interim Evaluation also addressed other practical alternatives, such as the use of manual isolation devices (e.g., curb valves) to quickly cut off the uncontrolled flow of gas in an emergency. The Interim Evaluation also identified challenges related to the feasibility and practicality of the proposed solutions, as well as significant cost and benefit factors. The report found that there were no other devices or viable options to shut off gas supply quickly when gas service lines ruptured.

The Evaluation 5 was finalized in 2015, based on comments to the Interim Evaluation, input from the meetings, and comments to the Advance Notice of Proposed Rulemaking (ANPRM) discussed below. Both reports can be found in Docket PHMSA-2011-0009.

PHMSA published an ANPRM for gas pipelines on November 25, 2011 (76 FR 72666), asking the public to comment on the findings of the Interim Evaluation and issues relating to the expanded use of EFVs in gas distribution systems. PHMSA also sought comments from gas distribution operators on their experiences using EFVs, including:

• Technical challenges of installing EFVs on services other than SFRs;

• Categories of service to be considered for expanded EFV use;

• Cost factors;

• Data analysis in the Interim Evaluation;

• Technical standards for EFV devices; and

• Potential safety and societal benefits, small-business and environmental impacts, and the costs of modifying the existing regulatory requirements.

PHMSA reviewed all of the comments received in response to the ANPRM. The comments received from the trade associations largely supported expanded EFV use, with certain limitations. Individual operators raised concerns about expanded EFV use that were generally related to logistics and implementation. Comments from municipalities reflected a concern that State laws that were already in place could conflict with new Federal requirements. The NTSB expressed strong support for increased EFV use. The ANPRM comments collectively helped PHMSA finalize the Interim Evaluation and determine what regulatory changes to propose in the Notice of Proposed Rulemaking (NPRM).

In January of 2012, President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, which required PHMSA to study the possibility of expanding the use of EFVs beyond SFRs and issue a final report to Congress on the evaluation of the NTSB's recommendation on EFVs within 2 years after enactment of the Act. PHMSA was also required to issue regulations, if appropriate, requiring the use of EFVs or equivalent technology for new or entirely replaced gas distribution branch services, multifamily facilities, and small commercial facilities if economically, technically and operationally feasible.

PHMSA published an NPRM (80 FR 41460) on July 15, 2015, asking the public to comment on the findings of the finalized Evaluation and PHMSA's proposals relating to the expanded use of EFVs in gas distribution systems. PHMSA proposed a rule that would:

• Expand the EFV requirement to include new or replaced branched service lines servicing SFRs, multifamily residences, and small commercial entities consuming gas volumes not exceeding 1,000 SCFH;

• Require the use of manual service line shut-off valves (e.g., curb valves) for new or replaced service lines with meter capacities exceeding 1,000 SCFH;

• Require operators to notify customers of their right to request installation of an EFV on existing service lines; and

• Leave the question of who bears the cost of installing EFVs on service lines not being newly installed or replaced to the operator, customer, and the appropriate State regulatory agency.

The Technical Pipeline Safety Standards Committee (otherwise commonly referred to as the Gas Pipeline Advisory Committee (GPAC)) is a statutorily mandated advisory committee that advises PHMSA on proposed safety standards, risk assessments, and safety policies for natural gas pipelines. The GPAC was established under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 1-16) and the Federal Pipeline Safety Statutes (49 U.S.C. Chap. 601). The committee consists of 15 members, with membership equally divided among Federal and State agencies, the regulated industry, and the public. The GPAC advises PHMSA on the technical feasibility, practicability, and cost-effectiveness of each proposed natural gas pipeline safety standard.

On December 17, 2015, the GPAC met via a teleconference facilitated by PHMSA at PHMSA's headquarters in Washington, DC. During the meeting, the GPAC considered the specific regulatory proposals set forth in the NPRM and discussed the various comments and edits to the NPRM proposed by the pipeline industry and the public. The GPAC, in a unanimous 8-0 vote, found the NPRM, as published in the Federal Register, and the Draft Regulatory Evaluation to be technically feasible, reasonable, cost-effective, and practicable, if (1) changes were made relative to § 192.385 paragraphs (a) and (c), as amended during the meeting; and (2) PHMSA incorporated the preamble language regarding documentation of customer notification in § 192.383(f).

The GPAC recommended that PHMSA adopt the following changes:

• Curb Valve Accessibility for First Responders: PHMSA's proposal in the NPRM stated that manual service line shut-off valves are “a curb valve or other manually operated valve located near the service main or a common source of supply that is accessible to first responders and operator personnel [. . .] in the event of an emergency.” The GPAC recommended that the final rule remove language requiring proposed manual service line shut-off valves be accessible to “first responders and operator personnel.” Instead, the GPAC suggested that the rule require such valves be “accessible to operator personnel or other personnel authorized by the operator.” Several members of the GPAC shared the concerns of industry commenters that first responders would attempt to operate these manual service line shut-off valves without operator consent or authorization, which might lead to further or otherwise unforeseen consequences, including service outages. By allowing such valves to be used by “other personnel authorized by the operator,” operators could have discretion to ensure that people familiar with the gas distribution systems in question be qualified and authorized to operate manual service line shut-off valves, which might include properly trained emergency responders.

• Curb Valve Maintenance: PHMSA's proposal in the NPRM defined a manual service line shut-off valve as “a curb valve or other manually operated valve located near the service main or a common source of supply that is accessible to first responders and operator personnel to manually shut off gas flow to the service line in the event of an emergency.” Several commenters noted that this definition could cause confusion and the potential misinterpretation that these curb valves would be subject to the maintenance requirements at § 192.747, which states that “each valve, the use of which may be necessary for the safe operation of a distribution system, must be checked and serviced at intervals not exceeding 15 months but at least once each calendar year.” The GPAC recommended that manual service line shut-off valves installed under section § 192.385 be subject to regular, but less prescriptive, scheduled maintenance, as documented by the operator and consistent with the valve manufacturer's specification.

• Documentation of Customer Notification: PHMSA's proposal in the NPRM stated operators “must provide written notification to the customer of their right to request the installation of an EFV,” and that “each operator must maintain a copy of the customer EFV notice for three years.” Several commenters noted that the term “written” seemed to exclude forms of electronic notification, and they also noted that documenting individual notifications would be a costly, overly burdensome task. The GPAC recommended that PHMSA incorporate language from the NPRM preamble indicating broader options for stakeholder communication, including statements printed on customer bills or mailings or certain forms of electronic communication, including Web site postings, would satisfy the customer notification requirement, and that operators could keep a single copy of a particular method of communication for purposes of fulfilling the documentation requirement.

This final rule adopts all three recommendations of the GPAC. Additional discussion of the amendments and associated comments of the GPAC are provided below as a part of the comment discussion.

In the NPRM published July 15, 2015, PHMSA solicited public comment on whether the proposed amendments would enhance the safety of natural gas distribution systems, as well as the cost and benefit figures associated with these proposals. PHMSA received 12 comments from a broad array of stakeholders, including trade organizations, pipeline operators, a government agency, and a public citizen safety watchdog group. Below is a list of organizations that submitted comments in response to the NPRM as well as the individual docket number for each comment. All comments and corresponding rulemaking materials received may be viewed on the www.regulations.gov Web site under docket ID PHMSA-2011-0009.

The majority of the comments specifically supported expanding EFV installation requirements. Major concerns included whether first responders should have access to curb valves, whether curb valves required inspection and maintenance, and what methods were being proposed for customer notification and documentation. Minor concerns included EFV installation, the effective date of the rule, and exceptions to EFV installation and notification. The substantive comments received on the proposed regulations are organized by topic and are discussed in the appropriate sections below, along with PHMSA's responses.

• New Mexico Gas Company (NMG) PHMSA-2011-0009-0032

• Southwest Gas Corporation (SWG) PHMSA-2011-0009-0044

• NiSource (NS) PHMSA-2011-0009-0042

• Sierra Pacific Power Company (SPPC) PHMSA-2011-0009-0041

• MidAmerican Energy Company (MAE) PHMSA-2011-0009-0034

• American Gas Association (AGA) PHMSA-2011-0009-0037

• National Propane Gas Association (NPGA) PHMSA-2011-0009-0045

• Gas Piping Technology Committee (GPTC) PHMSA-2011-0009-0036

• American Public Gas Association (APGA) PHMSA-2011-0009-0024

• Northeast Gas Association (NGA) PHMSA-2011-0009-0039

• National Transportation Safety Board (NTSB) PHMSA-2011-0009-0035

• Pipeline Safety Trust (PST) PHMSA-2011-0009-0040

Proposal: EFVs can reduce the risks of explosions by shutting off unplanned, excessive gas flows, primarily from excavation damage to service lines between gas mains and buildings. Gas distribution pipeline operators are currently required to install EFVs in new and replacement service lines supplying SFRs, per the final rule titled “Integrity Management Programs for Gas Distribution Pipelines,” issued on December 4, 2009. In the NPRM, PHMSA proposed adding four new categories of service for which EFV installation will be required on new and entirely replaced gas distribution services. These four new categories are as follows:

• Branched service lines to an SFR installed concurrently with the primary SFR service line (a single EFV may be installed to protect both lines);

• Branched service lines to an SFR installed off a previously installed SFR service line that does not contain an EFV;

• Multifamily installations, including duplexes, triplexes, fourplexes, and other small multifamily buildings (e.g., apartments, condominiums) with known customer loads at time of service installation, based on installed meter capacity, up to 1,000 SCFH per service; and

• A single, small commercial customer, served by a single service line, with known customer load at time of service installation, based on installed meter capacity, up to 1,000 SCFH per service.

Comments: The majority of the commenters from trade associations, industry, citizen groups, and government entities explicitly supported the expanded use of EFVs in all categories and recognized the benefits of their use. The NTSB was “pleased that PHMSA is now proposing to expand the requirements for installing EFVs” and understood “that the expanded coverage is based on a comprehensive examination of the practical operating limits of EFVs and comments on the ANPRM.” The NTSB stated that it “supports the measures proposed in the NPRM and believes that they will improve the safety of natural gas distribution pipeline systems.” The PST noted the publication “fulfill[s] the NTSB's recommendation from 2001 to its full scope,” and they “join[ed] with the NTSB in supporting this proposed expansion.”

Industry trade associations, such as the AGA, which represents more than 200 local energy companies throughout the United States and provides gas to 94 percent of U.S. customers, stated in their comments that they and “their member utilities completely support expanding EFV installation to multifamily residential service lines and small commercial services.” The APGA, the national, non-profit association of publicly owned natural gas distribution systems with over 700 members serving 37 States, also supported the expansion of EFVs, stating that “EFVs are the one tool that distribution operators can use to reduce the risk posed when natural gas service lines are ruptured by excavation.” The APGA also noted that “in written comments submitted in response to PHMSA's ANPRM published November 25, 2011, APGA and other commenters suggested EFV installation requirements virtually identical to what PHMSA has proposed,” and “commend[ed] PHMSA for adopting APGA's recommendation.”

NMGC “commend[ed] and support[ed] expanding the use of excess flow valves to new and fully replaced branch services, small multifamily facilities, and small commercial facilities where economically, technically, and operationally feasible.” SWG “support[ed] the practical and reasonable expansion of EFVs to new and fully replaced service lines beyond single family residential applications,” in part “evident by its EFV installation policy and number of EFVs installed [on its existing system].” Likewise, the NGA “support[ed] PHMSA's proposal to expand the use of excess flow valves in gas distribution services for newly constructed applications other than single-family residences and when existing services are excavated or replaced,” recognizing that “installing EFVs, under conditions where they are effective, when new services are installed, or existing services are exposed, repaired or replaced, is a cost-effective measure to improve pipeline safety.” The NGA also noted that it “supported this proposal in its initial comments to the advanced notice of proposed rulemaking related to this issue in 2012.”

PHMSA Response: PHMSA has been attempting to address issues involving the broad installation of EFVs since at least 1990, and the NTSB has issued several recommendations to PHMSA and the regulated industry regarding the installation of EFVs on particular services as far back as the 1970s. NTSB Recommendation P-01-2, which asks PHMSA to “require that excess flow valves be installed in all new and renewed gas service lines, regardless of a customer's classification, when the operating conditions are compatible with readily available valves,” is one of PHMSA's oldest, unclosed NTSB recommendations.

Prior attempts to require the installation of EFVs on certain gas distribution services were not supported by both industry and State pipeline safety partners; for years, EFVs were perceived as unreliable, costly pieces of equipment that might accidentally close and interfere with normal service, interfere with maintenance activities, or be difficult to size and use at varying line pressures. Further, in the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006, Congress provided PHMSA with a mandate to focus its resources on requiring EFV installation on service lines serving single-family residences as part of PHMSA's gas distribution integrity management program (DIMP) rulemaking. Following the issuance of the DIMP rulemaking and the EFV regulations in 2009, EFVs became more technologically feasible and cost-effective to a point where it became a realistic possibility for PHMSA to address fully the NTSB recommendation. PHMSA performed several studies and surveys to evaluate the feasibility of its position on high-volume EFVs and used its experience in the prior EFV rulemaking to assist in formulating this proposal. PHMSA is pleased that there is now such widespread support, both from industry and public groups, for expanding the installation of EFVs beyond SFRs. Accordingly, this final rule amends the Federal Pipeline Safety Regulations by adding the proposed four new categories of service to require EFV installation on branched service lines (both branched lines to SFRs installed concurrently with the primary SFR service line and branched lines to SFRs installed off a previously installed SFR service lines not containing an EFV), lines serving multifamily installations, and lines serving small commercial and industrial customers.

Proposal: In the NPRM, PHMSA proposed requiring operators to install curb valves for applications that operate above 1,000 SCFH, are not suitable for EFV installation, and do not meet the exemptions in the existing § 192.383. Curb valves are the most feasible alternative to EFVs in locations that exceed 1,000 SCFH or have other issues that prevent EFV use. Although they cannot be operated instantaneously like EFVs, curb valves can still mitigate the effects of gas line explosions and are an effective safety measure. Therefore, PHMSA proposed that any curb valves installed under this section be accessible to first responders. PHMSA's experience indicates that, frequently, first responders arrive at the scene of an incident before operator personnel do. If first responders have access to a curb valve during an emergency and can operate it, the valve can be closed to mitigate further consequences.

Comments: The NTSB was pleased to note that PHMSA's proposal to require that operators “install a manual service line shut-off valve on new or replaced service lines in such a manner that emergency personnel can access the valve [. . .] goes beyond the original intent of [the NTSB's] recommendation, to further ensure safety.” The PST joined the NTSB in supporting this measure.

Several of the commenters representing trade associations and operators supported the use of curb valves where EFVs are not feasible but strongly opposed requiring that curb valves always be accessible to first responders. These commenters generally indicated that it should be the operator's responsibility to operate these select portions of gas distribution systems and that it should be up to the operator's discretion to allow other personnel to operate these valves, if needed. Certain operators noted the “Pipeline Emergencies” training manual, a document developed by a team of respected emergency response and industry experts in partnership with the National Association of Fire Marshals and PHMSA, states that emergency responders should consult the local gas company to determine local procedures for fire department use of curb valves. The AGA indicated there are a few unique situations where operators have properly trained first responders to operate curb valves, but such a practice is not followed by most utilities. Certain industry operators, including the SPPC, commented that they specifically train first responders in their service territories, for safety reasons, not to manually shut off gas flows. If manual service line shut-off valves are accessible to first responders, first responders may operate the wrong valve, may not have the proper equipment to operate the valve, or may incorrectly operate the valve.

Operators and trade associations also asserted that, given the complexity of gas distribution systems, emergency shut-off valves should only be operated by operator-qualified personnel who are familiar with the specific gas distribution system in question. NS suggested that, as operators have engineering records indicating the location of all valves and which ones they control, operator personnel can verify the location and purpose of a valve, thereby eliminating the possibility of operating the wrong one and creating a greater hazard.

The AGA noted there are many accounts of first responders who, without the approval of the gas company, have inadvertently closed the wrong valve or opened a valve that should have been closed. Several operators argued that allowing first responders to operate manual service line shut-off valves would create additional inconveniences or safety risks, including loss of service to other customers or additional property damage, injuries, or even deaths.

Some operators indicated that giving first responders immediate access to curb valves would distract them from their primary mission, which is to perform safety assessments, make locations safe for people, and conduct evacuations from areas of danger. Instead, they would suddenly have responsibility for locating valves, determining which valves should be closed, and closing them—tasks which could potentially interfere with their primary mission and for which they might not be trained.

At the GPAC meeting, members of the committee expressed concerns similar to those raised by industry regarding unauthorized or improper manual service line shut-off valve usage. The committee debated whether there could be a requirement authorizing first responders to operate those particular valves or whether operators could give discretion to certain first responders to operate valves. One question that was brought up was whether eliminating “first responders” from the proposed language (which would leave “accessible to operator personnel” remaining) would unintentionally create a requirement that would make manual service line shut-off valves accessible to only company personnel. The committee eventually suggested revising the paragraph by striking the reference to first responders and inserting “other personnel authorized by the operator.” The committee believed this would give operators the primacy they sought for operating their own distribution systems while, at the same time, making the valves accessible and usable by non-operator personnel with the operator's consent.

PHMSA Response: PHMSA disagrees with those commenters who argued that curb valves should not be accessible to first responders. Many comments PHMSA received seemed to equate valve accessibility with authority or expectation to operate those valves without consent. PHMSA is in no way implying that first responders should have complete autonomy in deciding whether to operate valves on a given gas distribution system.

In PHMSA's experience, there have been accidents where the consequences have grown due to operator delays in shutting off curb valves. As a part of an operator's regular liaison with first responders, operators can, if they wish, train first responders to use curb valves properly through regular exercises and communications. Further, if the valve cover plate is clearly marked, there should not be any confusion regarding the operation of the valve in an emergency. However, PHMSA is not advocating the unauthorized operation of these valves. Unless they believe there is imminent threat to human life or extensive property damage, first responders should not operate curb valves without operator input or consent.

In this final rule, PHMSA is adopting the language recommended by the GPAC, which would make curb valves accessible to operators and other personnel authorized by the operator to manually shut off gas flow, if needed, in the event of an emergency. PHMSA appreciates the work of the GPAC in proposing a consensus solution that enables first responders, if qualified and authorized, to operate valves if needed, yet retains the operators' right to make decisions regarding the operation of their own systems.

Proposal: In its NPRM, PHMSA proposed requiring operators to install curb valves for applications that operate above 1,000 SCFH, are not suitable for EFV installation, and do not meet the exemptions in the existing § 192.383. Curb valves are the most feasible alternative to EFVs in locations that exceed 1,000 SCFH or have other issues that prevent EFV use. Although they cannot be operated instantaneously like EFVs, curb valves can still mitigate the effects of gas line explosions and are an important safety measure. Under the proposed amendment to § 192.385(c), manual service line shut-off valves for any new or replaced service line must be installed in such a way as to allow accessibility during emergencies.

Comments: Just as it supported the proposal to ensure the accessibility of curb valves to first responders, the NTSB also supported this proposal. Comments from industry and trade associations, however, were unified in their concern that this requirement would create confusion regarding maintenance requirements based on earlier PHMSA interpretations.

Specifically, operators noted that the addition of § 192.385, as proposed in the NPRM, might lead to the mistaken inference that manual service line shut-off valves would be subject to the valve maintenance requirements set forth in § 192.747, “Valve maintenance: Distribution systems.” The AGA, NMGC, SWG, and APGA all noted that PHMSA has issued many letters of interpretation affirming that § 192.747 does not apply to curb valves, but the proposed § 192.385 could be misconstrued to require such annual inspections. The AGA and NMGC support PHMSA's historical position that manual curb valves are not considered a “critical valve” for inspection purposes, suggesting that if these valves were to be designated as critical valves, operators would have to hire and train a significantly larger staff to inspect and maintain these valves, which would significantly increase operating costs and impose an administrative burden. The AGA and APGA noted that if it was PHMSA's intent to change its position and require annual inspections on these manual curb valves, this is not indicated in the NPRM, the estimated cost of the rule, or the estimated paperwork burden. Operators suggested PHMSA clearly state in the final rule that curb valves installed under this proposal would not be subject to the requirements at § 192.747.

At the GPAC meeting, members of the committee discussed this proposal and whether these valves should be inspected and maintained according to the requirements at § 192.747. Several members agreed that inspecting and maintaining these valves would be an important safety measure, although several suggested that requiring these valves to be inspected and maintained would require an increase in staffing and operator qualification.

Other members of the committee expressed concerns about operating these valves for inspection purposes, arguing that testing curb valves could knock out service in areas if they were operated improperly, and that testing could potentially present more risk than reward. Members of the committee also agreed that requiring annual inspection and maintenance of these valves would be unreasonable and perhaps unnecessary. Some suggested that if these valves were to be inspected and maintained, then perhaps those requirements could be tied to existing maintenance activities, such as leak surveys and patrolling, meter-change programs, or other times when service lines would be shut off.

Ultimately, the committee suggested requiring valves installed under this section to be subject to regularly scheduled and documented maintenance consistent with the valve manufacturer's specifications. While some GPAC members expressed concern that valve manufacturers might specify overly stringent inspection and maintenance intervals for particular curb valves, other GPAC members noted that manufacturer specifications are an important part of the industry's operation and maintenance considerations.

PHMSA Response: PHMSA believes that curb valves installed under this section must be accessible (e.g., clear of debris) and occasionally operated to ensure they are working properly. A curb valve does not provide any safety benefit if it is inoperable. Therefore, to ensure the safe operation of a particular gas distribution system, it is imperative that these valves function as intended. PHMSA concluded that the burden of inspecting and maintaining these valves would be minimal, as operator personnel can meet these requirements by simply ensuring the valves are free of debris that could prevent operation and by ensuring the valves are able to turn and operate. Further, these requirements can be quickly performed and will not be an undue burden on operators, as operators can choose to coordinate them with other activities, such as leak surveys, patrolling, meter-change programs, as well as other actions where service would be shut off and properly qualified personnel are present.6 PHMSA also agrees with the GPAC discussion regarding manufacturer specifications. Not only are manufacturer specifications important to consider in the context of operating a safe gas transportation system, but market forces typically ensure reasonable operation and maintenance standards.

PHMSA appreciates the work of the GPAC in debating this proposal and chooses to adopt the language the GPAC recommended, as the amendment strikes a good balance between limiting any potential burden imposed on operators and performing necessary activities to ensure operability and safety. Therefore, the final rule amends the Federal Pipeline Safety Regulations to require that manual service shut-off valves installed under this section be subject to regular scheduled maintenance as documented by the operator and consistent with the valve manufacturer's specifications.

Proposal: PHMSA proposed in the NPRM that operators must notify customers of their right to request the installation of EFVs. Specifically, each operator must provide written notification to the customer of their right to request the installation of an EFV within 90 days of the customer first receiving gas at a particular location. Operators of master-meter systems may continually post a general notification in a prominent location frequented by customers.

Comments: PHMSA received several comments on the proposed notification requirement regarding the frequency of notification, method of notification, notification content, and the persons who should receive notification. The NTSB was “pleased that PHMSA is proposing to require the operator to inform customers of their right to request an EFV be installed on an existing service line,” and the PST joined the NTSB in that support. Operators and trade associations nearly universally supported notifying all existing customers of their right to request an EFV through broad communication methods rather than the proposed individual, dedicated notification method, which those commenters argued would have created a significant administrative burden.

Some commenters questioned the effectiveness of the requirement for notification to customers within 90 days of new service. The APGA felt it was unclear what was meant by “notification must occur within 90 days of the customer first receiving gas at a particular location.” This could be interpreted to apply when the operator changed the name of the person to whom it sends gas bills. This could also be interpreted not to require notification of existing customers who have been receiving gas for more than 90 days. MAE noted it appears the intent studied in the Evaluation was for a single annual notification to all customers and customer classes, based on a 1-hour level of burden. Several operators, including MAE and SPPC, as well as trade organizations, argued that establishing a 90-day requirement per customer would cause a significant increase in costs, documentation efforts, and a tangible administrative burden. MAE concurs with the idea of notifying owners of the option for an EFV and its potential benefits but believes this could be done with a new customer packet that could be acted upon by customers who want to initiate installation. This could then be inspected as a part of the public awareness program.

Many operators and trade associations suggested that notifying all existing customers through a broad notification, such as “bill stuffers,” “new customer” packets, and Web site postings, would be a better use of operator resources and provide greater benefits. SWG noted that allowing operators to provide EFV notification through broad means would be consistent with the way PHMSA proposed the notification requirement for master-meter operators. Further, the AGA mentioned that the NPRM's “Section-by-Section” analysis indicated PHMSA was open to other forms of notification, such as a printed statement on a customer bill or mailings, but that was not evident in the actual proposed regulatory text. Members of the GPAC echoed this statement when the committee meeting was held and wanted PHMSA to clarify which methods of notification were acceptable. The AGA suggested that given the number of customers that have migrated to online billing and have opted to receive notifications electronically from their natural gas service provider, operators should be able to satisfy the notification requirement through electronic notifications to customers, postings on the company's Web site, and other forms of electronic communications. Satisfying the proposed requirement through these methods as well as traditional communications would allow effective communication at a lower cost and in a more efficient manner. The AGA urged PHMSA to make it clear in the final rule that individual communications to each customer would not be required, and that an annual general EFV communication would suffice. The APGA noted that, as many operators may elect to use bill stuffers to notify all customers about EFVs, PHMSA should allow, as an alternative to notification within 90 days of a customer receiving gas, operators to notify all customers annually of their right to request an EFV. For many APGA members, this would be the least administratively burdensome method of notifying customers and have the added benefit of providing customers who may have overlooked the original notice with additional opportunities to choose to have an EFV installed on their service lines.

Several commenters had miscellaneous concerns on what the customer notification should contain. SPPC suggested providing a description of EFVs and their safety benefits as well as advice on how to request one, a notification that could be inspected as part of an operator's public awareness program. The AGA recommended that PHMSA require operators include general information in their public communications on the cost associated with retrofitting an existing service line to accommodate an EFV. NS suggested PHMSA adapt and incorporate language similar to that issued in the 1998 EFV customer notification rule, including language discussing the potential safety benefits, a description of installation and replacement costs, and an explanation of when a requested EFV would be installed.

PHMSA Response: PHMSA appreciates the comments received on this topic and the industry's support for a broad annual notification requirement that would provide customers with important safety information. When outlining the proposal in the NPRM, PHMSA did not intend to suggest that customer EFV notifications needed to be non-electronic or otherwise individually carried out. PHMSA has no objection to the method by which operators notify their customers as long as the operator can be sure of reaching all customers who have a right to request an EFV. Therefore, a combination of methods, including Internet Web site postings, bill stuffers, new customer packets, statements on billing materials, et cetera, can be used to notify all customers. PHMSA has determined that, as many of the commenter-proposed methods would theoretically notify, on a regular basis, all customers about their potential right to request an EFV, a broad, electronic method of communication would meet the intent of the regulation and be acceptable.

PHMSA has also determined that, as operators appear to be willing to notify all existing customers about their potential right to request an EFV, the specific 90-day customer notification window for new services is unnecessary. PHMSA has removed this language from the final regulatory text. A broad notification to all customers will also address any concerns about reaching customers who are not eligible for EFV installation or who have already had EFVs installed.

As for the specific content of a notification, PHMSA has determined it would be beneficial to include language that was previously required in the 1998 EFV notification rule, especially considering that operators would already be familiar with the previous requirements. In line with comments from SPPC, AGA, and NS, PHMSA will require that operators include general information on the cost associated with EFV installation, the potential safety benefits that may be derived from installing an EFV, and conditions for installation. The operator may choose how to word the specific information as long as they provide sufficient information to give customers a rational basis for deciding whether they want to request an EFV installation. The notification should also be written in plain language.

Proposal: PHMSA proposed in the NPRM that each operator must maintain a copy of the customer EFV notice for 3 years. This notice must be available during PHMSA inspections or State inspections conducted under a pipeline safety program certified or approved by PHMSA under 49 U.S.C. 60105 or 60106.

Comments: The majority of the comments submitted by industry and trade associations were an extension of the concerns regarding customer notification and focused on the idea that documenting individual notifications would be a major undertaking and a poor use of resources. While many operators and trade associations seemed to agree that using and documenting broad methods of communications (e.g., statements printed on customer bills, mailings, or electronic Web pages) would be reasonable, there were some differing opinions on how notifications should be documented.

The AGA recommended that the final rule allow retention of a single copy of any notice, accompanied by a listing of the customers who received the mailing, or by documenting the electronic communication itself. The APGA noted that in the proposed rule's preamble, PHMSA stated that evidence of notification could include such items as a statement printed on customer bills or mailing. The APGA further noted that PHMSA did not propose to require operators to keep records showing that individual customers had been notified. SWG stated that while the section-by-section analysis indicated that operator evidence of notification could include such items as a statement printed on customer bills or mailings, the proposed regulatory text did not include such language.

Some operators and trade associations discussed other issues pertaining to the 3-year recordkeeping requirement. SPPC and NGA noted that customer properties with frequent turnover would have multiple records for the same address that would need to be maintained and sorted for a period that could extend beyond the 3 years required by the regulations. The NPGA argued that PHMSA's recordkeeping requirement presented a greater burden than estimated. For large liquefied petroleum gas (LPG) operators, it would be a considerable clerical task to collect and review all EFV installation notifications to maintain a record spanning 3 years. The NPGA suggested that PHMSA permit the recordkeeping as an option rather than a requirement, which would allow LPG operators to choose best practices for their businesses and customers.

PHMSA Response: PHMSA determined that several of the concerns raised by commenters in this section could be addressed through clarifying the proposed language and through revisions to the customer notification method.

It was not PHMSA's intent to suggest that operators would need to transmit and document individual notifications to eligible customers. As a few of the commenters pointed out, PHMSA had indicated that a statement printed on customer bills or mailings would suffice as evidence for customer notification, but this language and intent was not incorporated into the proposed regulatory text. As PHMSA is allowing operators to notify customers through a broad range of electronic and traditional communications, the agency will also allow operators to retain a copy of the broad annual notification or notifications they are using to communicate with customers their right to request an EFV. In line with the 2008 Federal Pipeline Safety Regulations regarding operator evidence of customer notification, operators will be required to make a copy of the notice currently in use available during PHMSA inspections or inspections conducted under a program certified or approved by PHMSA under 49 U.S.C. 60105 or 60106 without any further recordkeeping requirement or timeframe.

Proposal: PHMSA proposed in the NPRM that operators must install a manual service line shut-off valve for any new or replaced service line with an installed meter capacity exceeding 1,000 SCFH.

Comments: Overall, operators and trade associations supported installing curb valves where EFVs are not feasible due to operational concerns. However, many operators and trade associations noted that the language, as proposed, did not allow operators flexibility for installing EFVs where possible on lines operating at greater than 1,000 SCFH and also might require operators to install both an EFV and a manual service line shut-off valve on the same line.

Several operators and trade associations, including SPPC, NMGC, AGA, NS, MAE, APGA, and SWG, suggested PHMSA revise the proposed regulatory text to give operators the option to install either an EFV or a manual service line shut-off valve based on sound engineering analysis and the availability of larger-format EFVs. The NMGC verified with EFV manufacturers, such as GasBreaker Inc., that EFVs are available and will meet the requirements necessary for operating on single-family residences above 1,000 SCFH. NS saw an opportunity to encourage operators to install EFVs on loads in excess of 1,000 SCFH, as NS has had success with installing EFVs in service lines for loads greater than 1,000 SCFH. The APGA believed the technology of EFVs and products available would continue to evolve, and in the future, some operators may test and become comfortable installing EFVs on some services operating above 1,000 SCFH. The APGA noted the rule should state that an operator need not install a curb valve if the operator installs an EFV on a service line instead. Further, SPPC noted that this requirement should be flexible enough to ensure that operators can account for increased loads in the future, such as being able to install a curb valve on a new service line with an initial load less than 1,000 SCFH but that might later exceed 1,000 SCFH so as to avoid the additional cost of replacing an EFV with a curb valve in the future.

Additionally, NMGC, SWG, NGA, and AGA determined that under no circumstances should operators be required to install both an EFV and a manual service line shut-off valve on the same service line. The AGA noted that, as currently proposed, the regulations would require both a manual curb valve and an EFV on (1) any SFR operating at greater than 1,000 SCFH or (2) a non-SFR operating at greater than 1,000 SCFH where an operator installed an EFV under DIMP. Further, as proposed, the rule could prohibit further innovation on EFVs that might be able to operate above 1,000 SCFH.

The GPTC expressed a similar view on the issue, noting that the rule, as proposed, would not give an operator sufficient flexibility to use sound engineering practices to design an EFV on service lines with loads greater than 1,000 SCFH, in lieu of a manual curb valve. In the proposed § 192.383(b)(4) and (5), PHMSA established a threshold of 1,000 SCFH customer load over which an EFV was not required. However, there is no threshold limit of 1,000 SCFH for proposed § 192.383(b)(1), (2), and (3). The result is that a large SFR or branch to two large SFRs with a service line load greater than 1,000 SCFH would have both an EFV and a curb valve, but a multifamily residence with a service line load greater than 1,000 SCFH would require only an emergency curb valve, even if an EFV were available and suited for the application. The GPTC asked PHMSA to modify this section to allow greater flexibility.

PHMSA Response: PHMSA did not intend to require that operators install both a curb valve and an EFV on the same service line and would like to give operators the flexibility to choose the proper safety valve. PHMSA has no objection to operators installing EFVs on lines with capacities over 1,000 SCFH, as long as that decision is reached through sound engineering analysis. To clarify, if an operator cannot or chooses not to install an EFV on an applicable service line with capacity over 1,000 SCFH, it must install a curb valve.

PHMSA notes that it originally wanted to require operators install EFVs on service lines with loads up to 5,000 SCFH, as PHMSA knows that valves are available for these applications, and manufacturers have indicated they have sold EFVs for these load sizes. PHMSA chose the 1,000 SCFH threshold, which was accepted by the GPAC, as a compromise based on comments from industry. Having operators perform a sound engineering analysis will allow PHMSA to verify operators are taking into account maximum loads and the capabilities of EFVs, if available, to handle those loads. An operator's engineering analysis for sizing an EFV should be based on maximum expected load throughout the year, including snap loads, critical supply applications, system configuration, and future anticipated loads (e.g., when commercial facilities in a shopping center change, gas loads would also change). In many instances, operators size EFVs based on meter capacity at the service. Operators must use caution in expanding EFV use to other larger commercial and multifamily dwelling applications due to the complexity of service line design and usage patterns.

In response to SPPC's comment, PHMSA is not allowing manual valve installation for loads below 1,000 SCFH, even when future anticipated loads may exceed that threshold. In this final rule, PHMSA is allowing operators to install EFVs in lieu of manual valves in instances where loads exceed 1,000 SCFH. As operators already consider anticipated design loads and work with distribution system designers to determine proper system configurations and valve sizing when installing systems, operators should be able to install appropriate valves for future anticipated loads.

PHMSA also considered the GPTC's comment. In the best professional judgment of PHMSA's subject matter experts, a SFR service line combined with a branch service to another SFR isn't known to exceed 1,000 SCFH, and typical houses consume anywhere from 100-250 SCF per day. However, commercial and industrial facilities can exceed 1,000 SCFH, and therefore the threshold is needed. Accordingly, in this final rule, PHMSA has amended the Federal Pipeline Safety Regulations at § 192.385(b) to require that operators install either a manual shut-off valve or, if possible, based on sound engineering analysis and availability, an EFV on lines operating at capacities exceeding 1,000 SCFH.

Proposal: In its NPRM, PHMSA proposed that existing service line customers who desire an EFV on service lines not exceeding 1,000 SCFH and not meeting one of the exceptions contained in paragraph (c) of § 192.383 may request an EFV on their service lines. If a service line customer requests EFV installation, an operator must install the EFV at a mutually agreeable date. The appropriate State regulatory agency would determine who would bear the cost of installation and how the cost would be distributed.

Comments: Operators and trade associations were strongly opposed to the final sentence in PHMSA's proposal that designated the appropriate State regulatory agency as the entity that would determine who would bear the cost of the requested EFV. Most of the comments questioned whether PHMSA had the legal authority to make such a statement and whether a State regulatory agency would be the appropriate authority for all cases. Specifically, the AGA, APGA, and GPTC noted that PHMSA lacked the jurisdiction to codify and regulate the manner by which utilities handle charges to customers.

The NPGA noted that PHMSA's proposal to permit State regulatory authorities to determine what party is responsible for installation costs when a customer requests installation of an EFV presents particular concerns for LPG systems and businesses. PHMSA's deference to State agencies would impose disproportionately negative effects on operators of LPG systems compared to other utilities, since LPG pipeline operators are not regulated in the same manner as natural gas utilities. The NPGA asked that PHMSA modify the proposal to assign the cost of EFV installation performed at a customer's request to the customer itself, as LPG businesses are not positioned to pass along additional costs to customers in the same manner as locally regulated utilities.

NS noted that in previous amendments to § 192.383 (EFV customer notification, Feb 3, 1998), the Research and Special Programs Administration, PHMSA's predecessor agency, acknowledged that the cost of installing an EFV on an existing line was to be the responsibility of the customer. Therefore, if PHMSA wishes to address who is to pay for the installation of EFVs on existing service lines, NS proposed that PHMSA adopt its previous requirement that the service line customer bear the cost. NS also believed this requirement would also be best addressed under § 192.383(e).

The APGA was vehemently opposed to the proposed language stating that the appropriate State regulatory agency would determine to whom and how the costs of the requested EFVs would be distributed, indicating that of the approximately 1,000 public gas utilities subject to the Federal Pipeline Safety Regulations, only a few have a State agency determining how the cost of gas service is distributed among customers. Whereas State public utility commissions (PUC) typically review and approve the rates charged by investor-owned and privately owned operators (which represent less than 25 percent of distribution operators regulated by PHMSA), rates for public distribution systems are typically approved by the municipality, utility board, or similar local oversight body. The APGA noted the preamble of the NPRM made clear that PHMSA did not intend to regulate how EFV costs would be recovered and did not believe it was PHMSA's intent to require public gas distribution operators to become subject to PUC review for EFV cost recovery. Rather, the APGA believed it was PHMSA's intent to “leave the determination of how the cost of installing an EFV at customer request to the operator and whatever body approves the operator's gas rates.”

Apart from PHMSA's proposal for determining cost recovery, some commenters discussed additional cost-benefit issues related to EFV installation on existing service lines. The APGA noted that operators should only be required to install EFVs if requesting customers also agree to whatever cost-recovery mechanism has been included in the operator's approved rates. The AGA, SWG, and NGA noted that the cost of retrofitting an EFV on an existing service line could be significant, with SWG adding that this cost was not included in PHMSA's cost-benefit analysis. The NGA further indicated that offering customers the option of installing EFVs on existing services not planned for replacement, excavation, or repair was not a cost-effective safety measure, and installing EFVs on existing services should be evaluated by each operator as a part of its integrity management planning.

MAE requested a further analysis of the value and costs of installation, operations and maintenance, and leak rates on curb valves to determine whether there are more cost-efficient methods of emergency shut-off. A member of the GPAC also expressed concerns about PHMSA's cost-benefit numbers related to curb valves, suggesting that PHMSA reconsider including curb valve maintenance in the cost-benefit analysis and further analyze whether the incidents PHMSA used when examining the effectiveness and usefulness of curb valves were applicable to the analysis. Specifically, the GPAC member questioned whether, for the incidents PHMSA selected applicable to curb valves in its analysis, a curb valve on the line would have actually prevented fatalities, injuries, or property damage, noting that the narrative of a few of the accidents indicated some of the fatalities and injuries were actually caused by car crashes and not the subsequent gas incidents.

PHMSA Response: It was not PHMSA's intent in the proposal to specifically delegate cost-recovery duties to State regulatory agencies, especially where certain operators do not have their rates set by these entities. In the Section-by-Section analysis of the NPRM, PHMSA noted it “has no jurisdiction concerning natural gas rates or any costs incurred due to installation of an optional EFV at a consumer's request.” PHMSA was only trying to indicate that it would defer to the existing rate-setting and cost-recovery structure under which operators currently operate. Therefore, PHMSA has removed the reference to “State regulatory authority” in the regulatory text applicable to cost recovery and has inserted “The operator's rate-setter” to reflect this intent.

PHMSA understands that the cost of installing an EFV on an existing line at the customer's request is more expensive than if the line were new or being replaced due to excavation and additional labor costs and determined it was not cost-effective to require the fitting of an EFV on all existing services.

A 2007 National Regulatory Research Institute (NRRI) study titled “Survey on Excess Flow Valves: Installations, Cost, Operating Performance, and Gas Operator Policy,” suggests that customer-initiated EFV installations are quite rare, even in locations where they are currently allowed by local policy, and would not be a circumstance operators would be dealing with in significant numbers. However, without this provision, customers on existing lines without an EFV would essentially have no option to install an EFV, even if they highly valued the risk reduction that it provided and were willing to pay the full installation cost. These foregone transactions would represent deadweight loss. Although PHMSA determined that mandatory installation on all existing lines would not be cost-effective due to excavation and labor costs, some individual households might have a high willingness-to-pay for EFVs due to differences in risk aversion, rate of time preference, and other factors.

Further, it is PHMSA's understanding that customers would typically be required to pay for these installations. From an economic standpoint, an EFV requested and paid for by a customer would actually increase the overall net benefit of the final rule, as PHMSA can infer from the customer's choice that they value the EFV's protection at a level greater than the cost they pay.7 Therefore, PHMSA has chosen to retain the right for existing customers to request an EFV installation if they are eligible.

As for the concern of whether applicable incidents were chosen to analyze the costs and benefits for curb valves, PHMSA applied reasonable filters to its data to choose appropriate and applicable incidents for analysis but there can be some level of uncertainty in such incident data. PHMSA is also aware of incidents that might have been prevented by the use of a curb valve, but these incidents were excluded from the analysis due to data limitations or for other reasons.

In light of this particular comment, however, PHMSA reexamined and revised the incident set pertaining to curb valves in order to provide a more conservative cost-benefit analysis. For some of the incidents in question (e.g., where drivers crashed cars into meter sets), it is unlikely a curb valve would have been effective in preventing the incident following impact, and these incidents were removed from the data set. The final Regulatory Impact Analysis is available in the docket.

PHMSA notes that because a curb valve can allow gas flow to be shut off quickly, a curb valve could still be effective in mitigating the consequences of these incidents by shortening their duration, especially where property damage is concerned. Further, PHMSA's data is limited and often does not indicate clearly whether fatalities, if not caused by the initial impact, are due to injuries sustained during the crash or by the subsequent pipeline incident. For example, quickly shutting off the flow of gas at the site of an incident may be able to save the life of someone who has been knocked unconscious or has been otherwise incapacitated. Because of this, PHMSA still believes that installing EFVs and curb valves on service lines can provide a tangible safety benefit to the public and the environment.

Proposal: The NPRM proposed that each operator must install an EFV on any new or replaced service line for the services listed in the proposed § 192.383(b) before those lines were activated and prior to January 3, 2014.

Comments: Several operators and trade associations, including AGA, NS, and APGA, noted that the effective date for the proposed rule would impose the installation requirement retroactively. These commenters requested that operators be given at least 6 months to prepare for complying with the rule, including time to establish cost allocation with the appropriate rate-setter and to source the valves.

PHMSA Response: This portion of the rule was drafted with the 2012 statutory mandate in mind and did not necessarily indicate a retroactive requirement. PHMSA has revised the effective date in the final rule to allow operators 6 months to comply.

Proposal: The NPRM proposed that operators need not install an EFV if one or more of the following conditions were present: (1) The service line does not operate at a pressure of 10 psig or greater throughout the year; (2) the operator has prior experience with contaminants in the gas stream that could interfere with the EFV's operation or cause loss of service to a customer; (3) an EFV could interfere with necessary operation or maintenance activities, such as blowing liquids from the line; or (4) an EFV meeting performance standards in § 192.381 is not commercially available to the operator.

Comments: The AGA and APGA noted that because of these exemptions, operators should not be required to provide an individual notification to customers of their right to request an EFV if it is not feasible to install an EFV on that customer's service line. The APGA also noted that if most operators chose to satisfy the notification requirement through customer bills or other mass communication, every customer would still receive notification, regardless of whether EFV installation were impossible or impractical. The APGA also believed that PHMSA should reconsider applying the proposed requirements for the right to request an EFV and customer notification to master-meter operators. As master-meter operators typically serve “garden-style” apartments, mobile home parks, universities, public housing, et cetera, the “customer” is typically a renter and not an owner, which could potentially cause confusion as to who has the right to request an EFV.

The AGA and SPPC asked that PHMSA consider exempting service lines that already had manual valves on them or lines where an operator might expect the load to increase beyond 1,000 SCFH and would install a manual valve instead.

PHMSA Response: PHMSA noted that the AGA and APGA comments were submitted under the assumption that PHMSA was requiring individual communications to all customers. As the APGA noted, because PHMSA is allowing broad and electronic communication methods regarding EFV installation, all customers, regardless of their eligibility for EFV installation, will be receiving a form of notice. Further, PHMSA has determined that master-meter operators will largely be held to the same standards as other operators as far as EFV installation is concerned.

PHMSA does not wish to include any further exceptions to the ones that were proposed. PHMSA is concerned that operators might interpret the fact that a service line already has a manual valve to mean that an EFV does not need to be installed. This would be an incorrect assumption. Applicable new and replaced service lines with loads not exceeding 1,000 SCFH must have EFVs installed on them. Moreover, as PHMSA is allowing installation flexibility for lines operating above 1,000 SCFH, the agency believes it is unnecessary to provide a specific exemption for installing an EFV when the line could be expected to operate above 1,000 SCFH.

Comments: Several commenters requested definitions or clarification for a few terms in the NPRM. Specifically, SPPC asked PHMSA to add a definition of “branch service line” to § 192.383(a). The APGA noted that SFR is not defined in part 192 and that PHMSA should add it to the definitions or spell out the term when used. The APGA also noted that PHMSA does not define who the “customer” is whom the operator must notify and who has the right to request an EFV. The APGA noted that, in the preamble, PHMSA states that messages on bills would satisfy the notification requirement, which appears to intend that the customer is the person to whom the utility sends the gas bill. The APGA urged PHMSA to clarify this definition if this is the case, as the term “customer” might also be interpreted to mean the consumer of the gas, a resident at a rented property, or perhaps the owner of a property. These could all be different people. The GPTC recommended adding a reference to proposed § 192.385(b) and (c) to refer back to § 192.383 and PHMSA's definition of replaced service line. MAE recommended PHMSA revise § 192.381(a) to clarify whether EFVs are required for systems that normally operate at 10 psig but that have minimum design pressures of 5-6 psig for anticipated heavy-load conditions.

PHMSA Response: PHMSA has added a definition of “branch service line” to the definitions paragraph of § 192.383 and spelled out “SFR” the first time it is used.

While PHMSA does not delineate who the “customer” is in the regulatory text, the APGA is correct in that PHMSA intends the “customer” to be the person to whom the utility sends the gas bill.

PHMSA declined to add a reference in proposed § 192.385(b) and (c) back to § 192.383 regarding PHMSA's definition of a replaced service line. PHMSA intends curb valves installed under § 192.385 to be appropriate substitutes for EFVs and are not otherwise considered manual valves within the distribution network.

Regarding MAE's comment, the language indicating that EFVs are to be used on service lines operating continuously throughout the year at a pressure not less than 10 p.s.i. (69 kPa) gage has been in the regulations since 1996. The only change that has been made since that time is the removal of the term “single-family” from “service lines.” PHMSA is aware, however, there are service lines that experience pressure drops below 10 psig during heavy loading conditions. These lines are not required to have EFVs installed on them.

Comments: NS suggested that proposed language concerning a mutually agreeable installation date should be moved to proposed § 192.383(e), which deals with notification requirements. The APGA was not clear on what “EFV measures” the reporting requirement refers to. The APGA suggested this is not a new reporting requirement but rather refers to the existing EFV reporting requirements in § 191.11 and should either be deleted or clarified to make clear that it only applies to operators that are required to file annual reports.

PHMSA Response: PHMSA considered these changes and made edits to the regulatory text where appropriate.

Comments: The GPTC noted that while it appreciated PHMSA's reference to the GPTC and its work, it still sought to clarify that the GPTC's Guide Material Appendix 192-8, which provides operators with guidance for developing a distribution integrity management program and compliance with certain sections of part 192, does not include information on the selection, sizing, or installation of EFVs. They noted that helpful guidance to assist operators in addressing EFV performance, selection, and installation considerations is found in MSS SP-115, ASTM F1802, and ASTM F2138. The GPTC also suggested that if PHMSA wants specific standards to be developed, then PHMSA should approach those organizations to develop such standards.

The NGA commented that it did not believe that development of EFV standards was needed and that the development of design considerations would best be performed by the utilities themselves or by standards-setting organizations, based on EFV manufacturer specifications considering customer load, meter size, service pipe size, and pressures.

PHMSA Response: PHMSA solicited comments in the gas pipeline ANPRM on whether standards should be developed for EFVs. In the NPRM, PHMSA noted that it would not be incorporating by reference any new standards for EFVs into the Pipeline Safety Regulations but might do so in the future if the need arose.

This final rule is published under the authority of the Federal pipeline safety laws (49 U.S.C. 60101 et seq.). Section 60102 of title 49, U.S.C., authorizes the Secretary of Transportation to issue regulations governing the design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline service lines. Further, Section 60109(e)(3)(B) states that “the Secretary, if appropriate, shall by regulation require the use of excess flow valves, or equivalent technology, where economically, technically, and operationally feasible on new or entirely replaced distribution branch services, multifamily facilities, and small commercial service facilities.”

This final rule is a non-significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not reviewed by the Office of Management and Budget. This final rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034) because of substantial stakeholder interest in pipeline safety.

Executive Orders 12866 and 13563 require agencies regulate in the most cost-effective manner, make a reasoned determination that the benefits of the intended regulations justify its costs, and develop regulations that impose the least burden on society. PHMSA is providing the final Regulatory Impact Analysis (RIA) simultaneously with this rule, and it is available in the docket. The final RIA does not address the benefits and costs of the proposal to require operators to install EFVs on branched service lines providing gas service to SFRs because the benefits and costs of this proposal were addressed in the regulatory impact analysis for a previous rulemaking.8 The final RIA found that the estimated monetized benefits do not exceed the monetized costs in all cases. For the requirement of installing EFVs on new or replaced service lines providing gas service to multifamily residences, the monetized costs exceeded monetized benefits, even when using lower-bound cost estimates. PHMSA believes that the amendments are nevertheless justified by significant unquantifiable benefits, such as avoided evacuations and environmental damage from EFV-preventable incidents, including incidents that could not be included in the analysis because they do not meet PHMSA's reporting criteria. EFVs also provide protection against a low-probability but high-consequence incident that could inflict mass casualties.

PHMSA estimates a total impacted community of 4,448 operators for this rule (3,119 master meter/small LPG operators who will need to comply with notification requirements and 1,329 natural gas distribution operators who will need to install valves and comply with notification requirements) and 222,114 service lines per year on average. PHMSA assumed that valves do not have network effects; in other words, each EFV operates independently, and the costs and benefits of EFV installation simply scale linearly. The total annualized benefits of the rule are $5.5 million when discounted at 7 percent, while the total annualized costs are $10.6 million. At the 3 percent discount rate, the total benefits of the rule are $10.6 million, while the costs are $12.0 million.

The following table summarizes the annualized benefits and costs of this final rule:

Additional unquantified benefit areas include:

• Equity: Provides a fair and equal level of safety to members of society who do not live in SFRs;

• Additional incident costs avoided for which no PHMSA incident data are available:

• Mitigates the consequences (death, injury, property damage) of incidents when customer piping or equipment is involved and thus the incident would not be reflected in PHMSA records;

• Additional incident costs that are not recorded in incident reports, including costs of evacuations, emergency response costs, and business downtime;

• Environmental externalities associated with methane releases (discussed in the RIA Appendix);

• Peace of mind for operators and customers; and

• Protection against seismic events and intentional tampering.

Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866, Regulatory Planning and Review, of September 30, 1993. Additionally, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome. When developing this rule, PHMSA involved the public in the regulatory process in a variety of ways. Specifically, PHMSA considered public comments based on the proposals in the NPRM, addressed those comments in the docket, and discussed the proposals with the members of the GPAC and any public representatives in attendance.

This final rule is expected to produce a safety benefit that addresses a congressional mandate and a NTSB safety recommendation and which can be implemented at relatively minor cost; similar regulations have been effective when applied to single-family residences. Further, industry has already shown a willingness to expand EFV applications, recognizing that EFVs have the potential to avert high-cost, low-probability events that, while absent in the dataset for multifamily residences, can still occur.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). PHMSA issues pipeline safety regulations applicable to interstate and intrastate pipelines. The requirements in this rule apply to operators of distribution pipeline systems, which are primarily intrastate pipeline systems. Under 49 U.S.C. 60105, a State may regulate an intrastate pipeline facility or intrastate pipeline transportation after submitting a certification to PHMSA. Thus, State pipeline safety regulatory agencies with valid certifications on file with PHMSA will be the primary enforcers of the safety requirements proposed in this NPRM. Under 49 U.S.C. 60107, PHMSA provides grant money to participating States to carry out their pipeline safety enforcement programs. Although a few States choose not to participate in the natural gas pipeline safety grant program, every State has the option to participate. This grant money is used to defray additional costs incurred by enforcing the pipeline safety regulations.

PHMSA has concluded this final rule does not include any regulation that: (1) Has substantial direct effects on States, relationships between the national government and the States, or distribution of power and responsibilities among various levels of government; (2) imposes substantial direct compliance costs on States and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 (August 10, 1999; 64 FR 43255) do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities, unless the agency determines that a rule will not have a significant impact on a substantial number of small entities. This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of rules on small entities are properly considered.

This final rule requires gas pipeline operators to comply with the new EFV installation requirements. The Small Business Administration (SBA) criteria for defining a small business in the natural gas pipeline distribution industry is one that employs less than 1000 employees as specified in the North American Industry Classification System (NAICS) codes. The RFA defines “small governmental jurisdiction” as the government of a city, county, town, township, village, school district, or special district with a population less than 50,000.

To identify gas distribution operators affected by the proposed requirements that are small businesses or small governmental jurisdictions, PHMSA used information provided by Dun and Bradstreet. Dun and Bradstreet provides PHMSA with estimates of small business classifications based on SBA size standards for operators that file an annual report, along with a flag for public sector entities that is based on information such as entity name and NAICS code. These data indicate that approximately 60 percent of affected operators are public entities; among these, the share that are small governmental jurisdictions is not known. Among the private sector entities, approximately one-third are small entities according to the SBA size definition for their NAICS code. The most common of these is NAICS 221210, natural gas distribution, for which the standard is 1,000 employees. Overall, while the number of small entities is not known with precision, it appears to be substantial when considering gas distribution operators that are small businesses or small governmental jurisdictions, as well as the master meter and small LPG operators that are presumed to be small entities.

However, PHMSA determined that this rule does not have a significant economic impact on a substantial number of small entities. While the natural gas distribution industry includes many small entities, including both small businesses and small governmental jurisdictions, the impacts of the rule are clearly de minimus, both in relation to operator revenues and to the utility rate-payers to whom the incremental costs would ultimately be allocated. PHMSA's Regulatory Flexibility Analysis, which reached this determination, is available in the docket for this rulemaking.

Accordingly, the head of the agency certifies under Section 605(b) of the RFA that this final rule will not have a significant economic impact on a substantial number of small entities because the additional costs are minimal.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $147.6 million, adjusted for inflation, or more in any one year to State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the final rule. Installation of EFVs and curb valves significantly protects the safety of the public and is technically and economically feasible.

PHMSA analyzed this final rule in accordance with section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332), the Council on Environmental Quality regulations (40 CFR parts 1500-1508), and DOT Order 5610.1C, and has determined that this action will not significantly affect the quality of the human environment. An environmental assessment of this final rule, which explains this determination, is available in the docket.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

This final rule is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this final rule as a significant energy action.

Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. As a result of the requirements of this rulemaking, the following information collection impacts are expected:

PHMSA is revising § 192.383 to require the installation of EFVs on applications beyond SFRs that are currently required. Further, PHMSA is adding § 192.385, which would require the installation of manual service line shut-off valves. As a result, PHMSA wants to track the number of new installations related to these provisions on an annual basis. This will change the Gas Distribution Annual Report, which is contained in the currently approved information collection, titled “Annual Reports for Gas Distribution Operators,” identified under OMB Control Number 2137-0629. PHMSA is revising the Gas Distribution Annual Report to collect the number of EFVs installed on multifamily dwellings and small commercial businesses and the number of manual service line shut-off valves installed. Currently, operators are required to submit the total number of EFVs installed on SFRs and the total number of EFVs within their systems. Therefore, PHMSA does not expect operators to experience an increase in burden beyond that already incurred for the Gas Distribution Annual Report. PHMSA has submitted an information collection revision request to OIRA to cover the components of this data collection. The request is under review and pending approval. PHMSA will publish a subsequent notice in the Federal Register upon the approval of this collection.

Section 192.383 of this final rule will require operators to notify customers of their right to request the installation of EFVs. Operators have multiple options for fulfilling this requirement, including adding a short statement to customer bills, incorporating a public awareness message on the company Web site, incorporating the notification on bill stuffers or in new customer packets, and posting a notice in a prominent location (for master-meter/small LPG operators). PHMSA estimates that approximately half of the 6,237 operators categorized as either master-meter operators or small LPG systems will be impacted, resulting in 3,119 affected operators. This estimate is based on the premise that only half of these operators have systems that can accommodate an EFV. PHMSA also estimates that 1,329 gas distribution operators will be impacted. Therefore, PHMSA estimates a total impacted community of 4,448 (3,119 master-meter/small LPG operators and 1,329 gas distribution operators). PHMSA estimates that each impacted operator will take approximately 1 hour per year to create and complete this notification. PHMSA expects a vast majority of notifications to be made electronically, and, as such, expects the recordkeeping of these documents to be automatic and self-executing upon saving such documents. Consequently, PHMSA expects there to be no additional burden to the operator for saving the notifications for recordkeeping purposes. PHMSA estimates the total annual cost of this provision at $280,713 per year (4,448 operators * 1 hour/operator * $63.11/hour 9 ). PHMSA has submitted a new information collection request to OIRA to cover the components of this data collection. The request is under review and pending approval. PHMSA will publish a subsequent notice in the Federal Register upon the approval of this collection.

As a result of the changes listed above, PHMSA is submitting an information collection revision request as well as a new information collection request to OMB for approval based on the requirements in this final rule. These information collections are contained in the pipeline safety regulations, 49 CFR parts 190-199. The following information is provided for these information collections: (1) Title of the information collection; (2) OMB control number; (3) Current expiration date; (4) Type of request; (5) Abstract of the information collection activity including a description of the changes applicable to the rulemaking action; (6) Description of affected public; (7) Estimate of total annual reporting and recordkeeping burden; and (8) Frequency of collection. The information collection burden for the following information collection is requested as follows:

1. Title: Annual Reports for Gas Distribution Operators.

OMB Control Number: 2137-0629.

Current Expiration Date: May 31, 2018.

Type of Request: Revision.

Abstract: This information covers the collection of annual report data for gas distribution pipeline operators. This information collection will only be revised to reflect the amendment to the Gas Distribution Annual Report, which will allow operators to submit the number of EFVs that are installed in multifamily dwellings and small commercial businesses and the number of manual service line shut-off valves installed. PHMSA does not expect this revision to result in a burden-hour increase.

Affected Public: Gas Pipeline Operators.

Annual Reporting and Recordkeeping Burden:

Total Annual Responses: 1,446.

Total Annual Burden Hours: 23,136.

Frequency of Collection: On occasion.

2. Title: Customer Notifications for Installation of Excess Flow Valves.

OMB Control Number: TBD.

Current Expiration Date: Not Applicable.

Type of Request: New Information Collection.

Abstract: This new information collection will cover the reporting and recordkeeping requirements for gas pipeline operators associated with the requirement of operators to notify customers of their right to request the installation of excess flow valves.

Affected Public: Gas Pipeline Operators.

Annual Reporting and Recordkeeping Burden:

Total Annual Responses: 4,448 responses.

Total Annual Burden Hours: 4,448 hours.

Frequency of Collection: On occasion.

Requests for a copy of this information collection should be directed to Angela Dow, Office of Pipeline Safety (PHP-30), Pipeline and Hazardous Materials Safety Administration (PHMSA), 2nd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, Telephone 202-366-4595.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

In consideration of the foregoing, PHMSA is amending 49 CFR part 192 as follows:

I. Executive Summary A. Purpose and Summary of the Major Provisions

This rule makes nondiscretionary, ministerial changes to FMCSA regulations that are required by the FAST Act (Pub. L. 114-94, 129 Stat. 1312, December 4, 2015). The FAST Act made several notable changes to the grant programs administered by FMCSA. For example, it consolidated the Border Enforcement, New Entrant, and Performance and Registration Information Systems Management (PRISM) grants into the formula Motor Carrier Safety Assistance Program (MCSAP) grant. Each State is now required to fully participate in the PRISM program by October 1, 2020, as a condition to receive funding under MCSAP. The FAST Act also created a standalone High Priority financial assistance (High Priority) Program with two major purposes: activities related to motor carrier safety and Innovative Technology Deployment (ITD). The ITD program modifies and replaces the FMCSA's Commercial Motor Vehicle Information Systems and Networks (CVISN) program. Also, the Safety Data Improvement Program, which was previously a standalone grant program, has been merged into the High Priority Program. A full explanation of all changes made in this rule is included below in section III. FAST Act Provisions Implemented by this Rulemaking. A copy of the FAST Act has been placed in the docket for this rulemaking for reference.

The impact of the FAST Act provisions to certify eligibility and allocate MCSAP and High Priority Program funds considered both individually and in the aggregate does not cross the threshold of economic significance; therefore a cost-benefit analysis is not required.1

The economic impact of changes to make FMCSA's regulations consistent with the FAST Act provisions will not exceed the $100 million annual threshold specified by Executive Order 12866.2 FMCSA determines that any costs associated with this action are attributable to the non-discretionary statutory provisions. FMCSA's consideration of the net impact of the FAST Act provisions suggests that reimbursements for technology, staffing, enforcement, maintenance, and training activities related to FMCSA regulations should ease the economic burden on regulated entities. Consequently net impacts of these provisions are expected to be small and affect a small number of individuals and businesses.

This rule is based on the FAST Act. Certain provisions of the FAST Act made mandatory, non-discretionary changes to FMCSA programs. The majority of these statutory changes went into effect retroactively on October 1, 2015; the Agency published a final rule on July 22, 2016 (81 FR 47714) which made these changes. However, the changes made in sections 5101 and 5106 of the FAST Act, which affect the Agency's MCSAP grants, did not take effect until October 1, 2016. This final rule makes the nondiscretionary, conforming changes required by FAST Act sections 5101 and 5106, which also relate to the MCSAP. Publication of today's rule triggers the 3-year window for the States to adopt compatible provisions under FMCSA's MCSAP program. 49 CFR 350.331(d), 350.335(a)(2), and part 355, App. A.

It is necessary to make conforming changes to ensure that FMCSA's regulations are current and consistent with the applicable statutes. The provisions implemented in this final rule are required by the following sections of the FAST Act:

1. Section 5101 Grants to States.

2. Section 5106 Motor Carrier Safety Assistance Program Allocation.

FMCSA is authorized to implement these statutory provisions by delegation from the Secretary of Transportation in 49 CFR 1.87.

Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the APA, as provided in 5 U.S.C. 553(b) and (d). Section 553(b)(3)(B), allows an exception from these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest.” FMCSA finds that prior notice and opportunity for comment are unnecessary because the changes to the regulations found in this final rule are statutorily mandated, and the Agency is performing a nondiscretionary, ministerial act. For the same reason, FMCSA also finds that providing 30 day of advance notice prior to this rule becoming effective are unnecessary, pursuant to 5 U.S.C. 553 (d)(3).

FMCSA is aware of the regulatory reform requirements imposed by section 5202 of the FAST Act concerning public participation in rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain major rules, but because this final rule is not major, they are not applicable. In addition, the Agency finds that publication of an advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A) or completion of a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the public interest in accordance with the waiver provision in 49 U.S.C. 31136(g)(3).

This section describes the conforming changes required due to the FAST Act changes. Today's rule focuses on portions of the FAST Act that are non-discretionary.

FMCSA is also including here a table of affected sections of the Code of Federal Regulations (CFR), which will cross-reference corresponding requirements of the FAST Act. This table will make it easier for the reader to move back and forth between the revised regulations and the corresponding section(s) of the FAST Act.

Section 5101 of the FAST Act made several revisions to existing provisions found in title 49 of the United States Code (U.S.C.). Section 5101(a) enacted a new version of 49 U.S.C. 31102, renamed “Motor Carrier Assistance Program.” The changes made to section 31102 are outlined below. The FAST Act added the terms “Federally recognized Indian tribes and other persons” as those who could work in partnership with the Agency in 49 U.S.C. 31102(b)(1), so we are making corresponding changes in §§ 350.101, 350.103, and 350.107 of the regulations.

In 49 U.S.C. 31102(c)(2)(B), the FAST Act replaced the reference to the State motor vehicle safety agency with reference to a “lead State commercial motor vehicle safety agency.” FMCSA makes this change throughout part 350. In addition, the FAST Act changed section 31102(c)(2) by revising the order of subsections (A) through (Y) and added new subsections (Z) through (BB). These changes are reflected in §§ 350.201 and 350.211. Of particular note is subsection (Z), which requires “that the State agrees to fully participate in the Performance and Registration Information System Management under 49 U.S.C. 31106(b) not later than October 1, 2020” or “an alternative approach for identifying and immobilizing a motor carrier with serious safety deficiencies in a manner that provides an equivalent level of safety.” This provision is reflected in § 350.201(aa) and § 350.211(x).

The Fast Act moved the existing language of 49 U.S.C. 31102(b)(3) on disapproval of a State plan to subsection (i)(2) of U.S.C. 31102. The Agency updated the regulatory language in § 350.207 to reflect the changes.

The FAST Act added 49 U.S.C. 31102(f)(4)(B), which creates additional allowances for the States when determining their average levels of expenditure for purposes of maintenance of effort. States are allowed to exclude expenditures for activities related to border enforcement and new entrant safety audits. This addition is reflected in § 350.301(b)(2).

The FAST Act also added paragraph (h) of 49 U.S.C. 31102 (existing 31102(c)), to describe an additional area where the grants may be used to enforce other laws. Subsection (1)(B) includes the “detection of and enforcement actions taken as a result of criminal activity including the trafficking of human beings, in a commercial motor vehicle or by any occupant, including the operator.” The Agency updated the language in § 350.309 to reflect this change.

Section 31102(k)(2)(B)(i-iv) now specifies what percentage of MCSAP funds may be withheld when a State does not follow its submitted plan or fails to enforce State regulations adequately. These criteria are reflected in § 350.215.

Section 31102(l) is added by the FAST Act, and it describes the High Priority Program funded for the purposes of improved motor carrier safety and Innovative Technology Deployment. This is a financial assistance program, and, is available to a wider audience and described throughout part 350. For reference, the current Safety Data Improvement Program falls under this new High Priority program.

Section 31104 is revised by the FAST Act section 5101(c), and paragraph (b) describes the Federal and recipient shares of Federal financial assistance agreements as at least 85 percent. Paragraph (e) provides that the Secretary shall establish eligible activities for each Federal financial assistance agreement in a notice of funding availability. Paragraph (f) describes the period of availability for the Federal financial assistance agreements. Paragraph (g) describes the initial date of availability for the Federal financial assistance agreements.

Paragraphs (b) and (d)-(g) of section 5101 of the FAST Act do not require corresponding changes in the regulations at this time.

Section 5106 of the FAST Act requires the establishment of a working group to recommend a new MCSAP allocation formula reflecting certain factors specified in the statute. However, paragraph (d) of section 5106 outlines interim funding rules to be used until the new formula is established. The interim amount, calculated by utilizing the MCSAP allocation formula used in fiscal year 2016 plus the average of the funding awarded (or other equitable amounts) to a State in fiscal years 2013, 2014, and 2015 for border enforcement and new entrant grants, is reflected in § 350.323. Likewise, § 350.323 has been revised to include the caveat, also found in section 5106(d), that the initial amounts resulting from the calculation described above be adjusted to ensure that, subject to the availability of funding, for each State, the amount shall not be less than 97 percent of the average amount of funding received or other equitable amounts in fiscal years 2013, 2014, and 2015 for MCSAP grants, border enforcement grants, and new entrant grants.

The following is a description of the changes to Part 350 as a result of the requirements of the FAST Act. These changes are described in numerical order by CFR citation. FMCSA also made conforming changes to the regulatory language as well as editorial corrections, so that the regulations do not conflict with the FAST Act.

In accordance with the FAST Act, section 5101(a), adding section 31102(l), FMCSA changes the heading of § 350.101 to add a reference to a High Priority Program. Paragraph (a) is changed by adding the word “State” to clarify that it is referencing State safety rules, regulations and standards. Paragraph (b) is added to describe the High Priority Program.

In the undesignated introductory text of § 350.103, FMCSA adds a reference to “States, local government agencies, other political jurisdictions, federally recognized Indian tribes, and other organizations and persons” which are eligible for the High Priority Program, as stated in the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l).

FMCSA removes the definitions of “High Priority Activity Funds,” and “New Entrant Funds” Definitions are added for “Innovative Technology Deployment Funds,” “Lead State Agency,” “Level of effort,” “Maintenance of effort,” and “Plan.”

In the definitions of “10-year average accident rate” and “Accident rate,” the reference to FMCSA is changed to Federal Highway Administration.

In the definition for “Basic Program Funds,” the references for High Priority Activity Funds and New Entrant Funds are removed.

FMCSA adds the words “or the Plan” to the definition of “Commercial Vehicle Safety Plan (CVSP).”

FMCSA adds a definition for “New Entrant Safety Audits” to describe the requirement under the FAST Act, section 5101(a), amending 49 U.S.C. 31102(c)(2)(Y).

In the definition of “Operating Authority,” a reference to 49 U.S.C. 31144 is added.

“State or States,” is moved here from § 350.107 since it applies to all of part 350.

The heading for § 350.107 is changed to replace the word “jurisdictions” with “entities,” to add “under this part,” and to remove the reference to MCSAP.

The Agency redesignates the existing section as paragraph (a) and adds a reference to MCSAP at the beginning of the paragraph. The definition of “State or States,” is moved to the definition section in § 350.105.

In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l), we added a new paragraph (b) to section 350.107 that describes the entities eligible for funding in the High Priority Program.

FMCSA adds “Motor Carrier Safety Assistance Program (MCSAP)” to the heading of § 350.109 to clarify that the elements apply to the MCSAP Program.

In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l), the Agency adds § 350.110 to describe the national High Priority Program elements.

The FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(A-BB) requires amendments to the conditions a State must qualify for MCSAP funds.

In § 350.201, the adjective MCSAP is added to the heading. In paragraph (a) the words “standards, and orders” are added. Paragraph (b) is not changed. The word “Lead” is added to paragraph (c) to reflect the agency responsible for the plan throughout the States. In paragraphs (d) and (e), the words “standards, and orders” are added to reflect the statutory language.

Paragraph (f) is rewritten to cross-reference the maintenance of effort requirements now re-codified in § 350.301 in accordance with FAST Act section 5101(a), adding 49 U.S.C. 31102(f). In paragraph (g), the words “legal authority for” are removed. The Agency removes the words “prepare and submit” and replaces them with “provide” in paragraph (h). Paragraph (i) is changed to reflect the language of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(G).

In paragraph (j) the word “declare” is replaced with “demonstrate.” Paragraph (k) has no changes. In paragraph (l) the words “other CMV safety enforcement programs” are replaced with “development and implementation of the programs to improve motor carrier, CMV, and driver safety.” Paragraph (m) is unchanged.

Paragraph (n) reflects the addition of the words “and data systems” to “FMCSA information technology.” No changes are made to paragraphs (o) and (p). Paragraph (q)(1) and (2) are the same, however, section 5101(a) of the FAST Act adding 49 U.S.C. 31102(c)(2)(O), required a change to (3) to reflect “activities related to criminal interdiction,” not only those “affecting the transportation of controlled substances.”

Existing paragraph (r) is removed. Existing paragraph (s) becomes new paragraph (r) and is not changed. Existing paragraph (t) becomes new paragraph (s) and is changed by updating the citations. New paragraph (t) is moved from existing paragraph (u) and simplified. Existing paragraph (v) becomes new paragraph (u) and removes the words “MCSAP agencies have policies that stipulate.” New paragraph (v) is existing paragraph (w) revised. Existing paragraph (x) is now new paragraph (w) with introduction of “provide that the State will.” In making these changes, paragraphs (r) and (v) are no longer conditions of participation.

New paragraph (x) is derived from existing paragraph (y) with the addition of “excluding a weigh station,” as required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). New paragraph (y) is existing paragraph (z) with changed CFR citations and one additional U.S.C. citation. New paragraphs (z), (aa), (bb), and (cc) are copied directly from the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(Y-BB).

The contents of existing § 350.329 are moved to new § 350.203. The changes and the reorganization conform to the requirements of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l). The heading of the section is changed; it uses the term “applicant,” clarifying that High Priority program funding is available to other entities identified in § 31102(l)(2), in addition to “a State or local agency,” Paragraph (a) is unchanged. FMCSA changes the introductory text of paragraph (b), using the term “applicants” rather than “local agencies” and providing a cross reference. Paragraphs (b)(1) through (4) and (b)(6) through (9) are mostly unchanged from the existing rule; however, clarifying language was added to expand the range of entities eligible for High Priority Program funds. As required by section 31104(b), as amended by the FAST Act section 5101(c), in paragraph (b)(5), FMCSA lowered the amount that an applicant must agree to fund from 20 percent to 15 percent.

FMCSA requires the State to submit its commercial vehicle safety plan “to FMCSA,” instead of to “the Division Administrator/State Director.”

As stated in the FAST Act section 5101(c), amending 49 U.S.C. 31104(e), FMCSA adds a new § 350.206 to demonstrate that FMCSA will publish a Notice of Funding Availability (NOFA) to establish criteria for eligible activities to be funded under the High Priority Program, paralleling § 350.205.

To conform to the language of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(i), FMCSA changes paragraph (b) by adding that FMCSA will give the State a written explanation for withholding approval and allow the State to modify and resubmit the Plan. In paragraph (c), FMCSA adds that disapproval of the Plan is final only for “that fiscal year.” Paragraph (d) is unchanged.

The FAST Act did not amend the current process, but separated the MCSAP and High Priority Programs (section 5101(a), adding 49 U.S.C. 31102(l)). FMCSA adds a new § 350.208 to state the response an applicant will receive to a grant application, paralleling § 350.207 to demonstrate the separation of the MCSAP and High Priority Grant Programs. Paragraph (a) covers grant approvals, and paragraph (b) covers grant denials.

FMCSA adds new § 350.210 to refer applicants for High Priority Program Funding to new § 350.203, which describes the conditions the applicant must meet to qualify, which were established in 49 U.S.C. 31102(l), and to parallel existing § 350.209.

Section 350.211 describes the format of the certification required by § 350.209. It is revised and reorganized to conform to the language of the FAST Act, section 5101(a), amending 49 U.S.C. 31102. The introductory text is unchanged. In paragraph ((a), FMCSA added references to “standards and orders” and “the standards and orders of the Federal Government.” In ((b), the language was changed to include references to “Lead State Agency” and standards and orders. Paragraph (c) is changed by adding a reference to standards and orders. In paragraph (d), FMCSA adds “or other method a State may use that is adequate to obtain the necessary information” as an alternative to right of entry. Paragraph (e) is not changed. In (f), FMCSA adds a reference to “investigations.” Paragraph (g) is modified by substituting the word “demonstrate” for “declare.” Paragraph (h) is based on existing paragraph 8, but completely changed to conform to the FAST Act, section 5101(a), creating 49 U.S.C. 31102(f). A new paragraph (i) is added to ensure States protect the effectiveness of programs to improve safety.

Existing paragraphs 9 through 14 are redesignated as new paragraphs (j) through (o), and conformed to the language of the FAST Act, section 5101(a), adding 31102(c)(2)(J)-(O). New paragraph (j) is unchanged. In new paragraph (k), the word “fines” is changed to the word “sanctions”; and the word “equitable” is changed to the word “reasonable” per section 5101(c) of the FAST Act. New paragraph (l) is changed by adding the requirement that the State “dedicate sufficient resources” to a program that provides FMCSA with information. In new paragraph (m), FMCSA adds a new reference to 23 U.S.C. 148(c). FMCSA adds “regulations” to the list of items a State should enforce in new paragraph (n). In new paragraph (o), FMCSA removes the reference to MCSAP Agencies. Existing paragraph 15 is removed.

New paragraph (p) is the same as existing paragraph 16. New paragraph (q) substitutes the word “registration” for the phrase “operating authority” throughout, and adds a reference to the U.S. Code. In paragraph (r), FMCSA states that the State “will cooperate in the enforcement of financial responsibility” rather than “enforce the financial responsibility requirements.” It also adds a reference to the U.S. Code and removes a cross reference to § 392.9a. Paragraphs (s) and (t) remain the same. Paragraph 21, new paragraph (u), is changed by adding language to clarify that station means bus station. The phrase “excluding a weigh station” is added to clarify that planned stops do not include weigh stations, as required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). In paragraph (v), cross references to the CFR are added.

Paragraphs (w) through (z) are new and required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(Y)-(Z). Paragraph (w) requires the State to conduct safety audits of new entrant motor carriers. The State must also verify the work of third parties that conduct safety audits on the State's behalf. Paragraph (x) provides that the State must certify that it either participates in the PRISM or demonstrates an alternative approach for identifying and taking action on out of service motor carriers.

As amended by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(AA), paragraph (y) provides that a border State must conduct a border CMV safety program or forfeit MCSAP funds based on border-related activities. In accordance with the FAST Act, section 5101(a) adding 49 U.S.C. 31102(c)(2)(BB), if a State meets all the MCSAP requirements and funds operations and maintenance costs associated with innovative technology deployment, paragraph (z) requires the State to certify that it agrees to comply with “all MCSAP requirements and funds operation and maintenance costs associated with Innovative Technology Deployment with MCSAP funds” and “Innovative Technology Deployment requirements established pursuant to 49 CFR 350.310 and 350.311.”

As required by the FAST Act, section 5101(a), creating 49 U.S.C. 31102(c)(2)(O), section 350.213(b)(3) is changed by adding the word “Criminal,” clarifying the type of interdiction activities, and changing the paragraph so it no longer covers only the transportation of controlled substances. The changes to paragraph (b)(4) include adding a reference to 49 U.S.C. 31134 and removing a reference to 49 CFR part 365. The paragraph now requires an applicant to certify that it will “cooperate in the enforcement of” financial responsibility requirements.

Pursuant to section 5101(a) of the FAST Act, adding 49 U.S.C. 31102(k), section 350.215(e) is completely revised. It now provides that an adverse decision will result in withdrawing approval of the plan and withholding all MCSAP funding or finding the State in noncompliance and withholding between 5 and 50 percent of the funding over the years of noncompliance. The remainder of the regulation remains unchanged.

Section 350.301(a) clarifies that the requirements apply each fiscal year to the “Lead State Agency.” It also clarifies that by “average aggregate expenditure” it means “level of effort.” Paragraph (b) is restated to allow States to exclude expenditures for federally sponsored demonstration and pilot CMV safety programs, strike forces, activities related to border enforcement, and for new entrant safety audits. However the State must exclude State matching funds, as currently required. Paragraph (c) contains language changes to conform to the FAST Act.

To comply with the FAST Act section 5101(a), adding 49 U.S.C. 31102(f), paragraphs (d) and (e) are added and paragraphs (a)-(c) are revised. Paragraph (d) allows States to use certain amounts as part of the State's maintenance of effort. Paragraph (e) provides that FMCSA may waive or modify the requirements of § 350.301 at the request of the State. Paragraph (e) provides that a State may request, and FMCSA may make, a reasonable adjustment to the level of effort required.

The heading of § 350.303 is revised to clarify that this section refers to both the MCSAP and High Priority Program. As required by FAST Act, section 5101(c), amending 49 U.S.C. 31104(b), new paragraph (a) increases the percent of eligible costs that FMCSA will reimburse from 80 percent to at least 85 percent. It changes the reference to “costs incurred in the administration of an approved CVSP” to “costs incurred under the MCSAP and High Priority Program.” Paragraph (b) makes language changes and also changes the cross reference from 49 CFR part 18, which has been removed, to 2 CFR part 200, the Office of Management and Budget provision dealing with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.” FMCSA adds paragraph (c) to provide that, when “. . . the amounts are not applied to the maintenance of effort required under § 350.301,”States may use amounts generated under 49 U.S.C. 14504a as part of the State's match required for MCSAP, as required in the FAST Act section 5101(a) which revised 49 U.S.C. 31102(g).

Section 350.305, including the heading, is changed by adding references to MCSAP to clarify that this section refers to MCSAP matching funds. The rest of the provision remains unchanged.

As required by the FAST ACT section 5101(c), amending 49 U.S.C. 31104(f), FMCSA adds a new § 350.308 to specify how long High Priority Program funds are available, paralleling existing § 350.307. Paragraph (a) describes how long funds for CMV safety activities will be available. Paragraph (b) states how long funds for Innovative Technology Deployment activities will be available.

In § 350.309, existing paragraph (c) becomes paragraph (c)(1), and the language is changed to conform to the FAST Act, section 5101(a), adding 49 U.S.C. 31102(h), In paragraph (c)(1)(ii), the reference to “controlled substance” is replaced with “criminal activity, including the trafficking of human beings.”

FMCSA moves the content of existing paragraph (d) to paragraph (c)(2), and revises it. In paragraph (c)(2)(i), the reference to fiscal year 2003 is removed. In paragraph (c)(2)(ii), the percent of MCSAP Basic funds available for enforcement activities related to non-CMVs is raised from 5 percent to 10 percent. FMCSA removes existing paragraph (d).

FMCSA adds new § 350.310 to describe the activities and programs eligible for funding under the new High Priority Program, in parallel with § 350.309. New § 350.310 contains some of the information in existing § 350.319, but has been revised and reorganized to reflect the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l). Paragraphs (a) through (e) provide a list of eligible activities. Paragraph (f) makes both Non-Lead State Agencies and Lead State Agencies supporting PRISM eligible for High Priority Program funding. Paragraph (g) states that the conduct of Safety Data Improvement Projects is an eligible activity for some entities and references the requirements for such a project. Paragraph (h) includes the improvement of CMV safety and compliance with regulations on the list of eligible activities. Paragraph (i) authorizes reimbursement for the implementation and maintenance of Innovative Technology Deployment of CMV information systems and networks.

FMCSA adds § 350.311(a) to provide that FMCSA shall establish criteria for eligible activities and publish those criteria in accordance with the FAST Act, section 5101(c), amending 49 U.S.C. 31104(e). Existing § 350.311 becomes new § 350.311(b), and language and cross references are changed from 49 CFR part 18, which has been removed, to 2 CFR part 200, the Office of Management and Budget provision dealing with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.”

FMCSA completely revises § 350.313 to reflect the new organization of grants under the FAST Act. Because of grant program consolidation under sections 5101(a) and 5101(c) of the FAST Act, MCSAP funds are now only allocated in two ways, so paragraphs (a) (1) and (2), (b) and (c) are deleted. The remaining language is unchanged but renumbered. Paragraph (a) provides that Basic Program Funds are allocated in accordance with § 350.323. Paragraph (b) specifies that Incentive Funds are allocated in accordance with § 350.327.

Existing § 350.319 is removed consistent with the FAST Act's revision of the High Priority Program, section 5101(a), adding 49 U.S.C. 31102(l). Some elements of this section are moved to § 350.310.

Section 350.321 is removed, consistent with section 5101(e) of the FAST Act's removal of New Entrant Funds as a separate grants program and inclusion of them under the general MCSAP funds.

FMCSA alters paragraph (a) by adding the word “First” to indicate the order in which these procedures occur. As required by the FAST Act, section 5106(d), paragraphs (b)-(d) are added. FMCSA adds a new paragraph (b) to provide that the funding for certain grants awarded to a State will be averaged. New paragraph (c) provides that the total amount of MCSAP Basic funding is the sum of the amounts in paragraphs (a) and (b). In new paragraph (d), FMCSA explains how and why the Agency will adjust the total amount of MCSAP Basic funding. New paragraph (e) includes part of existing paragraph (b), and the language remains unchanged by the FAST Act, but the table has been removed.

The contents of existing § 350.329 are moved to § 350.203 and revised. Existing § 350.329 is removed.

Section 331(a) is clarified and changed to provide that the State must submit copies of any new or amended State law or regulation on CMV safety to FMCSA, as well as review them. Existing paragraph (b) is removed, as it pertains to the review of a State law or regulation. Existing paragraphs (c) and (d) become new paragraphs (b) and (c). New paragraph (b) is changed by revising the introduction to remove the references to the “annual review” and the “annual CVSP,” instead referencing just the review and CVSP.

In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(k), in § 350.335, FMCSA combines existing paragraph (a), (b), and (d) into a new paragraph (a) and adds an introductory paragraph. In new paragraphs (a)(1) and (2), FMCSA removes the references to Basic Program Funds and Incentive Funds. In new paragraph (a)(3) the reference to Basic Program is changed to MCSAP Basic Program. Existing paragraph (c) is removed. Existing paragraph (e) becomes new paragraph (b)

FMCSA has determined that this final rule is not a significant regulatory action within the meaning of Executive Order (E.O.) 12866, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also not significant within the meaning of DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). As explained above, this final rule is strictly ministerial in that it incorporates nondiscretionary statutory requirements. These statutory changes went into effect on October 1, 2016. The regulatory changes included in this rule are necessary to make FMCSA's regulations consistent with the FAST Act, and their economic impact will not exceed the $100 million annual threshold. Any costs associated with this action are attributable to the nondiscretionary statutory provisions. This final rule is not expected to generate substantial congressional or public interest. Therefore, a full regulatory impact analysis has not been conducted, nor has there been a review by the Office of Management and Budget (OMB).

Although a full regulatory evaluation is unnecessary because the level of economic significance does not exceed the $100 million annual threshold, FMCSA considered the net impact of the FAST Act provisions implemented by this final rule. This rule's provisions provide reimbursements for technology, staffing, enforcement, maintenance, and training activities related to FMCSA regulations and should ease the economic burden on regulated entities. The net impacts of these provisions are expected to be small and affect a small number of individuals and businesses.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required to prepare a final regulatory flexibility analysis under 5 U.S.C. 604(a) for this final rule because the Agency has not issued a notice of proposed rulemaking prior to this action. FMCSA has determined that it has good cause to adopt the rule without notice and comment.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Thomas Liberatore, listed in the FOR FURTHER INFORMATION CONTACT section of this rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the SBA's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

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 $155 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2014 levels) or more in any 1 year.

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), nor does it revise any existing approved collections of information.

A rule has implications for Federalism under section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

FMCSA has determined that this rule would not impose substantial direct costs on States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce burden.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules to include an evaluation of the regulation's environmental health and safety effects on children, if the agency has reason to believe the regulation may disproportionately affect children. FMCSA has determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not pose an environmental or safety risk that would disproportionately affect children.

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have takings implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information (PII), and the Agency therefore finds that there will be no impact on the privacy of individuals.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program.

The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. FMCSA has therefore not conducted a privacy impact assessment.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this action.

FMCSA analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FMCSA determined that it is not a “significant energy action” under that E.O. because it is not economically significant and is not likely to have an adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

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

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

FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and FMCSA's NEPA Implementing Procedures and Policy for Considering Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 9680). FMCSA's Order states that “[w]here FMCSA has no discretion to withhold or condition an action if the action is taken in accordance with specific statutory criteria and FMCSA lacks control and responsibility over the effects of an action, that action is not subject to this Order.” Id. at chapter 1(D). Because Congress required the actions taken in this final rule, leaving the Agency no discretion or responsibility for its effects, this rulemaking is exempt from further analysis.

In addition to the NEPA requirements to examine impacts on air quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401, et seq.) also requires FMCSA to analyze the potential impact of its actions on air quality and to ensure that FMCSA actions conform to State and local air quality implementation plans. This non-discretionary action falls within the CAA de minimis standards and is not subject to the Environmental Protection Agency's General Conformity Rule (40 CFR parts 51 and 93).

Additionally, FMCSA evaluated the effects of this final rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impacts resulting from its promulgation. Environmental justice issues would be raised if there were a “disproportionate” and “high and adverse impact” on minority or low-income populations.

The Federal Motor Carrier Safety Administration published a document in the Federal Register on October 4, 2016 (81 FR 68336). This correction updates the amendments published on October 4, 2016. In rule FR Doc. 2016-22996, published on October 4, 2016 (81 FR 68336).

Accordingly, 49 CFR part 382 is corrected by making the following correcting amendments: