Federal Register Vol. 82, No.153,

Further information on these meetings will be posted on FSIS Web site at: https://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings and through the FSIS Constituent Update.

The final rule may be accessed from the FSIS Web site at: http://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/federal-register/interim-and-final-rules.

Registration: To pre-register for the either of meetings, please go to http://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings.

The cutoff dates for pre-registration is August 22, 2017.

On December 2, 2015, FSIS published the final rule to establish a mandatory inspection program for fish of the order Siluriformes and products derived from these fish (80 FR 75590). The final rule and other resources and information on Siluriformes fish can be found on the FSIS “Inspection Program For Siluriformes Fish, Including Catfish” Web page: https://www.fsis.usda.gov/wps/portal/fsis/topics/inspection/siluriformes.

The final rule was effective March 1, 2016; however, the Agency provided an 18-month transitional period until September 1, 2017, to give domestic establishments time to prepare and comply with the final regulations. The transitional period also provided foreign countries with time to submit the documentation necessary to continue exporting Siluriformes fish and fish products to the United States and to show that they have equivalent inspection systems.

FSIS began inspecting domestic establishments on March 1, 2016, and began selecting imported Siluriformes fish shipments for reinspection on April 15, 2016. During the transitional period, FSIS inspection personnel have exercised broad discretion in enforcing the regulatory requirements, focusing primarily on preventing adulterated or misbranded Siluriformes fish and fish products from entering commerce.

As of August 2, 2017, to abide with direction from Congress, all shipments of imported Siluriformes fish and fish products entering the United States must be presented at an Official Import Inspection Establishment for reinspection by FSIS personnel. Specifically, the explanatory statement accompanying the Consolidated Appropriations Act, 2017, Public Law 115-31 Stat. 135, enacted May 5, 2017, directed FSIS to immediately begin reinspecting all imported Siluriformes fish and fish product shipments https://www.congress.gov/crec/2017/05/03/CREC-2017-05-03-bk2.pdf). FSIS announced its intention to begin this reinspection in a Federal Register notice on July 3, 2017 (“Import Reinspection of Fish of the Order Siluriformes” (82 FR 30721)).

FSIS held a series of domestic and import educational meetings when the final rule initially published in December 2015. In June and July 2017, FSIS held additional educational meetings in Richmond, VA, and Baltimore, MD. FSIS has gained significant insight into the domestic and importing Siluriformes fish industries during the transitional period. FSIS is announcing this educational meeting to provide collect more information and to provide updates regarding full implementation of the regulatory requirements.

In addition, the Agency is interested in exchanging information with operations that process wild-caught Siluriformes fish and fish products, and encourages representatives and parties involved in this industry to attend the educational meetings. The Agency is particularly interested in gaining insight into how the wild-caught Siluriformes fish arrive at processing facilities, where the wild-caught Siluriformes fish are sourced, daily production volume information for these facilities, and where the final Siluriformes fish and fish products are being sold or distributed after processing.

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

Fax: (202) 690-7442.

Email: [email protected].

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Discussion

We have received 5 reports of uncontained engine failures and IFSDs due to failed connecting rods on various models of Lycoming Engines reciprocating engines listed in Table 1 of Lycoming Engines Mandatory Service Bulletin (MSB) No. 632B, dated August 4, 2017, that were overhauled or repaired using any replacement part listed in Table 2 of Lycoming Engines MSB No. 632B, dated August 4, 2017, which was shipped from Lycoming Engines during the dates listed in Table 2 of Lycoming Engines MSB No. 632B, dated August 4, 2017. This AD requires accomplishing the instructions in Lycoming Engines MSB No. 632B, dated August 4, 2017, except for the instruction to complete the online survey as specified in the MSB. This condition, if not corrected, could result in uncontained engine failure, total engine power loss, IFSD, and possible loss of the airplane. We are issuing this AD to prevent connecting rod failure.

Lycoming Engines Mandatory Service Bulletin (MSB) No. 632B, dated August 4, 2017. The MSB describes procedures for inspecting connecting rods and replacing connecting rod small end bushings. 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 are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information”.

Lycoming Engines MSB No. 632B, dated August 4, 2017 requires you to complete an online survey at www.lycoming.com/SB632, review your inventory of any part listed in Table 2 of the MSB, and sending certain parts to Lycoming Engines. This AD does not include those requirements.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because compliance is required within 10 operating hours. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2017-0788 and Product Identifier 2017-NE-27-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

We estimate that this AD affects 778 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

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

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

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

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

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

The owner of the bridge, the Connecticut Department of Transportation, requested a temporary deviation in order to facilitate repair and replacement of electrical conduits controlling span power lock and control.

The Washington Street S136 Bridge across the Norwalk River, mile 0.0 at Norwalk, Connecticut is a double-leaf bascule bridge with a vertical clearance of 9 feet at mean high water and 16 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.217(a).

The temporary deviation will allow the Washington Street S136 Bridge to remain closed from 7 p.m. on August 14, 2017 through 5 a.m. on August 15, 2017. The waterway is used primarily by seasonal recreational vessels and occasional tug/barge traffic. Coordination with waterway users has indicated no objections to the proposed short-term closure of the draw.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Coast Guard will enforce the safety zone for the annual Superior Man Triathlon in 33 CFR 165.943(a)(8) from 5:30 a.m. through 10 a.m. on August 27, 2017, on all waters of the Duluth Harbor Basin, Northern Section, including the Duluth entry encompassed in an imaginary line beginning at point 46°46′36.12″ N. 092°06′06.99″ W., running southeast to 46°46′32.75″ N. 092°06′01.74″ W., running northeast to 46°46′45.92″ N. 092°05′45.18″ W., running northwest to 46°46′49.47″ N. 092°05′49.35″ W. and finally running southwest to the starting point.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or her designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16 or via telephone at (218) 529-3100.

This document is issued under authority of 33 CFR 165.943 and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of the enforcement of this safety zone via Broadcast Notice to Mariners. The Captain of the Port Duluth or her on-scene representative may be contacted via VHF Channel 16 or via telephone at (218) 529-3100.

I. What action is EPA taking today?

On July 18, 2011, April 10, 2014, August 12, 2015, and January 20, 2016, SC DHEC submitted SIP revisions to EPA for approval that involve changes to South Carolina's NSR permitting regulations to make them consistent with federal requirements for NSR permitting, correct typographical errors, make internal references consistent, and clarify certain provisions. In this action, EPA is approving certain portions of these SIP submissions that make changes to South Carolina's NSR regulations at SC DHEC Regulation 61-62.5, Standard No. 7—“Prevention of Significant Deterioration (PSD),” and Regulation 61-62.5, Standard No. 7.1—“Nonattainment New Source Review (NNSR),” which apply to the construction or modification of any major stationary source in areas designated as attainment or unclassifiable as required by part C of title I of the CAA, and in nonattainment areas as required by part D of title I of the CAA, respectively.

South Carolina's PSD regulations at Regulation 61-62.5, Standard No. 7, were originally approved into the SIP on June 10, 1982 (47 FR 6017), with periodic revisions approved through April 3, 2013 (78 FR 19997). South Carolina's NNSR regulations at Regulation 61-62.5, Standard No. 7.1, were conditionally approved into the SIP on June 2, 2008 (73 FR 31369), and were fully approved on June 23, 2011 (76 FR 36875).

South Carolina's July 18, 2011, SIP revision modifies the PSD regulations to make minor edits for internal consistency and modifies the NNSR regulations to reflect changes to the federal NNSR regulations at 40 CFR 51.165,1 including provisions promulgated in the following federal rule: “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard-Phase 2; Final Rule To Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline,” Final Rule, 70 FR 71612 (November 29, 2005) (hereinafter referred to as the Phase 2 Rule). South Carolina's April 10, 2014, SIP revision modifies the PSD regulations to reflect changes to the federal PSD regulations at 40 CFR 51.166, including provisions promulgated in the following federal rule: “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5): 2 Amendment to the Definition of `Regulated NSR Pollutant' Concerning Condensable Particulate Matter,” (October 25, 2012) (hereinafter referred to as the PM2.5 Condensables Correction Rule). South Carolina's August 12, 2015, SIP revision makes changes to South Carolina's PSD and NNSR regulations for consistency with federal provisions and to correct typographical errors. Finally, South Carolina's January 20, 2016, SIP revision modifies the State's NNSR rules to correct typographical errors and to make internal references consistent.

At this time, the Agency is not acting on changes included in the July 18, 2011, submittal to the following regulations in South Carolina's SIP: Regulation 61-62.1, Section I—“Definitions;” Regulation 61-62.1, Section II—“Permit Requirements;” Regulation 61-62.3—“Air Pollution Episodes;” Regulation 61-62.5, Standard No. 1—“Emissions from Fuel Burning Operations;” Regulation 61-62.5, Standard No. 4—“Emissions from Process Industries;” or Regulation 61-62.5, Standard No. 6—“Alternative Emission Limitation Options (Bubble).” EPA approved the changes to Regulation 61-62.5, Standard No. 2—“Ambient Air Quality Standards,” included in the July 18, 2011, submittal, on April 3, 2013 (78 FR 1994). EPA is not acting on the changes included in the April 10, 2014, submittal to the following regulations: Regulation 61-62.1, Section I—“Definitions;” Regulation 61-62.2—“Prohibition of Open Burning;” Regulation 61-62.5, Standard No. 7—“Prevention of Significant Deterioration,” at paragraph (b)(32)(i)(a); 3 or Regulation 61-62.6—“Control of Fugitive Particulate Matter.” EPA is not acting on the changes included in the August 12, 2015, submittal to the following regulations: Regulation 61-62.5, Standard No. 1—“Emissions from Fuel Burning Operations,” or Regulation 61-62.5, Standard No. 2—“Ambient Air Quality Standards.” Additionally, EPA is not acting on the changes included in the January 20, 2016, submittal to the following regulations: Regulation 61-62.1, Section II—“Permit Requirements;” Regulation 61-62.5, Standard No. 5—“Volatile Organic Compounds;” or Regulation 61-62.6—“Control of Fugitive Particulate Matter.” EPA will address these proposed changes to the South Carolina SIP in a separate action.

The August 12, 2015, submittal includes a change to South Carolina's NNSR regulation, Regulation 61-62.5, Standard No. 7.1 at paragraph (d)(1)(C)(v)(b)(2) regarding the calculation of emission offsets. However, this change had previously been submitted to EPA on April 14, 2009, in response to a June 2, 2008, conditional approval of the NNSR program revisions (73 FR 31368), and was approved on June 23, 2011 (76 FR 36875). Therefore, this change is not presently before EPA for consideration.4 There are other changes to the NNSR regulation included in the August 12, 2015, submittal that EPA is approving in this action, as detailed in Section III of this preamble.

EPA is not acting on the following changes originally included in the August 12, 2015, submittal because they have been withdrawn from EPA's consideration via a December 20, 2016, letter. The August 12, 2015, submittal originally included new language in Regulation 61-62.5, Standard No. 7 at paragraphs (b)(30)(v) and (b)(34)(iii)(d) to exclude fugitive emissions from the determination of creditable emission increases and decreases. This submittal also originally included a revision to the definition of “best available control technology (BACT)” in Regulation 61-62.5, Standard No. 7 at paragraph (b)(8), which reverted language in the definition to that included in a previous version of the South Carolina regulations. Both sets of revisions were withdrawn from EPA's consideration subsequent to the August 12, 2015, final submittal in the December 20, 2016, letter. Finally, a revision to the definition of “net emissions increase” in Regulation 61-62.5, Standard No. 7 at paragraph (b)(34)(iii)(c) was withdrawn in a June 27, 2017, letter. Both the December 20, 2016, and June 27, 2017, letters are included in the docket for this action.

This direct final action will revise South Carolina's PSD and NNSR regulations in the SIP as described in Section III, below. Many of these changes are administrative in nature, including updating internal references and correcting typographical errors. The July 18, 2011, SIP revision also makes changes to the NNSR regulations to adopt provisions from EPA's Phase 2 Rule for ozone nonattainment areas. The April 10, 2014, submittal makes changes to PSD regulations to reflect EPA's PM2.5 Condensables Correction Rule. Background information on these federal rules is provided below.

Part of South Carolina's July 18, 2011, SIP submittal to revise its NNSR regulations relates to EPA's Phase 2 Rule regarding updates to the implementation of the 1997 8-hour Ozone NAAQS. On November 29, 2005, EPA published the Phase 2 Rule, which addressed control and planning requirements as they applied to areas designated nonattainment for the 1997 8-hour ozone NAAQS 5 such as reasonably available control technology, reasonably available control measures, reasonable further progress, modeling and attainment demonstrations, NSR, and the impact to reformulated gas for the 1997 8-hour ozone NAAQS transition (70 FR 71612). The NSR permitting requirements established in the rule included the following provisions: (1) Recognized nitrogen oxides as an ozone precursor for PSD purposes; (2) changes to the NNSR rules establishing major stationary source thresholds (marginal, moderate, serious, severe, and extreme nonattainment area classifications) and significant emission rates for the 8-hour ozone, PM10, and carbon monoxide NAAQS; and (3) revised the criteria for crediting emission reductions credits from operation shutdowns and curtailments as offsets, and changes to offset ratios for marginal, moderate, serious, severe, and extreme ozone nonattainment areas. For additional information on provisions in the Phase 2 Rule, see the November 29, 2005, final rule (70 FR 71612).

On May 16, 2008, EPA finalized the rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” Final Rule, 73 FR 28321 (May 16, 2008) (hereinafter referred to as the NSR PM2.5 Rule). The NSR PM2.5 Rule revised the federal NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. South Carolina previously adopted most of the provisions promulgated in the NSR PM2.5 Rule, as approved on June 23, 2011 (76 FR 36875).

In the NSR PM2.5 Rule, EPA revised the definition of “regulated NSR pollutant” for PSD to add a paragraph providing that “particulate matter (PM) emissions, PM2.5 emissions, and PM10 emissions” must include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures and that on or after January 1, 2011, such condensable particulate matter must be accounted for in applicability determinations and in establishing emissions limitations for PM, PM2.5 and PM10 in permits. See 73 FR 28348-49 (changes made to 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi), and 40 CFR part 51, Appendix S—Emissions Offset Interpretative Ruling). A similar paragraph added to the NNSR rule does not include the phrase “particulate matter (PM) emissions” or the term “PM”6 within the definition of “regulated NSR pollutant.” See 73 FR 28347.

On October 25, 2012, EPA finalized a rulemaking to amend the definition of “regulated NSR pollutant” promulgated in the NSR PM2.5 Rule regarding the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i), and 40 CFR part 51, Appendix S—“Emissions Offset Interpretative Ruling.” 77 FR 65107. The rulemaking simply removed the phrase “particulate matter (PM) emissions” and the term “PM” from the definition of “regulated NSR pollutant” in these rules thereby eliminating the inadvertent requirement in the NSR PM2.5 Rule that the measurement of condensable “particulate matter (PM) emissions” be included as part of the measurement and regulation of condensable PM for the NAAQS. The phrase “particulate matter (PM) emissions” includes particles that are larger than PM2.5 and PM10 and is an indicator measured under various New Source Performance Standards (NSPS) (40 CFR part 60).

South Carolina's July 18, 2011, SIP revision made changes to the PSD regulation, Regulation 61-62.5, Standard No. 7, to make internal references consistent. These changes are made to Standard No. 7 at paragraphs (q)(2) and (q)(3)—“Public participation;” (r)(4)—“Source obligation;” and (w)(1)—“Permit rescission” and were state effective on May 27, 2011. EPA is approving these administrative edits to the SIP.

This SIP submittal also made changes to the NNSR regulation, Regulation 61-62.5, Standard No. 7.1, at paragraph (c)(7)(A)(i), adopting thresholds in the definition of “major stationary source” for different classifications of ozone nonattainment areas (as codified at 40 CFR 51.165(a)(1)(iv)(A)(1)). These thresholds correspond to precursors of ozone in “serious” and “extreme” nonattainment areas. EPA is approving these changes to the NNSR regulations as consistent with the Phase 2 Rule. South Carolina adopted other provisions promulgated in the Phase 2 Rule previously, and EPA approved them into the South Carolina SIP on June 2, 2008 (73 FR 31368) and June 23, 2011 (76 FR 36875).

EPA has concluded that incorporating these change into the SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA. The changes to Regulation 61-62.5, Standard No. 7 are administrative in nature, and the changes to Standard No. 7.1 increase the number of sources potentially subject to NNSR permitting by establishing lower emissions thresholds.

South Carolina's April 10, 2014, SIP revision made changes to the definitions in the PSD regulation, Regulation 61-62.5, Standard No. 7. The only changes that EPA is adopting from the April 10, 2014, submittal in this rulemaking are at paragraph (b)(44) regarding the definition of “regulated NSR pollutant.” These changes were state effective on December 27, 2013. This definition is revised to be consistent with the PM2.5 Condensables Correction Rule, detailed in Section II, above, by removing the phrase “particulate matter (PM) emissions” and the term “PM” which were originally included in the federal definition in error and by rearranging the formatting structure of the definition.

A March 14, 2011, SIP submittal adopted provisions promulgated in the NSR PM2.5 Rule, as approved into the SIP on June 23, 2011 (76 FR 36875). This previous approval also adopted the phrase “particulate matter (PM) emissions” and the term “PM” as promulgated in error in the PM2.5 NSR Rule. The April 10, 2014, submittal in effect only removes the problematic language to be consistent with the current federal definition and rearranges the definition because EPA approved the remaining changes to (b)(44) in the June 23, 2011, action discussed above.

In today's action, EPA is approving the changes that remove the phrase “particulate matter (PM) emissions” and the term “PM” and that rearrange the formatting structure of the definition for consistency with the PM2.5 Condensables Correction Rule. EPA has concluded that incorporating these change into the SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA. The changes merely correct an inadvertent error in the PSD regulations as discussed above.

The August 12, 2015, SIP revision modifies the definitions of “baseline actual emissions” and “projected actual emissions” in Regulation 61-62.5, Standard No. 7 at paragraphs (b)(4)(i)(a), (b)(4)(ii)(a), and (b)(41)(ii)(b) and in Standard No. 7.1 at paragraphs (c)(2)(A)(i), (c)(2)(B)(i), and (c)(11)(B)(ii) to include emissions associated with “malfunctions” in determining PSD and NNSR applicability, respectively. These changes were state effective on June 26, 2015.

EPA added malfunction emissions to the federal definitions of “baseline actual emissions” and “projected actual emissions” as part of its NSR reform rules.7 In its July 1, 2005, SIP revision addressing NSR reform, the State sought to exclude this change from its SIP-approved PSD and NNSR regulations. The State's primary motivation for seeking the exclusion was its belief that it would be difficult for the regulated community to predict and quantify malfunction emissions when estimating projected actual emissions. EPA conditionally approved South Carolina's SIP revision on June 2, 2008 (73 FR 31368), noting in the associated September 12, 2007, notice of proposed rulemaking (72 FR 52031) that the exclusion of malfunction emissions did not lessen the stringency of the State's NSR program. South Carolina updated its regulations in a submittal dated April 14, 2009, to satisfy the conditional approval, resulting in a formal approval on June 23, 2011 (76 FR 36875).

South Carolina's August 12, 2015, submittal seeks to add malfunction emissions to the definitions of “baseline actual emissions” and “projected actual emissions” in its SIP-approved PSD and NNSR regulations. The State retains the requirement that “baseline actual emissions” exclude any non-compliant emissions that occur while the source was operating above any emission limitation that was legally enforceable during the 24-month period used to calculate baseline emissions. EPA has concluded that incorporating these changes into the SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA. The State is requesting the change for consistency with the federal rules because the discrepancy was causing confusion among the regulated community and because the regulated community had not substantiated the State's initial concerns regarding the potential difficulty in projecting malfunction emissions. In its July 1, 2005, SIP submittal, the State concluded that there would be no environmental benefit to excluding malfunction emissions from the definitions at issue because the inclusion of malfunction emissions in both baseline actual emissions and projected actual emissions “would cancel each other out because they typically would be the same before and after a change.8 ” In correspondence associated with the August 12, 2015, submittal, the State affirms that the exclusion has provided no environmental benefit.9 Furthermore, EPA notes that there are no nonattainment areas in South Carolina, and that air quality is below the NAAQS for all criteria pollutants.10

The August 12, 2015, submittal made other changes to the PSD regulation, Regulation 61-62.5, Standard No. 7, to correct typographical errors, clarify certain provisions, and mirror Federal provisions. These changes are made to the following paragraphs: (a)(2)(iv)(f) Regarding “Applicability procedures;” (b)(5)(ii)(b), (b)(32)(i)(a), and (b)(34)(vi)(c) regarding the definitions of “baseline area,” “major stationary source,” and “net emissions increase,” respectively; (i)(8)(ii) and (i)(10)—“Exemptions;” (m)(1)(i)(a) regarding “Air quality analysis;” (n)(1) regarding “Source information;” (u)(4) regarding class III areas; and (aa)(6)(ii) and (aa)(8)(ii)(b)(2) regarding “Actuals [Plantwide Applicability Limits] PALs.” The August 12, 2015, submittal made other changes to the NNSR regulation, Regulation 61-62.5, Standard No. 7.1, at paragraph (i)(6)(ii) regarding “Actuals PALs” for consistency with Federal regulations. EPA is approving these changes to the SIP with the exception of the change to Regulation 61-62.5, Standard No. 7, paragraph (b)(32)(i)(a) as noted in Section I, above. EPA has concluded that incorporating these changes into the SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA. These changes are primarily administrative and do not substantively impact applicability requirements or emissions from subject units.

The January 20, 2016, submittal made changes to the NNSR regulation, Regulation 61-62.5, Standard No. 7.1, only to correct typographical errors and to make internal references consistent. These changes, state effective on November 27, 2015, are made to paragraphs (c)(6)(C)(v)(a) and (c)(7)(A)(i)(d) regarding the definitions of “major modification” and “major stationary source;” and paragraph (d)(1)(C)(viii) regarding “Permitting requirements.” EPA is approving these changes to the SIP. EPA has concluded that incorporating these changes into the SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA because the changes are administrative in nature.

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 the SC DHEC regulatory paragraphs identified above in Section III within SC DHEC Regulation No. 61-62.5, Standard No. 7, entitled “Prevention of Significant Deterioration,” state effective on May 27, 2011 (paragraphs identified in Section III.A, above), December 27, 2013 (paragraphs identified in Section III.B, above), and June 26, 2015 (paragraphs identified in Section III.C, above), and the SC DHEC regulatory paragraphs identified above in Section III within Standard No. 7.1, entitled “Nonattainment New Source Review,” state effective on May 27, 2011 (paragraphs identified in Section III.A, above), June 26, 2015 (paragraphs identified in Section III.C, above), and November 27, 2015 (paragraphs identified in Section III.D, above). Therefore, these materials have been approved by EPA for inclusion in the SIP, 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.11 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).

EPA is approving the changes to the SIP identified in Section III, above, because they are consistent with the CFR and the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective October 10, 2017 without further notice unless the Agency receives adverse comments by September 11, 2017.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All adverse comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 10, 2017 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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).

In addition, this direct final action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not have substantial direct effects on an Indian Tribe. The Catawba Indian Nation Reservation is located within the state of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

On May 30, 2017 (82 FR 24617), EPA published a notice of proposed rulemaking (NPRM) for the District. In the NPRM, EPA proposed approval of the District's regional haze five-year progress report SIP, a report on progress towards RPGs, for the first implementation period. This progress report SIP and accompanying cover letter also included a determination that the District's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. No comments were received in response to EPA's proposed rulemaking notice.

States were required to submit, in the form of a SIP revision, a progress report every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions under 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing regional haze SIP. On October 27, 2011, DOEE submitted its first regional haze SIP in accordance with the requirements of 40 CFR 51.308 as they existed at the time. The progress report SIP revision was submitted by DOEE on March 2, 2016 and EPA finds that it satisfies the requirements of 40 CFR 51.308(g) and (h).

On March 2, 2016, the District submitted a SIP revision to address progress made towards RPGs. This progress report SIP submittal also included a determination of the adequacy of the District's existing regional haze SIP.

The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. EPA finds that the District's progress report SIP addressed each element under 40 CFR 51.308(g). The seven elements and EPA's conclusion are briefly summarized later in this preamble; however, the detailed rationale for EPA's action is explained in the NPR and will not be restated here.

The provisions in 40 CFR 51.308(g) require progress reports SIPs to include a description of the status of measures in the approved regional haze SIP; a summary of emissions reductions achieved; an assessment of visibility conditions for each Class I area in the state; an analysis of changes in emissions from source and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the approved regional haze SIP; and a review of the state's visibility monitoring strategy. As explained in detail in the NPR, EPA finds that the District's progress report SIP submittal addressed each element and has therefore satisfied the requirements under 40 CFR 51.308(g).

In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report submission, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. One possible action is submission of a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed. In its progress report, the District submitted a negative declaration that it had determined that the existing regional haze SIP requires no substantive revision to achieve the RPGs for Class I areas. As explained in detail in the NPR, EPA concludes that the District adequately addressed 40 CFR 51.308(h) because decreasing emissions of visibility impairing pollutants, lack of Class I area impact from pollution sources within the District,1 and progress of regional Class I areas near the District towards RPGs for 2018 indicate that no further revisions to the District's SIP are necessary for this first regional haze implementation period. Therefore, EPA concludes that the District's progress report SIP meets the requirements of 40 CFR 52.308(h).

In accordance with section 110 of the CAA, EPA is approving the District's regional haze five-year progress report SIP revision, submitted on March 2, 2016, as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and (h).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2017. 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 to approve the District's regional haze five-year progress report SIP revision may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

On July 9, 2012, Alaska submitted a SIP to meet the infrastructure requirements of CAA sections 110(a)(1) and (2) for multiple NAAQS, including the Pb NAAQS. On May 31, 2017, the EPA proposed to approve the submission as meeting certain infrastructure requirements for the Pb NAAQS (82 FR 24914). Please see our proposed rulemaking for further explanation and the basis for our finding. The public comment period for this proposal ended on June 30, 2017. We received no comments.

The EPA is approving Alaska's July 9, 2012, SIP submission as meeting the following CAA section 110(a)(2) infrastructure elements for the 2008 Pb NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We note that this action does not address CAA section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS, which was approved on August 4, 2014 (79 FR 45103).

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

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

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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 CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2017. 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 CAA section 307(b)(2)).

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

The EPA is approving two source-specific State Implementation Plans (SIP) revisions for ozone submitted by the State of New Jersey. These SIP revisions relate to New Jersey's oxides of nitrogen (NOX) reasonably available control technology (RACT) determinations for the Transcontinental Gas Pipeline Corp., LNG Station 240 (Transco-240) located in Carlstadt, New Jersey in Bergen County and for Joint Base McGuire-Dix-Lakehurst (JB-MDL) located in Lakehurst, New Jersey in Ocean County. The determinations are for the four natural gas-fired water bath heaters (U7-U10) at the Transco-240 facility and the two natural gas-fired boilers (Nos. 2 and 3) at the JB-MDL facility. These SIP revisions were submitted to the EPA for approval by the New Jersey Department of Environmental Protection on July 1, 2014 and July 25, 2016 respectively.

On May 8, 2017 (82 FR 21343), the EPA proposed to approve New Jersey's two source-specific SIP revisions addressing NOX RACT requirements for the Transco-240 and the JB-MDL facilities. For a detailed discussion on the content and requirements of the revisions to New Jersey's two SIP revisions, the reader is referred to the EPA's proposed rulemaking action. In response to the EPA's May 8, 2017 proposed rulemaking action, the EPA received no public comments.

The EPA has determined that New Jersey's two SIP revision for the NOX RACT determinations for the affected sources at the Transco-240 and the JB-MDL facilities are consistent with New Jersey's NOX RACT regulation and the EPA's guidance. The EPA has determined that New Jersey's SIP revision will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Clean Air Act. Therefore, the EPA is approving the NOX emission limits and other requirements identified in New Jersey's Conditions of Approval document and alternative emission limit compliance plan for Transco-240 and JB-MDL, respectively. The NOX RACT requirements specify emissions limits, work practice standards, testing, monitoring, and recordkeeping/reporting requirements. These conditions are consistent with the NOX RACT requirements specified in Subchapter 19 of Chapter 27, Title 7 of the New Jersey Administrative Code and conform to the EPA's NOX RACT guidance.

More specifically, the EPA approves the current Conditions of Approval document for the four water bath heaters (U7-U10) at the Transco-240 facility which includes the following limits:

1. The alternative NOX emission limit (AEL) from each water bath heater, while combusting natural gas, shall not exceed 0.10 pounds per million British Thermal Units (lb/MMBTU);

2. The total NOX emissions from all four water bath heaters, while combusting natural gas, shall not exceed 6.7 tons per year;

3. The hours of operation for the four natural gas-fired water bath heaters shall be for a combined total of 1600 hours per year or less;

4. The four water bath heaters shall not be operated during the ozone season; and,

5. The flue gas recirculation control system shall operate at all times the heater is operating.

Also, the EPA approves the alternate emission limit compliance plan for the two natural gas-fired boilers (Nos 2 and 3) at the JB-MDL facility which includes the following limits:

1. An alternative NOX emission limit of 0.10 lb/MMBTU for boiler #2 and boiler #3 pursuant to N.J.A.C. 7:27-19.13; and,

2. A decrease in natural gas use from 181.43 to 108.6 million cubic feet (MMft3) per year for boiler #2 and from 113.04 to 57 MMft3 per year for boiler #3.

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: “Conditions of Approval, Alternative Emission Limit for NOX For Four (4) Water Bath Heaters, Transcontinental Gas Pipelines Corp., LNG Station 240, 718 Paterson Plank Road, Carlstadt Borough, Program Interest No. 02626,” approved by New Jersey Department of Environmental Protection on June 12, 2014 and “Revision to the NJ State Implementation Plan for Joint Base McGuire-Dix-Lakehurst (JB-MDL), Lakehurst, NJ” including Enclosure 2 (“AEL Compliance Plan”) (dated July 14, 2016) to Attachment I (“Site-specific and source specific NOX RACT SIP Information for Joint Base McGuire-Dix-Lakehurst (JB-MDL) (Lakehurst), for Boiler Nos 2 and 3”), permit activity number of BOP150001, approved by New Jersey Department of Environmental Protection on August 26, 2016. The summary of emission limits and other enforceable requirements for the two SIP revisions are included in section III (Conclusion) of this rulemaking. Therefore, these materials have been approved by EPA for inclusion in the SIP, 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. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2017. 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)).

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. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. What action is the Agency taking?

On January 22, 2013, FDEP submitted a SIP revision for EPA's approval addressing the CAA's infrastructure requirements for the 2010 1-hour NO2 NAAQS. In this action, EPA is approving a portion of Florida's infrastructure SIP submission related to the ambient air quality monitoring and data system requirements of section 110(a)(2)(B). EPA approved all other portions of Florida's January 22, 2013 infrastructure SIP submission in previous actions. See 80 FR 14019, March 18, 2015, and 81 FR 84479, November 23, 2016. Additionally, on February 3, 2017, Florida submitted a SIP submission addressing the provisions related to prongs 1 and 2 of section 110(a)(2)(D)(i) and EPA will act on that submission in a separate action. For the aspects of the portion of Florida's submittal being approved, EPA notes that the Agency is not approving any specific rule, but rather taking final action to approve that Florida's already approved SIP meets this CAA requirement.

By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of Title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D.

Sections 110(a)(1) and (2) require 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 newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The content of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NOX). NO2 is the component of greatest concern and is used as the indicator for the larger group of NOX. Emissions that lead to the formation of NO2 generally also lead to the formation of other NOX. Therefore, control measures that reduce NO2 can generally be expected to reduce population exposures to all gaseous NOX which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats.

States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.1 Through this action, EPA is approving Florida's January 22, 2013 submission as meeting the requirements of 110(a)(2)(B) for the 2010 NO2 NAAQS. As mentioned above, EPA has already taken final action on the remainder of Florida's January 22, 2013 submission.

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

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.2 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.3 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.4 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.5 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.6

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.7

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the “applicable requirements” of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the Prevention of Significant Deterioration (PSD) program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.8 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).9 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.10 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However, they are addressed by the state, the substantive requirements of Section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including Greenhouse Gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the Particulate Matter 2.5 (PM2.5) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; 11 (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.12 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.13

Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.14 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.15

Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. In its January 22, 2013, SIP infrastructure submittal, Florida cites F.A.C. Chapters 62-204, 62-210, 62-212 as establishing requirements for the use of Federal Reference Method or equivalent monitors and provides authority for FDEP to establish monitoring requirements through SIP-approved permits. In addition, states develop and submit to EPA for approval annual statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan, and includes a certified evaluation of the agency's ambient monitors and auxiliary support equipment.16 On June 30, 2017, Florida submitted its most recent plan to EPA, which was approved by EPA on July 24, 2017. Florida's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0507. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the ambient air quality monitoring and data system related and meet the requirements of sub-element 110(a)(2)(B) for the 2010 1-hour NO2 NAAQS.

EPA is taking a direct final action to approve a portion of Florida's January 22, 2013, SIP submission addressing the CAA infrastructure requirements for the 2010 1-hour NO2 NAAQS. Specifically, EPA is taking direct final action to approve the portions of Florida's January 22, 2013, SIP submission addressing section 110(a)(2)(B) of the infrastructure requirements, which requires SIPs to provide for the establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. EPA is approving this portion of Florida's infrastructure submission for the 2010 1-hour NO2 NAAQS because this submission is consistent with section 110 of the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective October 10, 2017 without further notice unless the Agency receives adverse comments by September 11, 2017.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All adverse public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 10, 2017 and no further action will be taken on the proposed rule.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 October 10, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

On June 25, 2015, the Commonwealth of Pennsylvania through the Pennsylvania Department of Environmental Protection submitted a formal revision to the Pennsylvania SIP. The SIP revision consists of amended versions of Allegheny County Health Department's (ACHD) regulations under Article XXI (Air Pollution Control), section 2101.20, “Definitions,” and section 2105.50, “Open Burning.” Allegheny County does not currently meet the federal air quality standards for fine particulate matter under 2.5 microns in size (PM2.5), including the 2015 PM2.5 national ambient air quality standard (NAAQS), as measured annually. Wood smoke contains air toxics and contributes to high levels of PM2.5 in Allegheny County. The revised regulations clarify and codify existing regulations regarding open burning in order to more effectively address emissions due to the numerous pollutants, including air toxics, found in wood smoke. The revised ACHD regulations, effective January 1, 2015, specify the following details related to various aspects of open burning: (1) Materials that may be burned; (2) the size of burn piles; (3) setback requirements; (4) use of chimineas, fire pits, and outdoor fireplaces; and (5) burning restrictions on air quality action days.

In the June 25, 2015 SIP submittal, Pennsylvania included revisions to Article XXI, sections 2101.20 and 2105.50 with a state effective date of January 1, 2015. The revision to section 2101.20 (Definitions) under Article XXI amends the definition of “open burning” to additionally include any fire or combustion that occurs in a chiminea, fire pit, outdoor fireplace or grill. The revisions to section 2105.50 (Open Burning) under Article XXI consist of the following: (1) Limit any open burning to clean wood, propane, or natural gas, and establishes specific exceptions to the limits; (2) limit the volume of clean wood being burned and limiting the distance permitted between open burning locations and inhabited areas; (3) establish the exceptions to burning clean wood for chimineas, fire pits, outdoor fireplaces and grills. These exceptions pertain to the use of charcoal, propane, or natural gas when pertaining to cooking, the use of commercially available fire logs, paraffin logs and wood pellets, and the use of paper or commercial smokeless fire starters to start an allowed fire; (4) prohibit wood burning activities on air quality action days, with the exception of commercial food preparation; (5) allow ACHD to prohibit or reduce open burning based on severity, duration, topography, and meteorological conditions; (6) restrict open burning activities on air quality action days, with the exception of conducting such burning for the commercial preparation of food; and (7) make the necessary administrative word changes and paragraph renumbering in order to clarify and codify various regulatory and existing policies.

These SIP revisions further address emissions from open burning, which should reduce PM2.5 pollution and assist Pennsylvania with the 2015 PM2.5 NAAQS. These revised regulations limit the times and fuel types permitted for open burning which should reduce pollutants emitted during open burning including PM2.5. The revised provisions are expected to reduce PM2.5 emissions throughout Allegheny County. EPA finds that the submittal strengthens the Commonwealth of Pennsylvania SIP and is in accordance with section 110 of the CAA. Therefore, approving these regulation revisions will not interfere with attainment of the NAAQS, rate of progress, reasonable further progress, or any other applicable requirement of the CAA. For additional analysis, see EPA's Technical Support Document available in the docket for this rulemaking and online at www.regulations.gov.

EPA is approving the Pennsylvania June 2015 SIP submittal which contained revised provisions of ACHD's Article XXI (Air Pollution Control), section 2101.20, “Definitions,” and section 2105.50, “Open Burning” as the revisions meet requirements in CAA section 110. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on November 8, 2017 without further notice unless EPA receives adverse comment by September 11, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 section 2101.20 and section 2105.50 under Article XXI (Air Pollution Control). Therefore, these materials have been approved by EPA for inclusion in the SIP, 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 of the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 8, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, which approves revisions to section 2101.20 and section 2105.50 under Article XXI (Air Pollution Control), may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Entities potentially affected by this action include state, local and tribal governments that would participate in the initial area designation process for the 2015 ozone standards.

The EPA has established a docket for designations for the 2015 ozone NAAQS under Docket ID No. EPA-HQ-OAR-2017-0223. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

An electronic copy of this notice is also available at http://www.epa.gov/ozone-designations along with other information related to designations for the 2015 ozone NAAQS.

On October 1, 2015, the EPA signed a notice of final rulemaking that revised the 8-hour primary and secondary ozone NAAQS (80 FR 65292; October 26, 2015). Both standards were lowered from 0.075 parts per million (ppm) to a level of 0.070 ppm.

After the EPA establishes or revises a NAAQS pursuant to CAA section 109, the CAA directs the EPA and the states to begin taking steps to ensure that those NAAQS are met. The first step is to identify areas of the country that meet or do not meet that NAAQS. This step is known as the initial area designations. Section 107(d)(1)(A) of the CAA provides that, “By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant under section [109], the Governor of each State shall * * * submit to the Administrator a list of all areas (or portions thereof) in the State” that designates those areas as nonattainment, attainment, or unclassifiable.

The CAA further provides, “Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) * * * as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.” 42 U.S.C. 7407(d)(1)(B)(i).

In the EPA guidance, “Area Designations for the 2015 Ozone National Ambient Air Quality Standards,” the EPA indicated it expected to complete the initial area designations by October 1, 2017, consistent with the statutory requirement that the EPA designate areas no later than 2 years following promulgation of a revised NAAQS.1

In letters sent to states on June 6, 2017, and in a Federal Register notice published on June 28, 2017 (82 FR 29246), the EPA Administrator Scott Pruitt announced that he was using his authority under section 107(d)(1)(B)(i) of the CAA to extend by 1 year, to October 1, 2018, the deadline for promulgating initial area designations for the 2015 ozone NAAQS. At that time (i.e., in early June), it was not clear that the agency would be in the position to complete designations for all areas for the 2015 ozone NAAQS in accordance with the 2-year statutory deadline of October 1, 2017. For a variety of other NAAQS in the past, previous EPA Administrators have used the authority under section 107(d)(1)(B)(i) to take additional time to complete designations.2 The Administrator decided to similarly invoke the extension with regard to designations for the 2015 ozone NAAQS.

The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed. The EPA now intends to reassess whether there are areas with underlying technical issues, whether there are state designation recommendations that the EPA intends to modify, and whether for any area there is insufficient information to promulgate the designation. The EPA believes this reevaluation will help ensure that more Americans are living and working in areas that meet national air quality standards. The agency believes that there may be areas of the United States for which designations could be promulgated in the next few months. Therefore, the EPA is withdrawing its prior announced 1-year extension of the deadline for promulgating initial area designations for the 2015 ozone NAAQS, and the 2-year deadline for promulgating designations provided in section 107(d)(1)(B) of the CAA applies. The Administrator may still determine that an extension of time to complete designations is necessary, but is not making such a determination at this time.

A. Why are revisions to State programs necessary?

States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program is revised to become more stringent or broader in scope, States must revise their programs and apply to EPA to authorize the revisions. Authorization of revisions to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other revisions occur. Most commonly, States must revise their programs because of revisions to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

On August 19, 2016, Delaware submitted a final program revision application (with subsequent corrections) seeking authorization of revisions to its hazardous waste program that correspond to certain Federal rules promulgated between July 30, 2003 and July 28, 2006. EPA concludes that Delaware's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA grants Delaware final authorization to operate its hazardous waste program with the revisions described in its authorization application, and as outlined below in Section G of this document.

Delaware has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which Delaware has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.

This action serves to authorize revisions to Delaware's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Delaware is being authorized by this action are already effective and are not changed by this action. Delaware has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Perform inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether Delaware has taken its own actions.

Along with this direct final rule, EPA is publishing a separate document in the “Proposed Rules” section of this issue of the Federal Register that serves as the proposal to authorize these State program revisions. EPA did not publish a proposal before this rule because EPA views this action as a routine program change and does not expect comments that oppose its approval. EPA is providing an opportunity for public comment now, as described in Section E of this document.

If EPA receives comments that oppose this authorization, EPA will withdraw this direct final rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of Delaware's program revisions on the proposal mentioned in the previous section, after considering all comments received during the comment period. EPA will then address all such comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If EPA receives comments that oppose only the authorization of a particular revision to the State's hazardous waste program, EPA will withdraw that part of this rule, but the authorization of the program revisions that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Delaware initially received final authorization effective June 22, 1984 (June 8, 1984; 49 FR 23837). EPA granted authorization for revisions to Delaware's regulatory program on August 8, 1996, effective October 7, 1996 (61 FR 41345); August 18, 1998, effective October 19, 1998 (63 FR 44152); July 12, 2000, effective September 11, 2000 (65 FR 42871); August 8, 2002, effective August 8, 2002 (67 FR 51478); March 4, 2004, effective May 3, 2004 (69 FR 10171); and October 7, 2004, effective December 6, 2004 (69 FR 60091).

On August 19, 2016, Delaware submitted a final program revision application (with subsequent corrections), seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. Delaware's revision application includes various regulations that are equivalent to, and no less stringent than, selected Federal final hazardous waste rules, as published in the Federal Register between July 30, 2003 and July 28, 2006.

EPA now makes a direct final rule, subject to receipt of written comments that oppose this action, that Delaware's hazardous waste program revision application satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Delaware final authorization for the following program revisions:

Delaware seeks authority to administer the Federal requirements that are listed in Table 1 below. This table lists the Delaware analogs that have been revised; these revisions are being recognized as no less stringent than the analogous Federal requirements.

Delaware's regulatory references are to Delaware's Regulations Governing Hazardous Waste (DRGHW), amended and effective August 21, 2006, December 21, 2007, December 21, 2008, May 21, 2009, and April 21, 2016. Additionally, there are some minor corrections that were promulgated and became effective on or before April 21, 2016. The statutory references are to 7 Delaware Code annotated (1991).

Delaware's program revision application includes State-initiated changes that are not directly related to any of the Revision Checklists in Table 1. These State-initiated revisions to some of Delaware's existing regulations are for the purposes of correcting errors and adding consistency or clarification to the existing regulations. EPA has evaluated the changes and has determined that the State's regulations remain consistent with, and are no less stringent than, the corresponding Federal regulations. EPA grants Delaware final authorization for the State provisions listed in Table 2. The following State-initiated revisions are equivalent and analogous to the numerically identical provisions of the Federal RCRA regulations found at relevant or applicable 40 CFR sections as of July 1, 2007.

The Delaware hazardous waste program contains certain provisions that are broader in scope than the Federal program. These broader in scope provisions are not part of the program being authorized by this action. EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by Delaware law. Examples of broader in scope provisions of Delaware's program include, but are not limited to, the following:

(a) DRGHW 260.10 includes the definition of “cathode ray tube (CRT) generator,” which is not found in the Federal regulations. Furthermore, the definition of “CRT processing” found at DRGHW 260.10, and the requirements at DRGHW 261.39, DRGHW 261.40, and DRGHW 261.4(b)(16)(i)-(iii), contain language regarding the management of cathode ray tubes as a solid waste. Under the Federal requirements, used CRTs that meet certain conditions are not a solid waste and would not be regulated. Delaware continues to regulate those used CRTs even if they meet the Federal exclusion requirements. As a result, Delaware's regulation of these excluded CRTs goes beyond the scope of the Federal program and is not a part of the Federally enforceable program.

(b) The Delaware regulations promulgated at DRGHW 263 Subpart E outline provisions for hazardous waste transporter permits. Because there is no counterpart in the Federal regulations that addresses hazardous waste transporter permits, this entire section (DRGHW 263 Subpart E) is broader in scope. Delaware has made changes to subparagraphs 263.102(b)(3) and (4) of DRGHW 263 Subpart E. These subparagraphs set forth conditions that could lead to the modification, denial, termination, or revocation of a hazardous waste transporter permit. There are no provisions in the Federal regulations that address the modification, denial, termination, or revocation of a hazardous waste transporter permit. As a result, these DRGHW provisions go beyond the scope of the Federal program.

Delaware's hazardous waste program contains several provisions that are more stringent than the RCRA program. The more stringent provisions are part of the Federally-authorized program and are, therefore, Federally-enforceable. The specific more stringent provisions are also noted in Table 1 and in Delaware's authorization application. They include, but are not limited to, the following:

(a) The Federal regulations at 40 CFR 261.5(j) state that if a conditionally exempt small quantity generator's wastes are mixed with used oil, the mixture is subject to the “Standards for the Management of Used Oil.” However, Delaware's regulations at DRGHW 261.5(j) state that if a conditionally exempt small quantity generator's wastes are mixed with used oil, the mixture is subject to several standards including: the Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Standards Applicable to Generators of Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste; Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Standards for the Management of Specific Types of Hazardous Waste; Land Disposal Restrictions; the Hazardous Waste Permit Program; and Procedures for Decision Making. Because Delaware imposes additional standards on waste and used oil mixtures, Delaware's regulations are more stringent than the Federal requirements.

(b) DRGHW 261.41 includes more stringent requirements, at DRGHW 261.41(a), which are not found in 40 CFR 261.41. Specifically, the Delaware provision imposes additional requirements on used, intact Cathode Ray Tubes (CRTs) exported for reuse. When applied to CRTs that are regulated by the Federal requirements, the provisions at DRGHW 261.41(a) are more stringent than the Federal requirements.

(c) The Delaware regulations at DRGHW 262.12(d) require that a generator submit a “RCRA Subtitle C Site Identification Form” (EPA Form 8700-12) whenever there is a change in name, mailing address, contact person, contact address, telephone number, ownership, type of regulated waste activity, description of regulated wastes managed, or if the generator permanently ceases the regulated waste activity. This notification must be submitted to the DNREC Secretary no less than 10 days prior to the implementation of the change(s). The Federal regulations at 40 CFR 262.12 do not require the submission of a “RCRA Subtitle C Site Identification Form” (EPA Form 8700-12) whenever there is a change in name, mailing address, contact person, contact address, telephone number, ownership, type of regulated waste activity, description of regulated wastes managed, or if the generator permanently ceases the regulated waste activity. Therefore, this provision of Delaware's regulations is more stringent than the Federal requirement.

(d) The Federal requirements in 40 CFR 262.20 detail the procedures generators must follow when preparing a manifest. The paragraph at 40 CFR 262.20(e) includes conditions whereby generators that generate more than 100 kilograms, but less than 1000 kilograms in a calendar month would be exempt from the manifest requirements. Delaware's regulations at DRGHW 262.20 also include guidelines for the preparation of a manifest. However, paragraph 262.20(e) in the DRGHW is labeled as “Reserved”. Therefore, the manifest exemption for generators that generate more than 100 kilograms, but less than 1000 kilograms of hazardous waste in a calendar month that is included in the CFR is excluded from Delaware's regulations. Thus, Delaware regulations are considered to be more stringent.

(e) The Federal regulations promulgated at 40 CFR 262.44 state that generators who generate more than 100 kilograms, but less than 1000 kilograms of hazardous waste in a calendar month are subject to reporting and recordkeeping requirements in 40 CFR 262.40(a), (c), and (d); 40 CFR 262.42(b); and 40 CFR 262.43. Delaware's regulations impose additional reporting and recordkeeping requirements on these generators. Specifically, Delaware's regulations at DRGHW 262.44 call for generators who generate more than 100 kilograms, but less than 1000 kilograms to follow the reporting and recordkeeping requirements in DRGHW 262.40(a), (b), (c), and (d); DRGHW 262.42(b); and DRGHW 262.43. Therefore, Delaware's regulations are more stringent than the Federal regulations.

(f) The Delaware regulations at DRGHW 265.176(b) require the owner(s) or operator(s) of waste treatment, storage, and disposal facilities to take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. Specifically, owner(s) or operator(s) must implement preventative measures including: Separating and protecting ignitable or reactive waste from sources of ignition or reaction, confining smoking and open flame to specially designated locations while ignitable or reactive waste is being handled, and conspicuously placing “No smoking” signs wherever there is a hazard from ignitable or reactive waste. The Federal regulation promulgated at 40 CFR 265.176 does not include provisions for owner(s) or operator(s) of waste treatment, storage, and disposal facilities to prevent accidental ignition or reaction of ignitable or reactive waste. Hence, Delaware's regulation is more stringent.

(g) The Federal regulations at 40 CFR 268.7 include testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities. The provision at 40 CFR 268.7(a)(1) states that a generator must determine whether its hazardous waste must be treated before it can be land disposed. It also says that generators can make this determination by either testing the waste or using knowledge of the waste. The provision also gives generators the option to send their waste to a RCRA-permitted hazardous waste facility, where the facility would have to test the hazardous waste. Delaware also has testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities, which can be found at DRGHW 268.7. Delaware's regulations at DRGHW 268.7(a)(1) require that generators determine whether their hazardous waste must be treated before it can be land disposed. Similar to the federal requirements, Delaware's regulations state that generators can either test the waste or use knowledge of the waste to make this determination. However, Delaware's regulations do not include a provision to allow generators to send their waste to a RCRA-permitted facility for testing. Therefore, Delaware's requirements are more stringent than Federal requirements.

(h) The Delaware regulations promulgated at DRGHW 279.10(i) state that marketers and burners of used oil who market used oil containing any quantifiable level of polychlorinated biphenyls (PCBs) are subject to both the “Standards for the Management of Used Oil” set forth in DRGHW Part 279 and the requirements found at 40 CFR 761.20(e). The Federal regulations at 40 CFR 279.10(i), however, list the criteria whereby used oil containing PCBs may become subject to both the “Standards for the Management of Used Oil” and the requirements of 40 CFR part 761. As a result, under the Federal regulations, marketers and burners or used oil who market used oil containing PCBs may be subject to either the requirements of 40 CFR part 279 or the requirements of 40 CFR part 761. Because Delaware always requires compliance with both parts of the regulations, Delaware's regulations are more stringent.

(i) The Delaware regulations at DRGHW 279.22(b)(3) state that containers and aboveground tanks utilized to store used oil at generator facilities must be closed during storage, except when it is necessary to add or remove oil. The Federal regulations at 40 CFR 279.22(b) do not require that containers and aboveground storage tanks remain closed during storage, thereby making Delaware's regulations more stringent.

After this authorization revision, Delaware will continue to issue permits covering all the provisions for which it is authorized and will administer all such permits. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that it issued prior to the effective date of this authorization until the timing and process for effective transfer to the State are mutually agreed upon. Until such time as EPA formally transfers responsibility for a permit to Delaware and EPA terminates its permit, EPA and Delaware agree to coordinate the administration of such permit in order to maintain consistency. EPA will not issue any more new permits or new portions of permits for the provisions listed in Section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Delaware is not yet authorized.

Delaware is not seeking authority to operate the program on Indian lands, since there are no Federally-recognized Indian Lands in Delaware.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this action by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR part 272, subpart I, for this authorization of Delaware's program revisions until a later date.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore, this action is not subject to review by OMB. This action authorizes State requirements pursuant to RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In any case, Executive Order 13175 does not apply to this rule since there are no Federally recognized tribes in Delaware.

This action 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant, and it does not concern environmental health or safety risks that may disproportionately affect children. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that satisfies the requirements of RCRA. Thus, the requirements of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 3701, et seq.) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than, existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

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 document 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 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). This action is effective October 10, 2017.

The purpose of 45 CFR part 1630 is “to provide uniform standards for allowability of costs and to provide a comprehensive, fair, timely, and flexible process for the resolution of questioned costs.” 45 CFR 1630.1. LSC last revised part 1630 in 1997, when it published a final rule intended to “bring the Corporation's cost standards and procedures into conformance with applicable provisions of the Inspector General Act, the Corporation's appropriations [acts], and relevant Office of Management and Budget (OMB) circulars.” 62 FR 68219, Dec. 31, 1997. Although the OMB Circulars are not binding on LSC because LSC is not a federal agency, LSC adopted relevant provisions from the OMB Circulars pertaining to non-profit grants, audits, and cost principles into the final rule for part 1630. Id. at 68219-20 (citing OMB Circulars A-50, A-110, A-122, and A-133).

LSC published the PAMM in 2001 “to provide recipients with a single complete and consolidated set of policies and procedures related to property acquisition, use and disposal.” 66 FR 47688, Sept. 13, 2001. Prior to the PAMM's issuance, such policies and procedures were “incomplete, outdated and dispersed among several different LSC documents.” Id. The PAMM contains policies and procedures that govern both real and non-expendable personal property, but, except for contract services for capital improvements, the PAMM does not apply to contracts for services. Id. at 47695. The PAMM's policies and procedures were developed with guidance from the Federal Acquisition Regulation at 48 CFR parts 1-52, federal property management regulations, and OMB Circular A-110. Id. at 47688. The PAMM also incorporates several references to provisions of part 1630 pertaining to costs that require LSC's prior approval and the proper allocation of derivative income. Id. at 47696-98 (containing references to 45 CFR 1630.5(b)(2)-(4), 1630.5(c), and 1630.12, respectively).

Part 1630 and the PAMM have not been revised since 1997 and 2001, respectively. Since then, procurement practices and cost allocation principles applicable to awards of federal funds have changed significantly. For instance, in 2013, OMB revised and consolidated several Circulars, including the Circulars LSC relied upon to develop part 1630, into a single Uniform Guidance. 78 FR 78589, Dec. 26, 2013; 2 CFR part 200. OMB consolidated and simplified its guidance to “reduce administrative burden for non-Federal entities receiving Federal awards while reducing the risk of waste, fraud and abuse.” 78 FR 78590.

LSC determined that it should undertake regulatory action at this time for three reasons. The first reason is to account for changes in Federal grants policy where appropriate for LSC. The second reason is to address the difficulties that LSC and its grantees experience in applying ambiguous provisions of part 1630 and the PAMM. Finally, LSC believes rulemaking is appropriate now to address the limitations that certain provisions of both documents place on LSC's ability to ensure clarity, efficiency, and accountability in its grant-making and grants oversight practices.

In July 2014, the Operations and Regulations Committee (Committee) of LSC's Board of Directors (Board) approved Management's proposed 2014-2015 rulemaking agenda, which included revising part 1630 and the PAMM as a priority item. On July 7, 2015, Management presented the Committee with a Justification Memorandum recommending publication of an Advance Notice of Proposed Rulemaking (ANPRM) to seek public comment on possible revisions to part 1630 and the PAMM. Management stated that collecting input from the regulated community through an ANPRM would significantly aid LSC in determining the scope of this rulemaking and in developing a more accurate understanding of the potential costs and benefits that certain revisions may entail. On July 18, 2015, the Board authorized rulemaking and approved the preparation of an ANPRM to revise part 1630 and the PAMM.

In October 2015, LSC published in the Federal Register an ANPRM, seeking public comment on potential revisions to part 1630 and the Property Acquisition and Management Manual (PAMM). 80 FR 61142, Oct. 9, 2015. After receiving comments on the ANPRM, LSC conducted workshops to obtain additional input on the potential changes. LSC drafted proposed changes to part 1630 and the PAMM based on the feedback it received from the ANPRM and the workshops.

On October 28, 2016, LSC published in the Federal Register a Notice of Proposed Rulemaking (NPRM) regarding 45 CFR parts 1600, 1630, and new 1631. 81 FR 75006, Oct. 28, 2016. LSC sought public comment on LSC's revisions to its definitions and cost standards and procedures and the creation of a new part from the PAMM. In response to a request from the National Legal Aid and Defender Association (NLADA), LSC extended the original 60-day comment period for an additional 30 days. 81 FR 93653, Dec. 21, 2016. The new deadline for comments was January 26, 2017. On July 21, 2017, the Committee recommended publication of this final rule to the Board. On July 22, 2017, the Board voted to publish this final rule.

Materials regarding this rulemaking are available in the open rulemaking section of LSC's Web site at http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking.

During the public comment period, LSC received comments from six organizations: Indiana Legal Services (ILS), Colorado Legal Services (CLS), Michigan Advocacy Program (MAP), Northwest Justice Project (NJP), NLADA, and Legal Action of Wisconsin (Legal Action).

Commenters expressed support for several elements of the proposed regulations. NLADA supported the proposal to eliminate 45 CFR 1630.3(a)(8), which requires recipients to obtain written consent from federal agencies before they may use LSC funds to match the federal agencies' grants. NLADA, NJP, and MAP supported increasing the prior approval threshold in § 1630.6(b)(1) from $10,000 to $25,000. MAP supported the proposal to exclude employee benefit contracts from the prior approval requirements in § 1630.6(b)(1)(ii). MAP also supported adopting proposed § 1631.8, which requires recipients to have written procurement policies and procedures that meet particular standards because it involves LSC oversight at a policy level, and not individual transactional level. MAP supported the proposal to make the PAMM a regulation. NLADA and MAP supported proposed § 1631.13, which would permit programs to dispose of personal property that has little or no value as the program sees fit.

Section 1600.1 Definitions. LSC proposed including definitions of three new terms: Corporation funds, LSC funds, and non-LSC funds.

Comment: NJP supported adding these definitions. NJP, NLADA, and CLS, however, expressed concern that the proposed definition of Corporation funds or LSC funds, which reads “any funds appropriated by Congress to carry out the purposes of the Legal Services Corporation Act of 1974, 42 U.S.C. 2996 et seq., as amended[,]” could be interpreted to include funds appropriated by Congress to other departments or agencies that can be granted to LSC recipients for the purpose of providing legal assistance. Instead, NJP recommended adding “to LSC” to the definition, which would then read “any funds appropriated by Congress to LSC. . . .”

Response: LSC will revise the final rule to add the phrase “to LSC” to the definition in § 1600.1.

Organizational note: As described in the discussion for § 1630.10 (Recipient policies, procedures, and recordkeeping), the final rule will insert this section and renumber the sections that follow. This preamble reflects the updated numbering except where noted.

LSC proposed to reorganize part 1630 into four subparts addressing (1) generally applicable provisions; (2) allocability and allowability of costs charged to LSC grants; (3) questioned cost proceedings; and (4) closeout proceedings.

Section 1630.1 Purpose. LSC proposed no changes to this section and received no comments.

Section 1630.2 Definitions. Proposed § 1630.2(d) defined final written decision as either (1) a decision issued by the Vice President for Grants Management, or (2) “the notice of questioned costs if a recipient does not respond to the notice within 30 days of receipt.” Additionally, proposed § 1630.3 (current § 1630.13(b)) recognized that LSC may, on a recipient's written request for good cause, grant an extension of time.

Comment: NJP expressed concern, with which CLS agreed, that the extension of time is not referenced in the § 1630.2(d) definition, nor is it identified in proposed § 1630.10(d)(2) (governing questioned cost proceedings). Proposed § 1630.10(d)(2) established that “[i]f the recipient does not respond to LSC's written notice [of questioned costs] within 30 days, the written notice shall become LSC's final written decision.” NJP expressed concern that, if a recipient does not respond to the written notice within 30 days, the recipient loses the right to further appeal because “cutting off any right to appeal after 30 days does not take into account vagaries of notice or possible intervening events.”

Response: As NJP noted, the timeframes of part 1630 are subject to extensions for good cause. Accordingly, where a recipient receives a notice of questioned costs, it may request an extension based on the “vagaries of notice or possible intervening events” with which NJP is concerned. LSC believes proposed § 1630.3(b), which described permitted extensions, provided appropriate flexibility to respond to issues that may impede a recipient's ability to fully respond to the notice within 30 days.

Nevertheless, to clarify both that the extensions of time described in proposed § 1630.3 apply during questioned cost proceedings and that a final written decision is subject to the extension, LSC will amend proposed § 1630.10(d)(2), renumbered as § 1630.11(d)(2), to read, “If the recipient does not respond to LSC's written notice within 30 days; the recipient does not request an extension of time pursuant to § 1630.3(b) within 30 days; or LSC does not grant an extension of time pursuant to § 1630.3(b) within 30 days the written notice shall become LSC's final written decision.”

Section 1630.3 Time.

Section 1630.3(a). Current § 1630.13(a) states that time limits in part 1630 are computed according to the Federal Rules of Civil Procedure, Rules 6(a) and (e). LSC proposed to relocate this language to § 1630.3(a) without change.

Comment: NJP noted that the current version of Rule 6 has no paragraph (e) and proposed that LSC eliminate the reference. NJP also noted that, rather than citing to the Federal Rules of Civil Procedure to explain the time limits, it may be less confusing for LSC to include in the rule a standard for calculating time. CLS supported this comment.

Response: In response to NJP's comment, LSC will replace paragraph (a) regarding time computation with language adopted from 24 CFR 26.31. The adopted language provides that the first day of the time period is the day after the event. In other words, if a recipient has 30 days to respond to a notice of questioned costs, the 30 days begins running the day after the recipient receives the notice. For time periods of seven days or less, the time period is seven business days; intermediate Saturdays, Sundays, and legal holidays are excluded from the computation.

Section 1630.3(b). Current § 1630.13(b) states that LSC may, “on a recipient's written request for good cause, grant an extension of time and shall so notify the recipient in writing.” LSC did not propose to change this provision in the NPRM.

Comment: NJP noted that proposed § 1630.3(b) did not state whether the request for extension of time must be received by LSC before the expiration of the deadline at issue. NJP asserted that if LSC intends that the request be received within the timeframe, the regulation should so state. NJP also requested that the regulation state that “good cause” shall be liberally construed. CLS stated it “believes that the timeline for appealing questioned costs should be clarified, relaxed and allow for extensions of time and exceptions.”

Regarding extensions of time and proposed § 1630.10(d)(2) (review of questioned costs) specifically, NJP also requested that the regulation allow a recipient the opportunity to demonstrate good cause for failing to respond to the notice of proposed costs within 30 days after the allotted 30 days' response time has passed but before LSC pursues recovery of the disallowed cost. NJP noted that recipients face technology and mail delivery problems, staff illness, vacation or other extended leave, or other exigent circumstances, including “excusable neglect,” that cause recipients to fail to seek an extension within the 30 days allowed by proposed § 1630.10(d)(2).

Response: LSC emphasizes that proposed § 1630.10(d)(2), final rule § 1630.11(d)(2), authorizes a full 30 calendar days for a recipient to seek an extension of time. For effective and efficient management, LSC believes it is reasonable to expect some form of correspondence from a recipient—whether the actual response or a request for an extension—within the timeframe provided by the relevant section of the rule. The circumstances that NJP suggests would merit requests for extensions of time that are filed after the timeframe expired, e.g., staff on vacation or excusable neglect, do not seem to be reasonable justification for a grantee to be unable to request an extension before a deadline expires. Therefore, LSC will adopt NJP's suggestion to clarify that § 1630.3(b) requires the request for an extension to be submitted within the allotted timeframe. In addition, LSC will add language requiring LSC to respond to a request for extension within seven calendar days of receipt of the request. LSC believes this regulation, as revised, provides an appropriate timeline for questioned costs proceedings, including appropriate extensions of time and exceptions.

Section 1630.4 Burden of proof. LSC proposed no changes to this section and received no comments.

Section 1630.5 Standards governing allowability of costs under LSC grants or contracts. In proposed § 1630.5(i), LSC referenced regulations and circulars of the Office of Management and Budget (OMB) as documents providing guidance for all allowable costs arising under part 1630 where relevant policies or criteria are not inconsistent with the provisions and regulations of LSC.

Comment: NJP suggested that using OMB guidance “for all allowable cost questions arising under this part when relevant policies or criteria therein are not inconsistent” with LSC laws and regulations “put[s] into play” OMB guidance where LSC does not have other published policies or guidance. NJP and Legal Action expressed concern that OMB guidance does not permit fundraising as an allowable cost, which conflicts with LSC's longstanding practice of allowing LSC funds to be used for fundraising efforts. See Advisory Opinion EX-1999-12, http://www.lsc.gov/sites/default/files/LSC/laws/pdfs/olaeo/EX-1999-12.pdf. CLS supported this comment. NJP and NLADA also suggested removing the words “and circulars” from proposed § 1630.5(i) because relevant OMB circulars have been replaced by the Uniform Guidance published by the Office of Management and Budget, 2 CFR part 200. CLS supported these suggestions.

Response: LSC agrees with these comments and will make two changes to the final rule. LSC will add a new paragraph (i) to this section to reflect LSC's longstanding policy that recipients may use LSC funds to engage in fundraising for the purposes of expanding the resources available to carry out the LSC grant. LSC will also remove the words “and circulars” from proposed § 1630.5(i), final rule § 1630.5(j).

Section 1630.6 Prior approval. Under current § 1630.5(b)(2), LSC requires recipients to seek prior approval for any purchases and leases of equipment, furniture, or other personal, non-expendable property, if the purchase price of any individual item of property exceeds $10,000. 45 CFR 1630.5(b)(2). LSC also requires recipients to seek prior approval of purchases of real property, capital expenditures costing more than $10,000, and pre- and post-award costs. Id. § 1630.5(b)(1), (3), and (4).

In the NPRM, LSC proposed three changes to the prior approval requirement. First, LSC proposed to increase the prior approval threshold amount to $25,000 to account for inflation. Second, because LSC believes effective financial oversight requires recipients to seek prior approval for more transactions than only those listed in the current rule, the proposed regulation required prior approval for “any . . . transaction” of purchases or leases of personal property, contracts for services, purchases of real estate, and capital improvements when the cost of the transaction exceeds $25,000. In the preamble to the NPRM, LSC explained that recipients must seek prior approval for “any single purchase whose costs exceed $25,000 in LSC funds, regardless of whether that purchase is of a single item of personal property, or a combination of personal property and services.” 81 FR 75006, 75013, Oct. 28, 2016. Finally, LSC proposed to remove pre-award and post-award costs from the list of costs eligible for prior approval because prior approval is not the appropriate process for considering requests to use LSC funds to pay for pre- or post-award costs.

General comments: Every commenter opposed at least some part of the proposed prior approval requirement. In general, the commenters objected to LSC's review of purchases because the recipient knows the local market better than LSC. Commenters observed that seeking prior approval may unduly delay routine and necessary purchases and undermine negotiations for favorable deals with vendors. Commenters were particularly concerned with how the proposed regulation would affect their office supply purchases. NLADA noted that programs may make bulk purchases of expendable property as the most efficient and economical means of acquiring supplies. NLADA noted that the proposed change reverses prior policy which provided “clear” and “objective” standards to determine when prior approval would be necessary. Legal Action encouraged LSC not to require prior approval for personal property purchases because LSC would find itself reviewing routine purchases of office supplies. NJP opined that requiring prior approval for aggregate purchases would “encourage recipients to parse out their purchases to avoid the need to obtain prior approval with the consequences of more paper work, staff time to process this paperwork and payments, and the potential of less favorable pricing.”

Commenters also described challenges anticipating costs for particular services. For example, Legal Action noted how difficult it is to project whether translation services costs and records storage costs would exceed $25,000 in a year. ILS noted that where anticipated costs are difficult to determine, even where it has no intention of exceeding $25,000 in a year, it may nevertheless “play it safe” by seeking approval at the outset for these arrangements to avoid later violations. Other commenters noted that recipients may have difficulty determining when to seek prior approval for services contracts because of the various types of contracts recipients have, e.g., a consultancy contract in which a recipient pays a flat fee each month and, potentially, a fee-per-service or hourly fee for additional tasks as needed.

NJP suggested imposing the proposed prior approval requirement only where necessary to address past abuse, conflict of interest, fraud, or “other malfeasance[.]” MAP suggested adding a separate section in the grant application asking grantees to explain proposed purchases over $25,000 in LSC funds, which would allow recipients and LSC to engage in discussion about purchases without the bureaucracy of the proposed regulations.

General Response: LSC responds to specific concerns under section headers below. Generally, LSC intended this rule to capture single purchases (i.e., purchases at one point in time through one order) of single items or services or aggregate items whose total cost exceeds the threshold, not multiple purchases of multiple items or services at different points in time. LSC is making several changes to the rule to clarify its intention.

Section 1630.6(b). Proposed § 1630.6(b)(1) required a recipient to “obtain LSC's prior approval before charging costs attributable to any of the transactions below to its LSC grant when the cost of the transaction exceeds $25,000 of LSC funds[.]” In the preamble to the NPRM, LSC explained that a recipient must seek prior approval for “any single purchase whose cost exceeds $25,000 in LSC funds, regardless of whether that purchase is of a single item of personal property, several unrelated items of personal property, or a combination of personal property and services.”

Comment: Commenters expressed confusion regarding the circumstances under which prior approval is required. NJP observed that the term “transactions” is undefined in the regulation. All commenters expressed confusion about what types of purchases were aggregated or what constituted a single purchase. NJP and NLADA also expressed confusion about when purchases are “aggregated” for purposes of applying the prior approval threshold. MAP recommended that LSC clarify “single purchase” as “a single order of goods or a single contract for services from a single vendor the cost of which exceeds $25,000 in LSC funds.”

Response: LSC used the term “transactions” as a global term to describe the various types of costs subject to the prior approval requirement. LSC did not intend to introduce a separate category of undefined transactions into the rule. To avoid continued confusion, LSC will change the language in § 1630.6(b)(1) to largely follow the current § 1630.5(b) language. The redrafted subparagraph will read, “Without LSC's prior written approval, a recipient may not expend $25,000 or more of LSC funds on any of the following[.]”

Additionally, LSC will clarify that prior approval applies to a “single purchase,” “single lease,” or “single contract” and define these terms in the new rule. LSC will define the terms at § 1630.2(h): “Single purchase, single lease, and single contract mean a single order or lease of goods or a single contract for services from a single vendor.”

Accordingly, the prior approval requirement applies to—

(i) A single purchase or single lease of personal property;

(ii) A single contract for services;

(iii) A single purchase of real estate;

(iv) Capital improvements; and

(v) A single purchase or single lease of personal property combined with a single contract for services.

This clarification resolves the questions commenters raised. For example, ILS has a discount arrangement with an office supplier. Although ILS does not make $25,000 worth of purchases from this vendor at one time, over the course of a year ILS may purchase more than $25,000 in LSC funds worth of supplies from the vendor. Under LSC's proposed rule, this scenario does not trigger the prior approval requirement. The requirement is triggered only when a single order of one or multiple items from this vendor exceeds $25,000. As another example, Legal Action purchases supplies online from a small number of vendors. Over the course of a year, Legal Action explained, the aggregate purchases from an individual vendor, such as Amazon, may exceed $25,000. Again, a purchase requires prior approval when it is a single order from a single vendor of a good or multiple goods whose cost exceeds $25,000 in LSC funds.

Finally, MAP posed the example of buying office supplies for seven offices from a single vendor over the course of a year that could add up to $25,000. Again, the proposed rule does not aggregate purchases over time. If a single order of consumable supplies exceeds $25,000, there is no reason not to examine that purchase with the same diligence as the purchase of a non-consumable good that costs over $25,000. Moreover, LSC's proposed approach of increasing oversight over purchases, including supplies, aligns with the Uniform Guidance's inclusion of purchases of supplies as types of purchases subject to increasingly stringent levels of competition. See 2 CFR 200.320.

Section 1630.6(b)(1)(ii). Proposed § 1630.6(b)(1)(ii) extended the scope of both the PAMM and the prior approval requirements to contracts for services.

Comment 1: All commenters objected to LSC's proposed § 1630.6(b)(1)(ii). Commenters noted that recipients' various structures of contractual arrangements for services make determining when prior approval is required difficult. For example, Legal Action explained that it retains technology consultant services for a fixed monthly fee with discrete projects that arise billed on a fee-per-service or hourly basis. Similarly, CLS contracts quarterly for its IT services, with quarterly projected expenditures based on an estimated assessment of needed services. CLS noted, however, that its program may have unexpected IT needs late in the year that bring the total cost over $25,000, even though at the outset, no quarterly agreement met or was likely to meet the threshold. NJP maintains “rate arrangements” with hotels with no individual stay exceeding the threshold amount, but over a year, stays at a particular hotel may exceed $25,000.

Other recipients arrange to receive services for a period of time at a fixed rate, for example, paying $25 per hour for translation services as needed over two years. In these scenarios, commenters stated that calculating whether the recipient needs to seek prior approval may be difficult. NLADA asked if a recipient would need to obtain prior approval if services would not exceed $25,000 in one year, but would exceed $25,000 over two years. Legal Action also questioned whether payments to various temporary workers, none of whose payments exceeds $25,000, but when taken together exceed $25,000, require prior approval.

Response: LSC believes that the language of the proposed rule accommodates the concerns described by commenters. First, for all services contracts, because LSC prior approval extends for one year, LSC believes the appropriate period of time to calculate the accrual of costs is one year. Second, regarding situations where a contract does not have a fixed price at the outset, LSC believes the appropriate approach is to require prior approval once a recipient expects the contract will exceed $25,000 in LSC funds. This requires a business judgment decision by the recipient to determine when it appears the cost of a contract will exceed $25,000. Applying this approach, a contract based on a monthly rate with an additional fee-for-service cost that arises throughout a year would trigger the prior approval requirement either (1) at the beginning of the contract if the initial cost exceeds or is expected to exceed $25,000, or (2) once it appears the additional fee-for-service costs (or any other costs that arise) will cause the total cost of the contract to exceed $25,000. Where services are provided throughout a year based on separate arrangements made throughout the year, each arrangement is considered a separate contract and triggers the prior approval requirement only if one arrangement exceeds $25,000. LSC notes that LSC may question the costs associated with contracts if the timing and amounts of contracts with an individual vendor appear calculated to avoid the prior approval requirement, rather than being based on reasonable business judgment.

Finally, for temporary employees, as discussed below, contracts for temporary employees will be exempt from the prior approval process.

Comment 2: In response to the proposed prior approval requirement for services contracts, NLADA noted that obtaining prior approval may be problematic for programs seeking auditors for annual audits that are required to comply with standards established by LSC's Office of Inspector General (OIG). NLADA stated that at least ten programs spend over $25,000 on required annual audits, and some of these programs are in areas with few choices for appropriate and eligible auditors. These auditors are in demand, and time is of the essence in retaining an accounting firm to conduct the LSC-compliant audit. NLADA expressed concern that a delay to seek prior approval would impede a program's ability to retain competent auditors and potentially compromise the program's ability to meet deadlines.

Response: After reviewing NLADA's comment, LSC concluded that recipients' hiring of auditors to conduct audits that must comply with OIG standards and be submitted to OIG should not be subject to LSC prior approval process. Accordingly, LSC will revise § 1631.2(g), defining services, to exclude such audits from the requirement.

Comment 3: Regarding the proposed prior approval requirement for services contracts, Legal Action noted challenges allocating costs of services such as legal research through Westlaw and record storage services like Iron Mountain, each of which could exceed $25,000 in a year. For each service, Legal Action noted that, in the past, the overall cost has exceeded $25,000, but the cost apportioned to LSC funds may or may not exceed $25,000.

Response: For a services contract (or any other contract) funded by LSC and another source, the contract triggers LSC's prior approval requirement once the amount apportioned to LSC funds exceeds $25,000. LSC will revise the rule to clarify this apportionment calculation.

Section 1630.6(b)(1)(iii). Proposed § 1630.6(b)(1)(iii) required prior approval for “purchases of real estate” that exceed $25,000. Proposed § 1631.2(f) defined real estate as “land, buildings (including capital improvements), and property interests in land and buildings (e.g., tenancies, life estates, remainders, reversions, easements), excluding movable personal property.”

Comment: Commenters noted that proposed § 1631.2(f) included tenancies in the definition of real estate. According to NJP, this would be a “significant departure from prior practice.” NLADA, NJP, MAP, ILS, and CLS requested clarification that leases of real property do not require prior approval.

Response: LSC did not intend to subject leases of real property to prior approval requirements. LSC will revise the definition of real estate in § 1631.2(f) to include land and buildings but not personal property. This definition reflects the definition provided in the PAMM. Because the term real estate is also used in part 1630, LSC will also revise the definition of real estate in § 1630.2(g) to mirror the updated definition found in § 1631.2(f).

Section 1630.6(b)(1)(iv). Proposed § 1630.6(b)(1)(iv) required a recipient to obtain prior approval for capital improvements costing $25,000 or more of LSC funds.

Comment: NJP, MAP, and NLADA expressed concern that requiring prior approval for capital improvements may impair a recipient's ability to negotiate capital improvements as part of lease negotiations. NJP expressed concern about leases that include provisions for pass-through building operating charges. NJP observed that reconciliation for pass-through costs occurs after the improvements are made, and a recipient may not be able to obtain prior approval or even control the landlord's selection of the vendor. MAP suggested that capital improvements that are part of a lease negotiation be explicitly exempt from the prior approval requirement.

Response: Existing section 1630.5(b)(4) and section 4(f) of the PAMM currently require recipients to seek prior approval of capital expenditures when the cost of the expenditures exceeds $10,000. This requirement is not new to the proposed rule. It does not currently apply to capital improvements negotiated as part of a recipient's lease arrangements. LSC considered the value of reviewing capital improvements in this context compared to the burden imposed. LSC concluded that the cost of the review outweighs benefits and therefore will not extend the prior approval requirement for capital improvements negotiated as part of a recipient's lease arrangement. Proposed § 1630.6(b)(1)(iv) applied only to those capital expenditures that a recipient seeks to make to leased property after it enters the lease.

Sections 1630.7, 1630.8, and 1630.9 Membership fees or dues; Contributions; Tax-sheltered annuities, retirement accounts, and penalties. LSC proposed to redesignate §§ 1630.14 (Membership fees or dues), 1630.15 (Contributions), and 1630.16 (Tax-sheltered annuities, retirement accounts, and penalties) as §§ 1630.7-1630.9, respectively, with no changes. LSC received no comments on these sections.

Section 1630.10 Recipient policies, procedures, and recordkeeping. Effective April 1, 2017, LSC relocated the sections of part 1627 governing the use of recipient funds to pay membership fees or dues, make contributions to other organizations, or contribute to tax-sheltered annuities, retirement accounts, and penalties to part 1630. LSC unintentionally failed to relocate § 1627.7 requiring recipient policies, procedures, and recordkeeping in part 1630 at the same time. Consequently, this section is a necessary carryover from part 1627 to ensure that recipients retain or develop written policies and procedures to ensure that their staff know about and comply with §§ 1630.7-1630.9, and the final rule will include these requirements. The final rule will also renumber the sections that follow.

Subpart C governs LSC's decisions to question costs and the appeals procedure by which a recipient challenges questioned costs.

Section 1630.11 Review of questioned costs. In the proposed regulation, LSC eliminated the five-year lookback period to recover questioned costs from a recipient because, based on its oversight experience, limiting LSC's ability to recover misspent costs is inconsistent with its duty to responsibly administer appropriated funds. On several occasions, LSC has found that misuse of funds was not discovered during the five-year period, despite LSC's conscientious review of available reports and documentation.

General Comments: NLADA, NJP, CLS, and MAP opposed the removal of the five-year timeframe. They noted that LSC accounting and record retention guidance recommends retaining records for varying times ranging from two years to permanent retention and argued that eliminating the five-year timeframe conflicts with this LSC record retention guidance. NLADA recommended that LSC retain the five-year lookback period to provide programs certainty as to when they may close their books. NLADA also recommended that, if LSC nevertheless eliminates the lookback timeframe, it apply the change only prospectively to account for programs that have legitimately destroyed records pursuant to LSC's guidance. Alternatively, NLADA suggested LSC limit its ability to recover costs beyond the five-year limit only to egregious circumstances such as criminal behavior or intentional violations of LSC regulations. NLADA further questioned whether the cost of a recipient retaining documents—which may exceed $25,000 per year for a program—and the cost of LSC's investigation are worthwhile.

General Response: LSC believes its ability to disallow funds for later-discovered malfeasance should not be limited, notwithstanding an organization's records retention policy. LSC recognizes that proper destruction of records on schedule when there are no open questions is an appropriate defense to not being able to produce records, but time-limited records retention policies are not an appropriate reason to limit LSC's ability to recover misspent costs. Accordingly, LSC will retain the proposal to eliminate the five-year lookback period in the final rule.

Section 1630.11(d)(2). Under the current questioned costs procedure, a recipient has 30 days from the date it receives a notice of questioned costs from LSC to respond with evidence and an argument for why LSC should not disallow the costs. If the recipient does not respond within 30 days, LSC management must issue a second decision. LSC believes this second step is redundant because it places an unnecessary burden to confirm its own action in the absence of a recipient challenge. LSC proposed to replace this step with proposed § 1630.10(d)(2), which stated that if the recipient does not respond to the notice of questioned cost within 30 days, the notice automatically converts to LSC's final written decision.

Comment 1: NLADA commented that the timeframes are inequitable because, while LSC has “an unlimited time period to investigate a questioned cost, prepare its written determination, and then another 60 days to respond to the recipient[,]” a recipient has 30 days to respond to a questioned cost. NLADA asserted that “[i]n fairness,” respondents should have at least 60 days to prepare their response to LSC and recipients should have the opportunity to extend the time to respond for at least 30 days for good cause.

Response: The 30-day timeframe in the proposed rule was adopted without change from current § 1630.7(c). That paragraph provides that the recipient may respond to a written notice of questioned costs, and, if the recipient does not respond, LSC will make a decision based on the information available. The proposed rule effectively reflected the same procedure. LSC has determined that fixing a timeframe by which recipients must respond, either in substance or by seeking an extension pursuant to § 1630.3(b), ensures LSC can proceed with its questioned costs review in an expeditious manner.

As described above, a recipient may seek an extension for good cause, pursuant to proposed § 1630.3(b). LSC's assessment of whether the recipient has shown “good cause” inherently takes into consideration the length of extension a recipient would need. Therefore, LSC will retain language from the proposed rule.

Comment 2: As described in the § 1630.2 discussion, NJP and CLS expressed concern that the extension of time is not referenced in either the proposed § 1630.2(d) definition or proposed § 1630.10(d)(2) (final rule § 1630.11(d)(2)).

Response 2: For the reasons stated earlier in this preamble, LSC will amend proposed § 1630.10(d)(2), renumbered as § 1630.11(d)(2), to clarify that a recipient must respond, either with a substantive response or a request for extension, within 30 days of receiving the questioned costs notice.

Section 1630.12 Appeals to the President. LSC proposed to move existing § 1630.7(e)-(g) to § 1630.11 with one substantive change. LSC proposed to introduce a requirement that prohibits a recipient from appealing a written decision to the LSC President when the recipient did not seek review of the initial notice of questioned costs. LSC believes that a senior manager with direct oversight over the office that issues a notice of questioned costs should have the first opportunity to review the evidence relating to the decision to question costs because the review is better conducted at an earlier stage than during review by the President. Appeals to the President can address any relevant actions by LSC including substantive decisions such as the amount questioned and procedural decisions such as whether to extend a submission deadline.

Comment: NLADA commented that, where a recipient does not respond to LSC's written notice of questioned costs, the decision becomes final and, thus, an LSC denial of a request for extension of time may not be appealed to the president. NLADA noted that recipients “should have a full and fair opportunity to respond to LSC, including the ability to appeal to the president if LSC management denies a recipient an extension of time to respond to a questioned cost finding.”

Response: A recipient may fully respond to LSC's notice at the management level. A “full and fair opportunity to respond” does not require providing recipients the ability to skip management-level review and appeal directly to the President. LSC will therefore retain the procedural change proposed in the NPRM, now renumbered as § 1630.12.

Section 1630.13 Recovery of disallowed costs and other corrective action. In the NPRM, LSC proposed to redesignate existing § 1630.8 to § 1630.12 with only minor technical changes to reflect the removal of the term final action from the rule. LSC received no comments on this section. The final rule renumbers this section as § 1630.13.

Section 1630.14 Other remedies; effect on other parts. LSC proposed to redesignate existing § 1630.9 as § 1630.13 with only minor technical edits. LSC received no comments on this section. The final rule renumbers this section as § 1630.14.

Sections 1630.15; 1630.16; 1630.17 Applicability to subgrants; Applicability to non-LSC funds; Applicability to derivative income. LSC proposed to redesignate existing §§ 1630.10 (Applicability to subgrants); 1630.11 (Applicability to non-LSC funds); and 1630.12 (Applicability to derivative income) as §§ 1630.14-1630.16, respectively, without change. LSC received no comments on these sections. The final rule renumbers these sections as §§ 1630.15-1630.17, respectively.

Section 1630.18 Applicability. Proposed § 1630.17, regarding closeout procedures, applies when a recipient changes its current identity or status as a legal entity.

Comment: MAP suggested defining the term “change in current identity or status as a legal entity” to ensure that a relatively minor change (such as a corporate name change) or a structural change does not trigger this section. MAP proposed a limited definition such as “a change in legal status under state corporate law with the effect that a different legal entity becomes the LSC recipient.”

Response: LSC intended to include those mergers where the recipient ceased to exist. LSC did not intend proposed § 1630.17 to apply to name or logo changes. LSC will revise proposed § 1630.17(a), renumbered as § 1630.18(a), to state that the rule applies to mergers or consolidations with one LSC recipient that result in another LSC recipient ceasing to exist as a legal entity. In those situations, only the LSC recipient that is surrendering its legal status must comply with the closeout procedures in Subpart D. Additionally, LSC will replace the proposed language of § 1630.17, renumbered as § 1630.18, with “Ceases to exist as a legal entity[.]”

Section 1630.19 Closeout plan; timing. In the NPRM, LSC proposed to require recipients who stop receiving LSC funding to provide LSC with a plan for the orderly closeout of the grant. LSC received no comments on this section. LSC will renumber the proposed section as § 1630.19.

Section 1630.20 Closeout costs. In the NPRM, LSC proposed to formalize its policies for approving the use of LSC funds to complete closeout activities, including requiring recipients to submit a detailed budget and timeline and allowing LSC to withhold unreleased funds until the recipient has satisfactorily completed its closeout procedures. LSC received no comments on this section. The final rule will renumber proposed § 1630.19 as § 1630.20.

Section 1630.21 Returning funds to LSC. In proposed § 1630.20, LSC proposed to formalize procedures for recipients to return to LSC excess fund balances and derivative income received after the end of the LSC grant period. LSC received no comments on this section. LSC will renumber proposed § 1630.20 as § 1630.21.

Organizational note: As described in the discussion for § 1631.4, the final rule will eliminate § 1631.4 and renumber sections that follow. This preamble reflects the updated numbering except where noted.

Section 1631.1 Purpose. In the NPRM, LSC proposed to describe the purpose of part 1631 as setting standards for policies governing certain purchases and establishing requirements governing the use and disposition of property purchased with LSC funds. LSC received no comments on this section.

Section 1631.2 Definitions. In the NPRM, LSC adopted several definitions from the PAMM into part 1631 and added new definitions.

Section 1631.2(f). LSC proposed to change the PAMM term real property to real estate and to simplify the rule's language. LSC also proposed to revise the term's definition for clarity. LSC does not intend the change from “land, buildings, and appurtenances, including capital improvements thereto, but not including moveable personal property” in the existing PAMM to limit, narrow, or expand the scope of property captured in the revised definition.

Comment: As discussed in the commentary regarding § 1630.6(b)(1)(iii), commenters noted that proposed § 1631.2(f) included tenancies in the definition of real estate and requested that leases of real estate not require prior approval.

Response: As previously explained, LSC did not intend to subject leases of real estate to prior approval requirements and will revise the definition.

Section 1631.2(g). In the NPRM, LSC proposed to define services as services rendered by members of a profession or people who have a special skill and are not employed by a recipient. The proposed definition explicitly included services such as accounting, banking, cleaning, consultation, training, expert services, equipment maintenance, and transportation. It excluded other categories such as services provided by recipients to employees in addition to regular salaries and wages, such as employee insurance, pensions, and unemployment benefit plans. The preamble to proposed part 1631 explained that employee benefits are not the type of services over which LSC intended to increase its oversight. Accordingly, the NPRM preamble explained that contracts for employee benefits are not subject to the definition of services.

Comment 1: NJP expressed concern that this definition was “extremely broad” and included many basic office services such as banking and cleaning. In addition, NJP expressed concern that the definition included expert services, transportation, and costs associated with litigation (such as expert witness fees and discovery fees). Finally, NJP and ILS noted the exception for “employee insurance” was potentially confusing. They asked, for example, whether the exclusion of “employee insurance” included malpractice insurance that programs must provide staff attorneys or other types of insurances such as employment practices liability, commercial liability, and Directors and Officers liability insurance.

Response: In response to this comment, LSC will explicitly exclude litigation costs (e.g., expert witness and discovery fees), insurance services, and professional services intended to resolve sensitive personnel issues (e.g., labor counsel or mediation services) from the final rule because LSC did not intend to include these services within the proposed rule.

Comment 2: As described previously in the discussion of § 1630.6, NLADA noted that obtaining prior approval may be problematic for programs seeking auditors to conduct required annual audits that comply with the standards established by OIG.

Response: LSC will revise § 1631.2(g) to exclude such audits from the requirement.

Section 1631.3 Prior approval process. Proposed § 1631.3 relocated the provisions governing the timetable and basis for granting prior approval from existing § 1630.6 to new § 1631.3.

Section 1631.3(b). The proposed rule stated that, for purchases or leases of personal property, contracts for services, and capital improvements, LSC will decide on the request within 30 days of receiving the request. For purchases of real estate, LSC will decide within 60 days. If LSC cannot decide within the allotted time, proposed § 1631.3(b)(3) stated that LSC will provide the requester a date by which it expects to decide.

Comment: NLADA and MAP expressed concern that § 1631.3(b)(3) gives LSC an unlimited amount of time in which to respond to a request if it cannot decide within the time allotted. MAP suggested adding that “if LSC neither makes a decision on a request for prior approval nor informs the requester of a date to make a decision within 60 days of the date of the request, the request is deemed approved.” MAP also suggested adding that “if LSC elects to provide a requester with a date for a decision on a request for prior approval that is longer than 60 days, the date must be within 120 days of the date of the original request; if LSC fails to make a decision by the date it announces, the request is deemed approved.” NLADA recommended that the approval time for making capital improvements not exceed 30 days because making capital improvements may be a complex process to coordinate and, after completing negotiations and calculating costs, prior approval delays may jeopardize the project. NLADA additionally questioned whether LSC has sufficient resources to timely process these approvals.

Response: As discussed at length during the rulemaking on 45 CFR part 1627, LSC believes sound grants management requires review and an affirmative decision on each request to use a significant amount of LSC funds. Consistent with the views expressed in that rulemaking, LSC rejects the “deemed approved” approach to authorizing prior approvals.

LSC also will not establish a rigid timeframe within which it must respond to a request for prior approval if it cannot decide within 60 days. In LSC's experience, recipients may not initially submit all documentation LSC needs to make its decision. LSC must have time to review the materials a recipient submits and request additional documentation as needed. Accordingly, LSC will revise § 1631.3(b) to state that (1) if the requester does not provide all required materials in its initial prior approval request, LSC will contact the requester within 20 days of the request with a preliminary assessment of materials LSC requires to make its decision, if necessary, and (2) LSC will approve or deny a request for prior approval within 30 days of receiving all required materials from the requester (60 days for purchases of real estate). This means that if a recipient submits all information that LSC deems sufficient with the initial request, LSC will approve or deny the request for prior approval within 30 days of the initial request (or 60 days for purchases of real estate). Additionally, because the prior approval process requires LSC to determine whether a recipient complied with its own procurement policy, LSC must have a copy of the recipient's procurement policy. LSC therefore will add a new paragraph (b)(2) to final rule § 1631.8 (requests for prior approval) requiring a request for prior approval to also include a copy of the recipient's procurement policy.

Section 1631.3(d). Proposed § 1631.3(d) stated that a recipient may use over $25,000 of LSC funds to purchase personal property or award a contract for services without prior approval in exigent circumstances. LSC described two exigent circumstances qualifying for the exception: when immediate action is necessary either to avoid imminent harm to the recipient's personnel, physical facilities, or systems; or to remediate or mitigate damage to the recipient's personnel, physical facilities, or systems.

Comment: Commenters remarked that exigent circumstances are limited and subject to discretionary interpretation. NLADA listed the need to retain counsel promptly, staff taking unexpected leave and needing to hire a replacement, and programs receiving non-LSC funds and needing to retain additional services to fulfill a grant requirement as additional situations to consider. Legal Action suggested adding “to avoid disruption to the recipient's client services delivery system” to the list of exigent circumstances. NJP suggested additional scenarios that may constitute exigent circumstances, including natural disasters that require a recipient to contract for timely services, a lawsuit or dispute that requires immediate outside professional resources, a time-sensitive case that requires expertise, audit RFP, audit renewal engagement, and other additional audit work. NLADA and NJP suggested including a provision that provides for “other exigent circumstances.”

Moreover, NLADA noted the proposed rule does not explain what happens if LSC determines a recipient's circumstances did not meet “exigent circumstances” requirements. NLADA asked whether LSC would treat the situation as a questioned cost proceeding: “Would LSC seek to recover costs solely on the basis that the recipient did not seek prior approval, even if the purchase or contract met § 1630.5 reasonable and necessary criteria?”

Response: In addition to the exigent circumstances identified in the proposed rule, LSC agrees that a recipient should be able to act without prior approval if necessary to avoid disruption to the recipient's client services delivery system. Examples of such a disruption would be a power surge that causes a recipient's telecommunications system to stop working, or the occurrence of a natural disaster. LSC will include these two additional situations as exigent circumstances and provide specific examples of each.

Additionally, LSC does not believe that hiring of employees falls within the types of services that LSC intended to regulate in part 1631. Therefore, a recipient would not have to seek prior approval before hiring an attorney, temporary or permanent, to fill the position of an attorney who takes an unexpected prolonged leave. The same rule will apply if the recipient chooses instead to enter a contract with an attorney to fill in for the recipient's attorney on a temporary basis or with a placement firm to place an attorney with the recipient for that period.

Prudent grants management and the basic principle of federal appropriations law that appropriated funds must be spent only on the purposes for which they were awarded do not permit recipients needing to supplement services to fulfill a non-LSC grant requirement to use LSC funds. Accordingly, LSC rejects the proposal to allow use of LSC funds as an exigent circumstance in this situation.

Finally, based on our recommendation that the term services explicitly exclude litigation services and audits, these services do not need to be considered as subject to prior approval in any circumstances, including exigent circumstances.

Section 1631.4 Effective Dates. The proposed language for § 1631.4 made part 1631 effective 90 days after the effective date of the rule, and it made subparts A, C, and E effective 90 days after the effective date of the rule for personal and real property purchased with LSC funds prior to the effective date of this part. This language was adopted from the PAMM. To provide time for LSC to provide appropriate training and recipients to prepare required policies, LSC decided that the final rule will take effect on December 31, 2017. This effective date is well over the 90 days provided in proposed § 1631.4. Therefore, in the final rule, this section will be eliminated and subsequent sections will be renumbered.

Sections 1631.4, and 1631.5 Use of funds; Recipient policies, procedures, and recordkeeping. In these sections of the NPRM, LSC proposed to consolidate sections 6 and 7 of the PAMM with minor changes and require recipients to adopt written policies to implement part 1631. LSC received no comments on these sections. The final rule renumbers these sections.

Subpart B—Procurement Policies and Procedures

Section 1631.6 Characteristics of procurements. In the NPRM, LSC proposed to adopt a list of characteristics to help recipients determine whether an arrangement is a contract (and therefore subject to parts 1630 and 1631) or a subgrant (and therefore subject to part 1627). LSC received no comments on this section. The final rule renumbers this section.

Section 1631.7 Procurement policies and procedures. In the NPRM, LSC identified elements recipients must have in their procurement policies. LSC received one comment on this section from NLADA indicating support. The final rule renumbers this section.

Section 1631.8 Requests for prior approval. Proposed § 1631.9 required a recipient seeking prior approval for a purchase of personal property or services to state how the purchase will further the delivery of legal services to eligible clients. The preamble explained that, “[r]egarding contracts for labor counsel, mediators, or other services needed to address sensitive personnel issues, . . . recipients do not need to disclose in the prior approval request the nature of the problems they are attempting to address.”

Comment: CLS expressed concern with how this provision affects prior approval requests seeking retention of labor counsel. CLS questioned how LSC would be able to determine whether an expense is appropriate or reasonable if a recipient did not disclose the nature of the problem it is trying to address. CLS also noted that prior approval requirements for labor counsel may inappropriately and unnecessarily insert LSC into a recipient's labor-management situations and that seeking prior approval may delay negotiations. CLS recommended that labor and employment services contracts never require prior approval. MAP noted that in services contracts where contracts “directly impact private and confidential matters[,]” local management should retain discretion.

MAP was also “especially troubled” by LSC's comments in the preamble stating that, in circumstances where the recipient does not disclose the nature of the problems it is attempting to address but rather only how the services will further their legal services delivery, “a statement that the service is necessary to ensure the efficient functioning of the office may satisfy that requirement” (emphasis added). MAP requested that if LSC intends to approve requests that do not disclose the nature of the problem, the regulation should explicitly so state.

Response: In response to these comments, LSC will exclude contracts for labor counsel and other services necessary to address internal personnel issues from the definition of services in the final rule version of § 1631.2. Additionally, to avoid verbosity, LSC will change final rule § 1631.8(b) to require a “statement of need” rather than a statement explaining how the purchase will further the delivery of legal services.

Section 1631.9 Applicability of part 1630. In this section, LSC proposed to restate the applicability of part 1630 to all leases, purchases, and contracts made using LSC funds. LSC received no comments on this section. The final rule renumbers the proposed section to § 1631.9.

Section 1631.10 Use of property in compliance with LSC's statutes and regulations. LSC proposed to adopt § 5(a), (d), and (e) of the PAMM in proposed § 1631.11 with only minor technical changes. LSC received no comments on this section. The final rule renumbers this section.

Section 1631.11 Intellectual property. The proposed rule adopted § 5(g) of the PAMM without change. LSC received no comments on this section during the public comment period. During the May 23, 2017 meeting of the Operations and Regulations Committee, the Chair of the Committee expressed concern that LSC's proposal to adopt language that identified only copyright as a type of intellectual property protection available to recipients would have two effects. One was that the rule unnecessarily limited the kind of protection recipients could seek for products or works developed using LSC funds. The other was that the existing language could create an incentive for recipients to use other types of intellectual property protections, where available, to avoid falling within the scope of proposed § 1631.12. See Transcript, Telephonic Meeting of the Operations and Regulations Committee, Legal Services Corporation Board of Directors, May 23, 2017, at 20-21. The Chair recommended that LSC replace this language with the language in LSC's Technology Initiative Grants' (TIG) Grant Assurances, which have been revised more currently than the language in § 5 of the PAMM and speak more generally in terms of recipients' ownership rights in works they develop or improve using LSC funds. There were no public comments in opposition to the Chair's proposal at the meeting. Consequently, in the final rule, LSC will adopt the recommendation and revise proposed § 1631.12 to track the language of the TIG Grant Assurances. This section will be renumbered as § 1631.11.

Section 1631.12 Disposing of personal property purchased with LSC funds. Proposed § 1631.13(a) described how a recipient may dispose of personal property purchased with LSC funds. The proposed rule allowed recipients to sell or otherwise dispose of the personal property with no further obligation to LSC where the fair market value of the property is negligible. The proposed rule also permitted recipients to sell the property at a reasonable negotiated price, without advertising for quotes when the value of the property is $15,000 or less. The proposed rule adopted three options for disposing of personal property—selling the property after advertising and receiving quotes when the property's value exceeds $15,000; transferring the property to another LSC funding recipient; and transferring the personal property to another organization serving the poor in the same area—from § 6 of the PAMM.

Comment: NLADA noted that it appreciated the provision allowing recipients to dispose of personal property with little or no value. NLADA also noted that a recipient may advertise property worth over $15,000, yet receive no quotes. NLADA recommended adding language stating that “if a program does not receive any quotes, the program may negotiate a reasonable price for disposal of the property.”

Response: LSC agrees with NLADA's comment. LSC will change paragraph (4) to this section in the final rule to allow a recipient to negotiate a reasonable price for disposal of the property if, after advertising the personal property for 14 consecutive days, the recipient receives no reasonable quotes. This section will be renumbered as § 1631.12 in the final rule.

Section 1631.13 Use of derivative income from sale of personal property purchased with LSC funds. LSC proposed to adopt § 6(e) of the PAMM without change and add a paragraph requiring recipients to account for income earned from the sale, rent, or lease of personal property purchased with LSC funds. LSC received no comments on this section.

Section 1631.14 Purchasing real property with LSC funds. In the NPRM, LSC proposed to adopt in significant part the requirements of § 4 of the PAMM with several revisions, including two to allow recipients additional flexibility when purchasing real property.

Comment: NJP commented that, although it had no concerns regarding real estate purchase approval requirements generally, to the extent that LSC intended the term real estate to include tenancies, NJP objected to the prior approval requirement.

Response: As noted above in the § 1630.6(b)(1)(iii) discussion, LSC did not intend to include tenancies in the definition of real estate. LSC therefore will revise the definition of real estate in both § 1630.2(g) and § 1631.2(f). LSC believes these revisions will resolve NJP's objection.

Comment: In advance of the Committee's May 23, 2017 meeting, LSC received a comment from a Board member recommending that LSC revise proposed § 1631.15(b)(8) to reflect contemporary language regarding compliance with disability laws.

Response: LSC agrees and will revise proposed § 1631.15(b)(8) accordingly and renumber the section as § 1631.14(b)(8).

Section 1631.15 Capital improvements. LSC proposed to adopt § 4(f) of the PAMM in substantial part and to replace existing § 4(1)(ii) of the PAMM with a requirement that recipients provide documentation showing they complied with their own procurement process developed under (final rule) § 1631.8.

Comment: NJP again commented that, to the extent this section applies to leases and tenant improvements negotiated as part of the lease and rental price, NJP objects to imposing prior approval requirements.

Response: As noted above in the § 1630.6(b)(1)(iii) and § 1631.14 discussions, LSC did not intend to include tenancies or leases in the definition of real estate and will revise the definition in the final rule. LSC currently does not require prior approval for leases of real estate and, after considering the costs and benefits of requiring prior approval for such leases, opted to continue its current policy. LSC did not intend proposed § 1631.16 (final rule § 1631.15) to cover capital improvements negotiated as part of the lease and rental price for real estate leased by recipients.

Section 1631.16 Using real estate purchased with LSC funds. Section 5(a) of the PAMM currently states that recipients “may use LSC funds to acquire and use personal and real property for the primary purpose of delivering legal services to eligible clients” in accordance with applicable laws, regulations, and guidance. The preamble to the NPRM explained that LSC proposed to adopt this section of the PAMM as proposed § 1631.17 “with only minor technical changes.” Accordingly, the text of proposed § 1631.17 stated, “A recipient must use real estate purchased or leased, in whole or in part with LSC funds primarily to deliver legal services to eligible clients consistent with the requirements of the LSC Act, applicable appropriations acts, and LSC regulations.” 81 FR 75006, 75023, Oct. 28, 2017 (emphasis added).

Comment: NLADA and NJP commented that using the word must in the proposed regulation instead of may as in the PAMM is a major change because it appears to prevent a program from subleasing a building or space to a party that does not deliver legal services in accordance with LSC regulations. They noted that recipients may face financial difficulties if not allowed to sublet all or part of buildings purchased or leased using LSC funds. For example, NLADA observed that some programs have smaller regional offices that programs have had to close due to funding cuts. NLADA commented that, under the proposed regulation, the program would need to leave the property vacant rather than sublease the property. NLADA suggested retaining the permissive may rather than changing the language to must. NJP suggested that the regulation allow for use of real estate to “support the delivery of legal services.”

Response: NLADA and NJP are correct that LSC changed the wording of Section 5(a) of the PAMM in the proposed rule. LSC made this change to reflect its position that if recipients use LSC funds to purchase real estate, the real estate must be used primarily for purposes of carrying out the LSC grant. That said, LSC's intent is not to bar recipients from putting real estate originally purchased or leased to provide legal services to other uses where circumstances, such as funding, change. Precluding such alternative uses into perpetuity would cause closed offices and invested funds to sit idle, clearly not a prudent or productive use of real estate or invested funds.

Current practice under section 5 of the PAMM permits a recipient to lease or sublease vacant space that the recipient is unable to use to another organization or business. In changing the term “may” in the PAMM to “must” in the proposed rule, LSC did not intend to change this practice in the proposed rule. The final rule will clarify that a recipient must use real estate purchased with LSC funds for purposes consistent with applicable law and regulations. The rule will clarify that a recipient that does not need some or all the real estate to carry out its legal services activities may use the space for other activities described in paragraphs (b) and (c). The other activities cannot interfere with the recipient's performance of the LSC grant, and the recipient cannot provide the space to an organization that engages in restricted activities without charging the organization an amount of rent equivalent to the amount other non-profits charge to rent the same amount of space in similar circumstances.

Section 1631.17 Maintenance. LSC proposed to include a new section requiring recipients to maintain real estate purchased with LSC funds in efficient operating condition and in compliance with state and local standards and codes. LSC received no comments on this section. The final rule will renumber this section.

Section 1631.18 Insurance. LSC proposed to introduce minimum standards for the insurance of LSC-funded property. LSC received no comments on this section. The final rule will renumber this section.

Section 1631.19 Accounting and reporting to LSC. Proposed § 1631.20 required a recipient to maintain an accounting of the amount of LSC funds relating to the purchase or maintenance of real estate purchased with LSC funds and provide the accounting for each year to LSC. The final rule will renumber this section.

Comment: NLADA noted that, for some programs, the use of LSC funds to purchase or maintain real property occurred over ten years ago, in which case the recipient may have destroyed the records. As a result, a recipient would not be able to account for such purchases or maintenance. In these situations, NLADA suggested applying this provision prospectively.

Response: LSC does not, as a general rule, issue regulations with a retroactive effect. This means that the requirement would apply from the effective date of the proposed revisions to part 1631 forward. In the Accounting Guide for LSC Recipients, LSC recommends retention times for various categories of documents, including property documents. Accounting Guide for LSC Recipients, Appx. II, pp. 69-71 (2010 Ed.). According to the Accounting Guide, recipients should maintain annual financial statements, documentation related to land and buildings, depreciation schedules, general journals, and general ledgers permanently. Id. pp. 70-71. For other documentation related to the purchase and maintenance of real estate, such as the cash disbursements ledger, canceled checks, billings for services, and expense bills, LSC recommends a retention period of seven years or the period required by state law, whichever is longer. Id. To the extent that a recipient that owns real estate on the effective date of the revised rule has properly destroyed records related to the purchase or maintenance of such real estate according to its records retention schedule, LSC would not consider that recipient out of compliance with the revised rule. Recipients will need to maintain the accounting documents described in proposed § 1631.20, renumbered in the final rule as § 1631.19, from the effective date of the rule onward.

Section 1631.20 Disposing of real estate purchased with LSC funds. In the NPRM, LSC proposed to adopt § 7 of the PAMM in substantial part. In a change from the PAMM, LSC proposed to require that all anticipated dispositions of real estate purchased using LSC funds be subject to LSC's prior approval, consistent with the federal government's policy regarding grantee disposal of property purchased with federal funds. 2 CFR 200.311(c). LSC received no comments on this section.

Section 1631.21 Retaining income from sale of real property purchased with LSC funds. In the NPRM, LSC proposed to consolidate §§ 6(e) and 8(c) of the PAMM into proposed § 1631.22 and make technical edits. LSC received no comments on this section. The final rule will renumber this section.

For the reasons stated in the preamble, the Legal Services Corporation amends 45 CFR Chapter XVI as follows:

This is a summary of the Commission's Report and Order, FCC 17-88, adopted on July 11, 2017, and released on July 12, 2017. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) Web site at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) Web site at http://fjallfoss.fcc.gov/ecfs2/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this Report and Order, we expand the availability of video described programming on top-rated broadcast and nonbroadcast networks. Specifically, we adopt the proposal to increase the amount of described programming on each “included network” 1 carried by a covered broadcast station or multichannel video programming distributor (MVPD), from 50 hours per calendar quarter to 87.5 hours per quarter. Covered broadcast stations and MVPDs must start providing the additional hours of video described programming on “included networks” in the calendar quarter beginning on July 1, 2018. We also provide more flexibility than exists under our current rules regarding when the additional hours of described programming may be aired. This update to our rules will help ensure that Americans who are blind or visually impaired can be connected, informed, and entertained by television.

This document announces that OMB approved the information collection requirements contained in the Commission's Report and Order, FCC 17-29, published at 82 FR 18240, April 18, 2017. The OMB Control Numbers are 3060-0016, 3060-0017, 3060-0027, 3060-0837, 3060-0928, 3060-0932, 3060-1176, and 3060-1177. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Numbers, 3060-0016, 3060-0017, 3060-0027, 3060-0837, 3060-0928, 3060-0932, 3060-1176, and 3060-1177 in your correspondence. The Commission will also accept your comments via the Internet if you send them to [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval for the modified collection requirements contained in the Commission's rules at 47 CFR 73.3800, 73.6028, and 74.799 and in OMB Control Numbers 3060-0016, 3060-0017, 3060-0027, 3060-0837, 3060-0928, 3060-0932, 3060-1176, and 3060-1177. Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers are 3060-0016, 3060-0017, 3060-0027, 3060-0837, 3060-0928, 3060-0932, 3060-1176, and 3060-1177.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control No.: 3060-0016.

OMB Approval Date: July 25, 2017.

OMB Expiration Date: July 31, 2020.

Title: FCC Form 2100, Application for Media Bureau Audio and Video Service Authorization, Schedule C (Former FCC Form 346); Sections 74.793(d) and 74.787, Low Power Television (LPTV) Out-of-Core Digital Displacement Application; Section 73.3700(g)(1)-(3), Post-Incentive Auction Licensing and Operations; Section 74.799, Low Power Television and TV Translator Channel Sharing.

Form No.: FCC Form 2100, Schedule C.

Respondents: Business or other for-profit entities; Not for profit institutions; State, local or Tribal government.

Number of Respondents and Responses: 4,460 respondents and 4,460 responses.

Estimated Time per Response: 2.5-7 hours (total of 9.5 hours).

Frequency of Response: One-time reporting requirement; on occasion reporting requirement; third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in Section 154(i), 303, 307, 308 and 309 of the Communications Act of 1934, as amended.

Total Annual Burden: 42,370 hours.

Annual Cost Burden: $24,744,080.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: FCC Form 2100, Schedule C is used by licensees/permittees/applicants when applying for authority to construct or make changes in a Low Power Television, TV Translator or TV Booster broadcast station.

The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted a Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule C itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 section 74.799 (previously 74.800) permits LPTV and TV translator stations to seek approval to share a single television channel with other LPTV and TV translator stations and with full power and Class A stations. Stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule C in order to have the channel sharing arrangement approved. If the sharing station is proposing to make changes to its facility to accommodate the channel sharing, it must also file FCC Form 2100 Schedule C.

OMB Control Number: 3060-0017.

OMB Approval Date: July 26, 2017.

OMB Expiration Date: July 31, 2020.

Title: Application for Media Bureau Audio and Video Service Authorization, FCC 2100, Schedule D.

Form Number: FCC Form 2100, Schedule D.

Respondents: Business or other for profit entities; Not for profit institutions; State, local or Tribal government.

Number of Respondents/Responses: 570 respondents; 570 responses.

Estimated Hours per Response: 1.5 hours per response.

Frequency of Response: One time reporting requirement; On occasion reporting requirement.

Total Annual Burden: 855 hours.

Total Annual Cost: $68,400.

Obligation to Respond: Required to obtain benefits. The statutory authority for this information collection is contained in sections 154(i), 301, 303, 307, 308 and 309 of the Communications Act of 1934, as amended.

Nature and Extend of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Assessment: No impact(s).

Needs and Uses: Applicants/licensees/permittees are required to file FCC Form 2100, Schedule D when applying for a Low Power Television, TV Translator or TV Booster Station License.

The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule D itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 section 74.799 (previously 74.800) permits LPTV and TV translator stations to seek approval to share a single television channel with other LPTV and TV translator stations and with full power and Class A stations. Stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule D in order to complete the licensing of their channel sharing arrangement.

OMB Control No.: 3060-0027.

OMB Approval Date: July 26, 2017.

OMB Expiration Date: July 31, 2020.

Title: Application for Construction Permit for Commercial Broadcast Station, FCC Form 301; FCC Form 2100, Application for Media Bureau Audio and Video Service Authorization, Schedule A; 47 CFR 73.3700(b)(1) and (2) and 73.3800, Post Auction Licensing.

Form No.: FCC Form 2100, Schedule A.

Respondents: Business or other for-profit entities; Not for profit institutions; State, local or Tribal Government.

Number of Respondents and Responses: 3,090 respondents and 6,526 responses.

Estimated Time per Response: 1-6.25 hours.

Frequency of Response: One-time reporting requirement; On occasion reporting requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in Sections 154(i), 303 and 308 of the Communications Act of 1934, as amended.

Total Annual Burden: 15,317 hours.

Annual Cost Burden: $62,444,288.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule A itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 CFR 73.3800 allows full power television stations to channel share with other full power stations, Class A, LPTV and TV translator stations outside of the incentive auction context. Full power stations file FCC Form 2100, Schedule A in order to obtain Commission approval to operate on a shared channel.

OMB Control No.: 3060-0837.

OMB Approval Date: July 26, 2017.

OMB Expiration Date: July 31, 2020.

Title: FCC Form 2100, Application for Media Bureau Audio and Video Service Authorization, Schedule B (Former FCC Form 302-DTV), Section 73.3700(b)(3) and Section 73.3700(h)(2).

Form No.: FCC Form 2100, Schedule B.

Respondents: Business or other for-profit entities; Not for profit institutions.

Number of Respondents and Responses: 975 respondents and 975 responses.

Estimated Time per Response: 2 hours.

Frequency of Response: One-time reporting requirement and on occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in Sections 154(i), 307, 308, 309, and 319 of the Communications Act of 1934, as amended; the Community Broadcasters Protection Act of 1999, Public Law 106-113, 113 Stat. Appendix I at pp. 1501A-594-1501A-598 (1999) (codified at 47 U.S.C. 336(f)); and the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 6402 (codified at 47 U.S.C. 309(j)(8)(G)), 6403 (codified at 47 U.S.C. 1452), 126 Stat. 156 (2012) (Spectrum Act).

Total Annual Burden: 1,950 hours.

Annual Cost Burden: $585,945.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: FCC Form 2100, Schedule B (formerly FCC Form 302-DTV) is used by licensees and permittees of full power broadcast stations to obtain a new or modified station license and/or to notify the Commission of certain changes in the licensed facilities of those stations. It may be used: (1) To cover an authorized construction permit (or auxiliary antenna), provided that the facilities have been constructed in compliance with the provisions and conditions specified on the construction permit; or (2) To implement modifications to existing licenses as permitted by 47 CFR 73.1675(c) or 73.1690(c).

The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, (Low Power Television) LPTV and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule B itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 CFR 73.3800 allows full power television stations to channel share with other full power stations, Class A, LPTV and TV translator stations outside of the incentive auction context. Full power stations file FCC Form 2100, Schedule B in order to complete the licensing of their shared channel.

OMB Control No.: 3060-0928.

OMB Approval Date: July 27, 2017.

OMB Expiration Date: July 31, 2020.

Title: FCC Form 2100, Application for Media Bureau Audio and Video Service Authorization, Schedule F (Formerly FCC 302-CA); 47 CFR 73.6028.

Form No.: FCC Form 2100, Schedule F.

Respondents: Business or other for-profit entities; Not for profit institutions; State, local or Tribal Government.

Number of Respondents and Responses: 975 respondents and 975 responses.

Estimated Time per Response: 2 hours.

Frequency of Response: One-time reporting requirement and on occasion reporting requirement.

Total Annual Burden: 1,950 hours.

Annual Cost Burden: $307,125.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: The FCC Form 2100, Schedule F is used by Low Power TV (LPTV) stations that seek to convert to Class A status; existing Class A stations seeking a license to cover their authorized construction permit facilities; and Class A stations entering into a channel sharing agreement. The FCC Form 2100, Schedule F requires a series of certifications by the Class A applicant as prescribed by the Community Broadcasters Protection Act of 1999 (CBPA). Licensees will be required to provide weekly announcements to their listeners: (1) Informing them that the applicant has applied for a Class A license and (2) announcing the public's opportunity to comment on the application prior to Commission action.

The Commission submitted this information collection to OMB for approval which resulted from the provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, LPTV and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule F itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 CFR 73.6028 permits Class A stations to seek approval to share a single television channel with LPTV, TV translator, full power and Class A television stations. Class A stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule F in order to complete the licensing of their channel sharing arrangement.

OMB Control No.: 3060-0932.

OMB Approval Date: July 27, 2017.

OMB Expiration Date: July 31, 2020.

Title: FCC Form 2100, Application for Media Bureau Audio and Video Service Authorization, Schedule E (Former FCC Form 301-CA); 47 CFR 73.3700(b)(1)(i)-(v) and (vii), (b)(2)(i) and (ii); 47 CFR Section 74.793(d).

Form No.: FCC Form 2100, Schedule E (Application for Media Bureau Audio and Video Service Authorization) (Former FCC Form 301-CA).

Respondents: Business or other for-profit entities; Not for profit institutions; State, Local or Tribal Government.

Number of Respondents and Responses: 745 respondents and 745 responses.

Estimated Time per Response: 2.25 hours-6 hours (for a total of 8.25 hours).

Frequency of Response: One-time reporting requirement; On occasion reporting requirement; Third party disclosure requirement; Recordkeeping requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in 47 U.S.C. 151, 154(i), 157 and 309(j) as amended; Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 6402 (codified at 47 U.S.C. 309(j)(8)(G)), 6403 (codified at 47 U.S.C. 1452), 126 Stat. 156 (2012) (Spectrum Act) and the Community Broadcasters Protection Act of 1999.

Total Annual Burden: 6,146 hours.

Annual Cost Burden: $4,035,550.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: FCC Form 2100, Schedule E (formerly FCC Form 301-CA) is to be used in all cases by a Class A television station licensees seeking to make changes in the authorized facilities of such station. FCC Form 2100, Schedule E requires applicants to certify compliance with certain statutory and regulatory requirements. Detailed instructions on the FCC Form 2100, Schedule E provide additional information regarding Commission rules and policies. FCC Form 2100, Schedule E is presented primarily in a “Yes/No” certification format. However, it contains appropriate places for submitting explanations and exhibits where necessary or appropriate. Each certification constitutes a material representation. Applicants may only mark the “Yes” certification when they are certain that the response is correct. A “No” response is required if the applicant is requesting a waiver of a pertinent rule and/or policy, or where the applicant is uncertain that the application fully satisfies the pertinent rule and/or policy. FCC Form 2100, Schedule E filings made to implement post-auction channel changes will be considered minor change applications.

Class A applications for a major change are subject to third party disclosure requirement of Section 73.3580 which requires local public notice in a newspaper of general circulation of the filing of all applications for major changes in facilities. This notice must be completed within 30 days of the tendering of the application. This notice must be published at least twice a week for two consecutive weeks in a three-week period. A copy of this notice must be placed in the public inspection file along with the application.

47 CFR 74.793(d) requires that digital low power and TV translator stations shall be required to submit information as to vertical radiation patterns as part of their applications (FCC Forms 346 and 301-CA) for new or modified construction permits.

The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 17-29. On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, LPTV and TV translator stations.

Although there are no changes to the FCC Form 2100, Schedule E itself, there are changes to the substance, burden hours, and costs as described herein.

The information collection requirements contained in 47 CFR 73.6028 permits Class A stations to seek approval to share a single television channel with Low Power Television (LPTV), TV translator, full power and Class A television stations. Class A stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule E in order to obtain Commission approval for their channel sharing arrangement.

OMB Control Number: 3060-1176.

OMB Approval Date: July 31, 2017.

OMB Expiration Date: July 31, 2020.

Title: MVPD Notice, Section 73.3700.

Form Number: Not applicable.

Respondents: Business or other for profit entities; Not for profit institutions; State, local or Tribal government.

Number of Respondents and Responses: 735 respondents; 735 responses.

Estimated Hours per Response: 1-2 hours.

Frequency of Response: One time reporting requirement; Third party disclosure requirement.

Total Annual Burden: 1,397 hours.

Total Annual Cost: $43,800.

Obligation to Respond: Required to obtain benefits. The statutory authority for this information collection is contained in sections 1, 4(i) and (j), 7, 154(i), 301, 302, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336 and 337 of the Communications Act of 1934, as amended.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Assessment: No impact(s).

The information collection requirements contained in 47 CFR 73.3700 requires that full power and Class A television stations assigned a new channel in the incentive auction repacking, relinquishing their channel or moving to a new channel as a result of a winning bid in the auction, notify MVPDs of their termination of operations or change in channel.

On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations. Channel sharing stations also must notify MVPDs of the fact that stations will be terminating operations on one channel to share another station's channel.

The information collection requirements contained in 47 CFR 73.3800, Full Power Television Channel Sharing Outside the Incentive Auction, Section 73.6028 Class A Television Channel Sharing Outside the Incentive Auction and Section 74.799 Low Power Television and TV Translator Channel Sharing require that stations seeking to channel share outside of the incentive auction provide notification to MVPDs of the fact that the station will be terminating operations on one channel to share another station's channel.

OMB Control No.: 3060-1177.

OMB Approval Date: July 31, 2017.

OMB Expiration Date: July 31, 2020.

Title: 47 CFR 74.800 (redesignated 47 CFR 74.799), Channel Sharing Agreement (CSA).

Form Number: Not applicable.

Respondents: Business or other for profit entities; Not for profit institutions; State, local or Tribal government.

Number of Respondents and Responses: 160 respondents; 160 responses.

Estimated Hours per Response: 1 hr.

Frequency of Response: One time reporting requirement.

Total Annual Burden: 160 hours.

Total Annual Cost: $86,400.

Obligation to Respond: Required to obtain benefits. The statutory authority for this information collection is contained in sections 1, 4(i) and (j), 7, 154(i), 301, 302, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336 and 337 of the Communications Act of 1934, as amended.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Assessment: No impact(s).

Needs and Uses: Full power and Class A television stations that agree to share a single television channel in conjunction with the incentive auction and low power television (LPTV) and TV translator stations that channel share outside of the auction context are required to reduce their agreement (CSA) to writing and submit a copy to the Commission for review. There is no specified format for the CSA but it must contain provisions covering: a. Access to facilities, including whether each licensee will have unrestrained access to the shared transmission facilities; b. Allocation of bandwidth within the shared channel; c. Operation, maintenance, repair, and modification of facilities, including a list of all relevant equipment, a description of each party's financial obligations, and any relevant notice provisions; d. Transfer/assignment of a shared license, including the ability of a new licensee to assume the existing CSA; e. Termination of the license of a party to the CSA, including reversion of spectrum usage rights to the remaining parties to the CSA and f. A provision affirming compliance with the channel sharing requirements in the rules including a provision requiring that each channel sharing licensee shall retain spectrum usage rights adequate to ensure a sufficient amount of the shared channel capacity to allow it to provide at least one Standard Definition (SD) program stream at all times.

The Commission submitted this information collection to OMB for approval which resulted from the rule provisions adopted in the FCC 14-50 and FCC 17-29.

On June 2, 2014 the Commission released a rulemaking titled “Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions,” GN Docket 12-268, Report and Order, FCC 14-50, 29 FCC Rcd 6567 (2014) which adopted rules for holding an Incentive Auction. Full power and Class A stations are permitted to propose to relinquish their channels in the auction and to share the channel of another station.

The information collection requirements contain in 47 CFR 73.3700 requires that full power and Class A television stations seeking approval to channel share in the incentive auction provide the Commission with a copy of their CSA for review.

On March 23, 2017, the Commission adopted the Report and Order, Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, GN Docket No. 12-268, MB Docket No. 03-185, MB Docket No. 15-137, FCC 17-29 (“Report and Order”). This document approved channel sharing outside of the incentive auction context between full power, Class A, Low Power Television (LPTV) and TV translator stations.

The information collection requirements contained in 47 CFR 73.3800, Full Power Television Channel Sharing Outside the Incentive Auction, Section 73.6028, Class A Television Channel Sharing Outside the Incentive Auction and Section 73.799, Low Power Television and TV Translator Channel Sharing require that stations seeking to channel share outside of the incentive auction provide a copy of their “CSA” to the Commission for review.

Regulations governing the red hake fishery are found at 50 CFR part 648. The small-mesh multispecies fishery is managed primarily through a series of exemptions from the Northeast Multispecies Fisheries Management Plan. The regulations describing the process to adjust inseason commercial possession limits of northern red hake are described in § 648.86(d)(4) and (5). These regulations require the NMFS Regional Administrator, Greater Atlantic Region, to reduce the northern red hake possession limit from 3,000 lb (1,361 kg) to 400 lb (181 kg) when landings have been projected to reach or exceed 37.9 percent of the total allowable landings (TAL), unless such a reduction would be expected to prevent the TAL from being reached. The final rule implementing the small-mesh multispecies specifications for 2016-2017 (81 FR 41866; June 28, 2015) set the northern red hake inseason adjustment thresholds. Those thresholds were revised in the final rule implementing the 2017 northern red hake accountability measures (82 FR 21477; May 9, 2017), which reduce the inseason possession limit reduction threshold from 62.5 percent to 37.9 percent of the TAL and removed an additional threshold at 45 percent. This trip limit adjustment threshold is an accountability measure implemented because the annual catch limits (ACL) for northern red hake were exceeded in fishing year 2015.

Using commercial landings data reported through August 3, 2017, the northern red hake fishery is projected to reach 37.9 percent of the TAL on August 7, 2017. Based on this projection, we are required to reduce the commercial northern red hake possession limit from 3,000 lb (1,361 kg) to 400 lb (181 kg) to prevent the TAL from being exceeded. On the effective date of this action, no person may possess on board or land more than 400 lb (181 kg) of northern red hake per trip for the remainder of the fishing year (i.e., through April 30, 2018).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.