Federal Register Vol. 82, No.175,

On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” That Executive Order stated that the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. The Executive Order also stated that it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, for fiscal year 2017, the Executive Order requires that:

(a) “Unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” Sec. 2(a).

(b) “For fiscal year 2017 the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget.” Sec. 2(b); and

(c) “Any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” Sec. 2(c).

Further, the Executive Order requires that for fiscal year 2018, and for each fiscal year thereafter, the head of each agency shall identify, for each regulation that increases incremental cost, offsetting regulations, and provide the agency's best approximation of the total costs or savings associated with each new regulation or repealed regulation.

Additionally, on February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda”. The Executive Order established a Federal policy to alleviate unnecessary regulatory burdens placed on the American people. Section 3(a) of the Executive Order directs Federal agencies to establish a Regulatory Reform Task Force (Task Force). One of the duties of the Task Force is to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification. The Executive Order further asks that each Task Force attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard of reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

The Office of Management and Budget has directed that agency policies (such as guidance and interpretative documents) and information collections that impose costs on the public may also be identified under the above criteria, in addition to regulations.

Section 3(e) of the Executive Order calls on the Task Force to seek input and other assistance on this task, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and Tribal governments, small businesses, consumers, non-governmental organizations, and trade associations.

CBP is, through this document, seeking input from entities affected by CBP, including state, local, and tribal governments, small businesses, consumers, non-governmental organizations, manufacturers, and their trade associations. These entities are in the best position to help CBP identify rules that are obsolete, unnecessary, unjustified, or simply no longer make sense, or rules that could be better modernized to accomplish their objectives.

Consistent with CBP's commitment to public participation in the rulemaking process, CBP is soliciting views from the public on specific regulations or paperwork requirements that could be altered or eliminated to reduce burdens while still allowing CBP to meet its mission.

While CBP promulgates rules in accordance with the law and to the best of its analytic capability, it is difficult to be certain of the consequences of a rule, including its costs and benefits, until it has been tested. Because knowledge about the full effects of a rule is widely dispersed in society, members of the public are likely to have useful information and perspectives on the benefits and burdens of existing requirements and how regulatory obligations may be updated, streamlined, revised, or repealed to better achieve regulatory objectives, while minimizing regulatory burdens, consistent with applicable law.

Accordingly, CBP is asking you to consider the following questions when providing your input:

(1) Are there CBP rules or reporting requirements that have become outdated and, if so, how can they be modernized to better accomplish their objective?

(2) Are there CBP rules that are still necessary, but have not operated as well as expected such that a modified, or slightly different approach at lower cost is justified?

(3) Are there CBP rules that unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the secure flow of legitimate trade and travel to and from the United States?

(4) Does CBP currently collect information that it does not need or use effectively?

(5) Are there regulations, reporting requirements, or regulatory processes that are unnecessarily complicated or could be streamlined to achieve statutory obligations in more efficient ways?

(6) Are there rules or reporting requirements that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory or reporting requirements?

To allow CBP to more effectively evaluate suggestions, CBP requests that commenters identify with specificity the regulation (in either Title 19 CFR Chapter I, or Title 8 CFR, Chapter I) or reporting requirement at issue, and provide the legal citation where available. Please note that certain regulations which reflect statutory requirements cannot be eliminated until the statute is amended or repealed to eliminate that requirement. CBP also requests that the submitter provide, in as much detail as possible, an explanation why a regulation or reporting requirement should be modified, streamlined, or repealed, as well as specific suggestions of ways CBP can do so while achieving its regulatory objectives. In addition, supporting data or other information, such as cost information, for any suggestions would be useful.

Comments from the public are crucial to understanding regulatory burden and helping CBP find solutions that are cost effective, facilitate legitimate trade and travel, and enhance homeland security. While CBP intends to fully consider all input received in response to this notice, CBP will not respond individually to comments and none of the comments submitted will bind CBP to take any further action.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0668; Product Identifier 2017-NE-17-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM 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 NPRM.

We received a report of an LPT uncontainment on a CF6-80A2. Investigation determined the uncontainment was the result of HCF cracking of the LPT stage 3 nozzles. This condition, if not corrected, could result in failure of the LPT stage 3 nozzle, damage to the engine, and damage to the airplane.

We reviewed GE CF6-80A Service Bulletin (SB) 72-0749, Revision 2, dated August 31, 2016. The SB describes procedures for replacement of the LPT stage 3 nozzles.

We are proposing 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 proposed AD would require replacement of the LPT stage 3 nozzles.

We estimate that this proposed AD affects 7 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

This AD 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.

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

This notice of intent contained in this document is issued pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). The Drug Enforcement Administration (DEA) intends to issue a temporary scheduling order (in the form of a temporary amendment) to add ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl to Schedule I under the Controlled Substances Act.1 The temporary scheduling order will be published in the Federal Register, but will not be issued before October 12, 2017.

Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 CFR part 1308. The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.2 The Administrator transmitted notice of his intent to place ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I on a temporary basis to the Assistant Secretary for Health of HHS by letter. Notice for these actions was transmitted on the following dates: May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl). The Assistant Secretary responded by letter dated June 9, 2017 (ortho-fluorofentanyl) and July 14, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), and advised that based on a review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications or approved new drug applications for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl. The Assistant Secretary also stated that the HHS has no objection to the temporary placement of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I of the CSA. ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl under section 505 of the FDCA, 21 U.S.C. 355.

To find that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

A substance meeting the statutory requirements for temporary scheduling may only be placed in Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).

The recent identification of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in drug evidence and the identification of these substances in association with fatal overdose events indicate that these substances are being abused for their opioid properties. No approved medical use has been identified for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl, nor have they been approved by the FDA for human consumption.

Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, summarized below, indicate that these synthetic opioids have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at www.regulations.gov under Docket Number DEA-473.

The recreational abuse of fentanyl-like substances continues to be a significant concern. These substances are distributed to users, often with unpredictable outcomes. ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have recently been encountered by law enforcement and public health officials. Adverse health effects and outcomes are demonstrated by fatal overdose cases involving these substances. The documented negative effects of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are consistent with those of other opioids.

On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS. Data from STRIDE and STARLiMS were queried on June 19, 2017. STARLiMS registered four reports containing ortho-fluorofentanyl from California and five reports containing tetrahydrofuranyl fentanyl from Florida and Missouri. According to STARLiMS, the first laboratory submissions of ortho-fluorofentanyl and tetrahydrofuranyl fentanyl occurred in April 2016, and March 2017, respectively.

The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state, and local forensic laboratories across the country. Data from NFLIS was queried on June 20, 2017. NFLIS registered three reports containing ortho-fluorofentanyl from state or local forensic laboratories in Virginia.3 According to NFLIS, the first report of ortho-fluorofentanyl was reported in September 2016. NFLIS registered two reports containing tetrahydrofuranyl fentanyl from state or local forensic laboratories in New Jersey and was first reported in January 2017. The identification of methoxyacetyl fentanyl in drug evidence submitted in April 2017 was reported to DEA from a local laboratory in Ohio.4 The DEA is not aware of any laboratory identifications of ortho-fluorofentanyl prior to 2016 or identifications of tetrahydrofuranyl fentanyl or methoxyacetyl fentanyl prior to 2017.

Evidence suggests that the pattern of abuse of fentanyl analogues, including ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been encountered in powder form similar to fentanyl and heroin and have been connected to fatal overdoses.

Reports collected by the DEA demonstrate ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are being abused for their opioid properties. Abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have resulted in mortality (see DEA 3-Factor Analysis for full discussion). The DEA collected post-mortem toxicology and medical examiner reports on 13 confirmed fatalities associated with ortho-fluorofentanyl which occurred in Georgia (1), North Carolina (11), and Texas (1), two confirmed fatalities associated with tetrahydrofuranyl fentanyl which occurred in New Jersey (1) and Wisconsin (1), and 2 confirmed fatalities associated with methoxyacetyl fentanyl which occurred in Pennsylvania. It is likely that the prevalence of these substances in opioid related emergency room admissions and deaths is underreported as standard immunoassays may not differentiate fentanyl analogues from fentanyl.

Ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been identified in drug evidence collected by law enforcement. NFLIS and STARLiMS have a total of seven drug reports in which ortho-fluorofentanyl was identified in drug exhibits submitted to forensic laboratories in 2016 from law enforcement encounters in California and Virginia and seven drug reports in which tetrahydrofuranyl fentanyl was identified in drug exhibits submitted to forensic laboratories in 2017 from law enforcement encounters in Florida, Missouri, and New Jersey. The identification of methoxyacetyl fentanyl in drug evidence submitted in April 2017 was reported to DEA from Ohio.

The population likely to abuse ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl overlaps with the population abusing prescription opioid analgesics, heroin, fentanyl, and other fentanyl-related substances. This is evidenced by the routes of drug administration and drug use history documented in ortho-fluorofentanyl and tetrahydrofuranyl fentanyl fatal overdose cases. Because abusers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are likely to obtain these substances through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (i.e., use a drug for the first time) ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl abuse are likely to be at risk of developing substance use disorder, overdose, and death similar to that of other opioid analgesics (e.g., fentanyl, morphine, etc.).

Ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl exhibit pharmacological profiles similar to that of fentanyl and other µ-opioid receptor agonists. The toxic effects of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in humans are demonstrated by overdose fatalities involving these substances. Abusers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl may not know the origin, identity, or purity of these substances, thus posing significant adverse health risks when compared to abuse of pharmaceutical preparations of opioid analgesics, such as morphine and oxycodone.

Based on information received by the DEA, the misuse and abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl lead to the same qualitative public health risks as heroin, fentanyl and other opioid analgesic substances. As with any non-medically approved opioid, the health and safety risks for users are high. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.

Ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been associated with numerous fatalities. At least 13 confirmed overdose deaths involving ortho-fluorofentanyl abuse have been reported from Georgia (1), North Carolina (11), and Texas (1). At least two confirmed overdose deaths involving tetrahydrofuranyl fentanyl have been repored from New Jersey (1) and Wisconsin (1). At least two confirmed overdose deaths involving methoxyacetyl fentanyl have been reported from Pennsylvania. As the data demonstrates, the potential for fatal and non-fatal overdoses exists for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl and these substances pose an imminent hazard to the public safety.

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl indicate that these substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through letters dated May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), notified the Assistant Secretary of the DEA's intention to temporarily place these substances in Schedule I.

This notice of intent provides the 30-day notice pursuant to section 201(h)(1) of the CSA, 21 U.S.C. 811(h)(1), of DEA's intent to issue a temporary scheduling order. In accordance with the provisions of section 201(h)(3) of the CSA, 21 U.S.C. 811(h)(3), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I of the CSA, and finds that placement of these synthetic opioids into Schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.

The temporary placement of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I of the CSA will take effect pursuant to a temporary scheduling order, which will not be issued before October 12, 2017. Because the Administrator hereby finds that it is necessary to temporarily place ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I to avoid an imminent hazard to the public safety, the temporary order scheduling these substances will be effective on the date that order is published in the Federal Register, and will be in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2). It is the intention of the Administrator to issue a temporary scheduling order as soon as possible after the expiration of 30 days from the date of publication of this document. Upon publication of the temporary order, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl will then be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, research, conduct of instructional activities and chemical analysis, and possession of a Schedule I controlled substance.

The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).

Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary of HHS. 21 U.S.C. 811(h)(1).

Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.

Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator took into consideration comments submitted by the Assistant Secretary in response to notice that DEA transmitted to the Assistant Secretary pursuant to section 811(h)(4).

Further, the DEA believes that this notice of intent is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.

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. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons set out above, the DEA hereby provides notice of its intent to temporarily amend 21 CFR part 1308 as follows:

I. Background A. Public Hearings

MSHA will hold four public hearings on the proposed rule to provide the public with an opportunity to present oral statements, written comments, and other information on this rulemaking. The public hearings will begin at 9 a.m. and end after the last presenter speaks, and in any event not later than 5 p.m., on the following dates at the locations indicated:

The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The hearings will be conducted in an informal manner. Formal rules of evidence or cross examination will not apply.

A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. Copies of the transcript will be available to the public. The transcript may also be viewed on MSHA's Web site at https://arlweb.msha.gov/currentcomments.asp, under Comments on Public Rule Making.

On January 23, 2017, MSHA published a final rule, Examinations of Working Places in Metal and Nonmetal Mines (“2017 rule”) in the Federal Register (FR) amending the Agency's standards for the examination of working places in metal and nonmetal mines. 82 FR 7680. The 2017 rule was scheduled to become effective on May 23, 2017. On March 27, 2017, MSHA published a proposed rule to delay the effective date of the 2017 rule to July 24, 2017. 82 FR 15173. On May 22, 2017, MSHA published a final rule delaying the effective date of the 2017 rule until October 2, 2017. 82 FR 23139. Elsewhere in this issue of the Federal Register, MSHA is publishing a document taking comments on delaying the effective date of the final rule.

Effective working place examinations are a fundamental accident prevention tool used by operators of metal and nonmetal (MNM) mines; they allow operators to find and fix adverse conditions and violations of health and safety standards before they cause injury or death to miners.

After further review of the rulemaking record, MSHA is considering limited changes to the 2017 rule to address: (1) When working place examinations must begin, and (2) the adverse conditions and related corrective actions that must be included in the working place examinations record. Specifically, MSHA is proposing to amend the introductory text of §§ 56.18002(a) and 57.18002(a) in the 2017 rule on when examinations must begin, and the record requirements in paragraphs (b) and (c); MSHA is not proposing to modify paragraphs (a)(1) and (2) regarding miner notification and corrective action requirements. Further, MSHA is not proposing to change the record retention requirements or the record availability requirements included in the 2017 rule.

The Agency believes that the proposed changes would be as protective as the existing rules. Also, the proposal would reduce the regulatory burden on mine operators compared to requirements in the 2017 rule and would be consistent with the Administration's initiatives to reduce and control regulatory costs.

The standards for examinations of working places in MNM mines at 30 CFR 56.18002 and 57.18002 were promulgated in 1979 and are the standards currently in effect. The currently effective standards permit the examination to be made at any time during the shift. Sections 56.18002(a) and 57.18002(a) require a competent person designated by the mine operator to examine each working place at least once each shift for conditions that may adversely affect safety or health. In addition, §§ 56.18002(a) and 57.18002(a) require the operator to promptly initiate appropriate action to correct such conditions.

On January 23, 2017, MSHA published a final rule (82 FR 7680) that amended §§ 56.18002(a) and 57.18002(a) to require that the examination be conducted before miners begin work in that place so that conditions that may adversely affect miners' safety and health are identified before miners are exposed to those conditions and corrective action is promptly initiated.

MSHA is now proposing to modify the introductory text of §§ 56.18002(a) and 57.18002(a) in the 2017 rule to require the competent person to examine each working place at least once each shift before work begins or as miners begin work in that place for conditions that may adversely affect safety or health. This proposed change to §§ 56.18002(a) and 57.18002(a) would allow the competent person to conduct the examination before work begins or as miners begin their work in a place. To provide mine operators flexibility on scheduling working place examinations, MSHA's proposed change would allow miners to enter a working place at the same time that the competent person conducts the examination. As in the 2017 rule, MSHA's proposal would not require a specific time frame for the examination to be conducted. However, MSHA intends that the examination should be conducted in a time frame sufficient to assure any adverse conditions would be identified before miners are exposed. Under the proposal, the competent person would identify adverse conditions that can be corrected promptly, and promptly notify miners of those that cannot be corrected before miners are exposed. In that way, miners could avoid and not be exposed to those adverse conditions. The operator would still be responsible for correcting those conditions that can be corrected promptly. MSHA recognizes that mining is dynamic, conditions are always changing, and adverse conditions need to be identified and addressed throughout the shift, not just at the beginning. If adverse conditions are identified, miners should be notified before being exposed, or as soon as possible after work begins if the condition is discovered while they are working in an area.

MSHA believes this proposed change would be more protective than the standards in effect, which allow the examination to be made at any time during the shift. Also, under this proposal, since MSHA expects adverse conditions would be identified before miners are potentially exposed to them, the proposal is as protective as the 2017 rule.

Furthermore, in the 2017 rule, MSHA acknowledged that for mines with consecutive shifts or those that operate on a 24-hour, 365-day basis, it may be appropriate to conduct the examination for the next shift at the end of the previous shift. 82 FR 7683. The proposed change would continue to permit mine operators to conduct an examination on the previous shift. However, as MSHA stated in the 2017 rule, because conditions at mines can change, operators should examine at a time sufficiently close to the start of the next shift to minimize potential exposure to conditions that may adversely affect miners' safety or health.

The currently effective standards at §§ 56.18002(b) and 57.18002(b) require, in part, that mine operators make a record that the working place examinations were conducted.

Under the 2017 rule, §§ 56.18002(b) and 57.18002(b) require operators to make a record of the working place examination and include, among other information, a description of each condition found that may adversely affect the safety or health of miners. In the preamble to the 2017 rule, MSHA noted that the record must include a description of adverse conditions that are corrected immediately. 82 FR 7686. The preamble explained that recording all adverse conditions, even those that are corrected immediately, would be useful in identifying trends and areas that could benefit from an increased safety emphasis.

However, MSHA recognizes that it is the mine operator who is responsible for design of the mine's safety program and that having a recording exception for conditions that are corrected promptly would provide operators with increased incentives to correct these conditions promptly, which may improve miner safety and health. For this reason, MSHA is considering modifying §§ 56.18002(b) and 57.18002(b) to require that the examination record include only those adverse conditions that are not corrected promptly.

MSHA also is considering a conforming change to modify §§ 56.18002(c) and 57.18002(c) of the 2017 rule, which requires the examination record to include, or be supplemented to include, the date of corrective action when any condition that may adversely affect safety or health is corrected. To be consistent with MSHA's proposed change to §§ 56.18002(b) and 57.18002(b), MSHA would require in §§ 56.18002(c) and 57.18002(c) that the record include, or be supplemented to include, the date of corrective action for an adverse condition that is not promptly corrected.

MSHA's proposal is based on the recognition that, consistent with industry best practices, prudent operators routinely correct many adverse conditions as the competent person is making the examination or as soon as possible after the completion of the examination, and that the corrective action may be taken either by the competent person or someone else. The Agency believes that the primary concern should be with respect to those adverse conditions that are not corrected promptly because they may expose miners to conditions that may potentially cause an accident, injury, or fatality. Consistent with the explanation in the preamble to the 2017 rule, MSHA interprets “promptly” to mean before miners are potentially exposed to adverse conditions.

Also, the proposed change to §§ 56.18002(b) and 57.18002(b) would be consistent with MSHA's miner notification provisions under the 2017 rule at §§ 56.18002(a)(1) and 57.18002(a)(1). Those provisions require mine operators to promptly notify miners in affected areas of any conditions found that may adversely affect their safety or health. In the preamble to the 2017 rule, MSHA reiterated that, if an adverse condition is corrected before miners begin work, notification to miners in affected areas is not required because there are no miners that would be affected by the adverse condition. Similarly, under proposed paragraph (b), adverse conditions that are corrected promptly no longer present a danger to miners and a description of the adverse condition would not be required as part of the examination record under this proposed rule. MSHA believes that this change to §§ 56.18002(b) and 57.18002(b) may improve safety over the existing standards by encouraging mine operators to correct adverse conditions as they are found before they potentially cause an accident, injury, or fatality.

Overall, MSHA believes that the proposed rule would be more protective of miners than the existing standards under §§ 56.18002 and 57.18002. The proposed rule encourages early identification and prompt correction of adverse conditions to protect miners. If corrected promptly, adverse conditions would not be required to be documented in the record. However, adverse conditions that are not corrected promptly would be required to be documented in the record. An examination record with a description of these uncorrected adverse conditions and their dates of correction would permit mine operators to focus on conditions that need the most attention and on best practices to correct these conditions.

MSHA is soliciting comments only on the limited changes being proposed: (1) Working place examinations may begin as miners begin work, and (2) adverse conditions that are not corrected promptly and dates of their corrective action must be included in the working place examinations record. The Agency requests that commenters be as specific as possible and include any alternatives, existing practices and experiences, detailed rationales, supporting documentation, and benefits to miners. Comments will assist the Agency in considering changes to the 2017 rule and whether changes would reduce regulatory burdens on mine operators without reducing the protections afforded miners.

Executive Orders (E.O.) 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 13771 directs agencies to reduce regulation and control regulatory costs by eliminating at least two existing regulations for each new regulation, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. This proposed rule is expected to be an EO 13771 deregulatory action. As discussed in this section, MSHA estimates that this proposed rule would result in annual cost savings of $27.6 million.1

Under E.O. 12866, it must be determined whether a regulatory action is “significant” and subject to review by OMB. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this E.O.

Based on its assessment of the costs and benefits, MSHA has determined that this proposed rule would not have an annual effect of $100 million or more on the economy and, therefore, would not be an economically significant regulatory action pursuant to section 3(f) of E.O. 12866. MSHA requests comments on all cost and benefit estimates presented in this preamble and on the data and assumptions the Agency used to develop estimates. This proposed rule would make changes to provisions that created costs in the 2017 rule, as described in the following sections.

MSHA estimated that the 2017 rule will result in $34.5 million in annual costs for the MNM industry. The Agency estimated that the total undiscounted cost of the final rule over 10 years will be $345.1 million; at a 3 percent discount rate, $294.4 million; and at a 7 percent discount rate, $242.4 million. In the final rule, MSHA estimated costs associated with conducting an examination before work begins, the additional time to make a record, and providing miners' representatives a copy of the record.

In this proposed rule, MSHA estimates the costs of changes to the 2017 rule that include: (1) An examination of a working place as miners begin work in that place, and (2) the time used to make a record only of adverse conditions that are not corrected promptly and the dates of corrective action for these conditions. For purposes of calculating the costs attributable to this proposed rule, MSHA updated the number of mines and used calendar year 2016 wage and employment data. MSHA also applied 2016 wage and employment data to the 2017 rule to establish a baseline to calculate cost savings.

The proposed rule would apply to all MNM mines in the United States. The baseline for costs and net benefits include costs identified in the preamble to the 2017 rule. The changes include updates to the 2016 data on wages, number of mines, and employment. Changes to the baseline that would exist without this proposed rule are not attributable to this proposal. The updates are included for purposes of calculating the cost savings attributable to this proposed rule.

In 2016, there were approximately 11,624 MNM mines employing 140,631 miners, excluding office workers, and 69,004 contractors working at MNM mines. Table 1 presents the number of MNM mines and employment by mine size.

The U.S. Department of the Interior (DOI) estimated the value of the U.S. mining industry's MNM output in 2016 to be $74.6 billion.2 Table 2 presents the hours worked and revenue produced at MNM mines by mine size.

The proposed rule would modify the 2017 rule's requirements in §§ 56.18002(a) and 57.18002(a) that require the examination be conducted before miners begin work in that place. MSHA is proposing to modify these provisions to require the examination be conducted before work begins or as miners begin work in that place. This proposed change would reduce the cost of the 2017 rule. MSHA is also proposing to modify the 2017 rule's requirements in §§ 56.18001(b) and 57.18002(b) that the examination record include each adverse condition found. MSHA is proposing to modify these provisions to require that the examination record include only those adverse conditions that are not corrected promptly.

MSHA believes these changes to the 2017 rule would not reduce the protections afforded miners; therefore, benefits would remain unchanged, which were unquantified in the 2017 rule, since MSHA was unable to separate the benefits of the new requirements under the 2017 rule from those benefits attributable to conducting a workplace examination under the existing standard. Thus, net benefits for this proposed rule would be positive due to the cost savings.

The costs of this proposed rule are associated with conducting examinations of a working place as miners begin work in that place. In the preamble to the 2017 rule, MSHA concluded that MNM mine operators will use a variety of scheduling methods to conduct an examination of a working place before miners begin work (82 FR 7690). For the 2017 rule, MSHA estimated that it will cost approximately $26.9 million for mine operators examine each working place before miners begin work.

For the 2017 rule estimate, MSHA assumed that operators might use overtime, use different people to backfill for the time shifted to the examination, or experience rescheduling costs to comply with the final rule. The examination was already required prior to the 2017 rule and therefore not an additional cost for either the 2017 rule or this proposed rule. Under this proposed rule, mine operators would not be required to make the 2017 rule changes to the examination timing that were estimated to add $26.9 million for overtime, backfill, and rescheduling. The proposed change in the examination timing would allow mine operators to avoid the additional $26.9 million and therefore create a cost savings. MSHA requests comment on this estimate. MSHA updated the cost estimate for the number of mines and labor costs which results in an estimated annual cost savings of $27.6 million.

The 2017 rule also amended the standards currently in effect by specifying the contents of the examination record, which included a requirement that a record include a description of each adverse condition found. Under this proposed rule, MSHA would modify the required contents of the examination record by requiring a description of each adverse condition that is not corrected promptly. MSHA assumes that the cost related to the proposed change to the recordkeeping requirements would be de minimis. MSHA seeks comment on the Agency's assumption and solicits information and data on the number of instances adverse conditions are promptly corrected and on average how much time would be saved by not requiring these corrected conditions to be included in the record.

MSHA updated the number of mines and applied 2016 wage and employment data to the 2017 rule to establish a baseline to calculate cost savings. MSHA estimates that the competent person making the record of the examination of working places would earn $35.28 per hour (including benefits). In addition, the estimated wage rate of a clerical worker who makes a copy of the record is $24.44 per hour (including benefits). The wage rates are from the Bureau of Labor Statistics (BLS), Occupation Employment Statistics (OES) May 2016 survey.3 4 Updating the 2017 rule's costs results in a new examination cost base of $27.6 million annually or approximately a $0.7 million increase. MSHA also restates the 2017 rule estimates that—

• Mines with 1-19 employees operate 1.1 shift per day, 169 days per year;

• Mines with 20-500 employees operate 1.8 shifts per day, 285 days per year; and

• Mines with 500+ employees operate 2.2 shifts per day, 322 days per year.

MSHA notes that the Agency did not include an overhead labor cost in the economic analysis for this proposed rule. It is important to note that there is not one broadly accepted overhead rate and that the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the costs of any specific regulation. There are several approaches to look at the cost elements that fit the definition of overhead and there are a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,5 and the Employee Benefits Security Administration has used 132 percent on average.6 Some overhead costs, such as advertising and marketing, may be more closely correlated with output rather than with labor. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but those costs may change substantially with the addition of 100 employees. If an employer is able to rearrange current employees' duties to implement a rule, then the marginal share of overhead costs such as rent, insurance, and major office equipment (e.g., computers, printers, copiers) would be very difficult to measure with accuracy (e.g., computer use costs associated with 2 hours for rule familiarization by an existing employee). For this proposed rule, comparability is also a problem. The January 2017 rule is not in effect and therefore additional overhead costs have not been incurred and are unlikely to be incurred in the short term. Guidance on implementing Executive Order 13371 7 also provides general guidance that applies in this situation:

If MSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the overhead costs would increase cost savings from $27.6 million to $32.3 million at all discount rates. This increase in savings of $4.7 million is the same 17 percent overhead rate as all rule costs are labor costs and therefore change in direct proportion to the rates selected.

MSHA will continue to study overhead costs to ensure regulatory costs are appropriately attributed without double counting or showing savings for concepts not previously considered as costs.

Discounting is a technique used to apply the economic concept that the preference for the value of money decreases over time. In this analysis, MSHA provides cost totals at zero, 3, and 7 percent discount rates. The zero percent discount rate is referred to as the undiscounted rate. MSHA used the Excel Net Present Value (NPV) function to determine the present value of costs and computed an annualized cost from the present value using the Excel PMT function.8 The negative value of the PMT function provides the annualized cost over 10 years at a 3 and 7 percent discount rate using the function's end of period option.

The following table shows the published 2017 rule costs, changes due to updating the base, and the resulting proposed rule cost savings (cost reductions have a negative sign and are a cost savings).

MSHA estimates that the total undiscounted costs of the proposed rule over a 10-year period would be approximately −$276 million, −$235.4 million at a 3 percent rate, and −$193.8 million at a 7 percent rate. Negative cost values are cost savings that result in a positive net benefit. The same annual cost savings occurs in each of the 10 years so the cost annualized over 10 years would be approximately −$27.60 million for all discount rates.

The proposed rule contains recordkeeping requirements and is not technology-forcing. MSHA concludes that the proposed rule would be technologically feasible.

MSHA established the economic feasibility of the 2017 rule using its traditional revenue screening test—whether the yearly impacts of a regulation are less than one percent of revenues—to establish presumptively that the 2017 rule was economically feasible for the mining community. This proposed rule creates a cost (savings) of −$27.6 million annually compared to the 2017 rule. Although the associated revenues decreased slightly from the 2017 rule estimate of $77.6 billion in 2015 to approximately $74.6 billion for 2016, the costs retained from the 2017 rule of approximately $7.9 million per year remains well less than one percent of revenues and the net decrease in costs is even more supportive of the Agency's conclusion. MSHA concludes that the proposed rule would be economically feasible for the MNM mining industry.

MSHA has reviewed the proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined that the proposed rule would not have a significant economic impact on a substantial number of small entities but requested comments in Section IV. of this preamble.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the proposed rule on small entities. Based on that analysis, MSHA certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The Agency, therefore, is not required to develop an initial regulatory flexibility analysis. MSHA presents the factual basis for this certification below.

Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration's (SBA's) definition for a small entity, or after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. MSHA has not established an alternative definition and, therefore, must use SBA's definition. On February 26, 2016, SBA's revised size standards became effective. SBA updated the small business thresholds for mining by establishing a number of different levels. MSHA used the new SBA standards for the screening analysis of the final rule.

MSHA has also examined the impact of the proposed rule on mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the impact of MSHA's rules and the costs of complying with them will also tend to differ for these small mines. This analysis complies with the requirements of the RFA for an analysis of the impact on “small entities” using both SBA's definition for small entities in the mining industry and MSHA's traditional definition.

MSHA initially evaluates the impacts on small entities by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When this threshold analysis shows estimated compliance costs have been less than one percent of the estimated revenues, the Agency has concluded that it is generally appropriate to conclude that there is no significant adverse economic impact on a substantial number of small entities.

Additionally, there is the possibility that a rule might have a positive economic impact. To properly apply MSHA's traditional criteria and consider the positive impact case, MSHA is adjusting its traditional threshold analysis criteria to consider the absolute value of one percent rather than only the adverse case. This slight change means when the absolute value of the estimated compliance costs exceed one percent of revenues, MSHA investigates whether further analysis is required. For small entities impacted by this proposed rule, MSHA estimates the revenue at $63.2 billion and costs at −$30.3 million. As a percentage, the absolute value of the impact is less than 0.05 percent; therefore, using the threshold analysis, MSHA concludes no further analysis is required and concludes the proposed rule would not have a significant impact on a substantial number of small entities. MSHA requests comments on this conclusion.

The proposed changes due to this rulemaking are unlikely to change the number of collections or respondents in the currently approved collection 1219-0089. The minor recordkeeping change may reduce the burden very slightly but MSHA concludes that any small decrease in the time needed to make the record may not be measurable. MSHA requested comments on this issue in Section IV. of this preamble but is not requesting any change to the approved collection at this time.

MSHA has reviewed the proposed rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this proposed rule does not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million (adjusted for inflation) in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act requires no further Agency action or analysis.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this proposed rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this proposed rule would not impact family well-being.

Section 5 of E.O. 12630 requires Federal agencies to “identify the takings implications of proposed regulatory actions . . . .” MSHA has determined that this proposed rule does not include a regulatory or policy action with takings implications. Accordingly, E.O. 12630 requires no further Agency action or analysis.

Section 3 of E.O. 12988 contains requirements for Federal agencies promulgating new regulations or reviewing existing regulations to minimize litigation by eliminating drafting errors and ambiguity, providing a clear legal standard for affected conduct rather than a general standard, promoting simplification, and reducing burden. MSHA has reviewed this proposed rule and has determined that it would meet the applicable standards provided in E.O. 12988 to minimize litigation and undue burden on the Federal court system.

MSHA has determined that this proposed rule does not have federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, E.O. 13132 requires no further Agency action or analysis.

MSHA has determined that this proposed rule does not have tribal implications because it will not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, E.O. 13175 requires no further Agency action or analysis.

E.O. 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution, or use. In its 2017 rule, MSHA reviewed the rule for its energy effects. The impact on uranium mines is applicable in this case. MSHA data show only two active uranium mines in 2016. Because this proposed rule would have a net cost savings, MSHA has concluded that it would not be a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.

For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is proposing to amend chapter I of title 30 of the Code of Federal Regulations as amended by the final rule published on January 23, 2017 (82 FR 7695), effective May 23, 2017, and delayed on May 22, 2017 (82 FR 23139), until October 2, 2017 (82 FR 23139), as follows:

I. Delay of Effective Date

On January 23, 2017, MSHA published a final rule in the Federal Register (82 FR 7680) amending the Agency's standards for the examination of working places in metal and nonmetal mines. The final rule was scheduled to become effective on May 23, 2017. On May 22, 2017, MSHA published a final rule delaying the effective date to October 2, 2017 (82 FR 23139), to assure that mine operators and miners affected by the final examinations rule have the training and compliance assistance they need prior to the rule's effective date.

At this time, the Agency is proposing to delay the rule's effective date beyond October 2, 2017, to March 2, 2018. As MSHA has reiterated to industry stakeholders, MSHA made a commitment to the industry to hold informational meetings around the country and to develop and distribute compliance assistance material prior to enforcing the rule. MSHA also committed to conducting compliance assistance visits at metal and nonmetal mines throughout the country. Further, extending the effective date would permit more time for MSHA to address issues raised by stakeholders during quarterly training calls and stakeholder meetings and compliance assistance visits. MSHA is considering concerns raised by stakeholders on certain provisions in the rule and how best to address them. MSHA intends to collaborate with and seek input from stakeholders regarding these issues. At the same time, MSHA is seeking comment on a proposed rule that may address some of these issues. The extension also would provide MSHA more time to train its inspectors to help assure consistency in MSHA enforcement. MSHA will make the Agency's inspector training materials available to the mining community to assist miners and mine operators in effectively implementing the rule, thus enhancing the safety of miners.

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board.

On April 17, 2017, the EPA determined that the submittal for PCAPCD Rule 206 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review. On August 2, 2017, the EPA determined that the submittal for VCAPCD Rule 74.34 also met the completeness criteria.

We approved an earlier version of PCAPCD Rule 206 into the SIP on November 15, 1978 (43 FR 53035) for the portions of the district regulating the Mountain Counties Air Basin and Sacramento Valley Air Basin. We approved another earlier version of PCAPCD Rule 206 into the SIP on August 21, 1979 (46 FR 27115) for the portion of the district regulating the Lake Tahoe Air Basin. There are no previous versions of VCAPCD Rule 74.34 in the SIP.

NOX helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NOX emissions. PCAPCD Rule 206 modernizes the requirements and limits for incineration units in Placer County. VCAPCD Rule 74.34 establishes emission limits and operational requirements for sources of NOX that were previously unregulated by a prohibitory rule (including kilns, dryers, and ovens) for Ventura County. The EPA's technical support documents (TSDs) have more information about these rules.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each major source of NOX in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2) and 182(f)). The PCAPCD regulates an ozone nonattainment area classified as “Severe” for the 2008 and 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) and the 1-hour ozone NAAQS. The VCAPCD regulates an ozone nonattainment area classified as “Serious” for the 2008 and 1997 8-hour ozone NAAQS and “Severe” for the 1-hour ozone NAAQS (40 CFR 81.305). Therefore, these rules must implement RACT in their respective counties.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

VCAPCD Rule 74.34 adopts emission limits, monitoring, recordkeeping, and reporting requirements for NOX sources that were previously unregulated by a SIP-approved rule, resulting in an estimated NOX reduction of 40 tons per year. PCAPCD Rule 206 updates control requirements for incinerator units in the county to meet SIP requirements to implement RACT. For these reasons, we conclude that these rules are consistent with CAA requirements and relevant guidance regarding enforceability, RACT, and SIP revisions. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rules because they fulfill all relevant requirements. We will accept comments from the public on this proposal until October 12, 2017. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the PCAPCD and VCAPCD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX 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 proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

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

On May 4, 2015, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SIP that addresses the requirements of RACT under the 2008 8-hour ozone NAAQS.

Ozone is formed in the atmosphere by photochemical reactions between volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the presence of sunlight. In order to reduce these ozone concentrations, the CAA requires control of VOC and NOX emission sources to achieve emission reductions in moderate or more serious nonattainment areas. Among effective control measures, RACT controls significantly reduce VOC and NOX emissions from major stationary sources.

RACT is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.1 Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM) for attainment of the NAAQS, including emissions reductions from existing sources through adoption of RACT. A major source in a nonattainment area is defined as any stationary source that emits or has the potential to emit NOX or VOC emissions above a certain applicability threshold that is based on the ozone nonattainment classification of the area: Marginal, Moderate, Serious, or Severe. See “major stationary source” in CAA sections 182(b), 184(b) and 302. Sections 182(b)(2) and 182(f)(1) of the CAA require states with moderate (or worse) ozone nonattainment areas to implement RACT controls on all stationary sources and source categories covered by a control technique guideline (CTG) document issued by EPA and on all major sources of VOC and NOX emissions located in the area. EPA's CTGs establish presumptive RACT control requirements for various VOC source categories. The CTGs typically identify a particular control level that EPA recommends as being RACT. In some cases, EPA has issued Alternative Control Techniques guidelines (ACTs) primarily for NOX source categories, which in contrast to the CTGs, only present a range for possible control options but do not identify any particular option as the presumptive norm for what is RACT. Section 183(c) of the CAA requires EPA to revise and update CTGs and ACTs as the Administrator determines necessary. EPA issued eleven new CTGs from 2006 through 2008 for a total of 44 CTGs issued since November 1990. States are required to implement RACT for the source categories covered by CTGs through the SIP.

Pursuant to section 184(b) of the CAA, the same requirements for sources of NOX and VOC apply to any areas in an ozone transport region (OTR). A single OTR has been established under section 184(a), comprising all or part of 12 eastern states and the District of Columbia.2 The entire State of Delaware is part of the OTR and, therefore, must comply with the RACT requirements in section 184(b)(1)(B) and (2) of the CAA. Specifically, section 184(b)(1)(B) requires the implementation of RACT in OTR states with respect to all sources of VOC covered by a CTG. Additionally, section 184(b)(2) states that any stationary source with the potential to emit 50 tpy of VOC emission shall be considered a major source and requires the implementation of major stationary source requirements in the OTR states as if the area were a moderate nonattainment area. A major source in a nonattainment area is defined as any stationary source that emits or has the potential to emit NOX or VOC emissions above a certain applicability threshold that is based on the ozone nonattainment classification of the area: Marginal, Moderate, Serious, or Severe. See “major stationary source” in CAA sections 182(b) and 184(b).

Delaware has been subject to the CAA RACT requirements as a result of previous ozone designations. Under the 1-hour ozone NAAQS, Kent and New Castle Counties in Delaware were designated part of the Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD severe ozone nonattainment area, and Sussex County was designated as a marginal ozone nonattainment area.

Since the entire State of Delaware has been part of the OTR, RACT was implemented in Sussex County as a moderate nonattainment area. Therefore, all three counties were subject to RACT requirements under the 1-hour ozone standard. Since the early 1990's, Delaware implemented numerous RACT controls throughout the State to meet the CAA RACT requirements under the 1-hour and the 1997 8-hour ozone standards.

Under the 1997 8-hour ozone NAAQS, the entire State of Delaware (Kent, New Castle and Sussex Counties) was designated as a part of the Philadelphia-Wilmington-Atlantic City moderate nonattainment area, and therefore continued to be subject to the CAA RACT requirements. See 69 FR 23858, 23931 (April 30, 2004). Delaware revised and promulgated its RACT regulations and demonstrated that it complied with the CAA RACT requirements in a SIP revision approved by EPA on July 23, 2008 (73 FR 42681).

Under CAA section 109(d), EPA is required to periodically review and promulgate, as necessary, the ozone NAAQS to continue to protect human health and the environment. On March 27, 2008, EPA revised the 1997 8-hour ozone standard to a new 0.075 ppm level (73 FR 16436). On May 21, 2012, EPA finalized designations for the 2008 8-hour ozone NAAQS (77 FR 30087). Under the 2008 8-hour ozone standard, New Castle County of Delaware was designated as a part of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE marginal nonattainment area, and Sussex County of Delaware was designated as a stand-alone marginal nonattainment area (77 FR 30088). However, due to its location in the OTR, the entire State of Delaware is required to address the CAA RACT requirements for a moderate nonattainment area by submitting to EPA a SIP revision that demonstrates how Delaware meets RACT requirements under the standard. Delaware is required to implement RACT for the 2008 ozone NAAQS on all VOC sources covered by a CTG issued by EPA, as well as all other major stationary sources located within the State boundaries with the potential to emit 50 or 100 tons per year or more of VOC or NOX, respectively. Therefore, the RACT requirements under CAA sections 182 and 184 apply to CTG sources, including eleven new CTG that EPA issued between 2006 and 2008, and any other VOC or NOX sources.

EPA has provided more substantive RACT requirements through final implementation rules for each ozone NAAQS as well as guidance. On March 6, 2015, EPA issued its final rule for implementing the 2008 8-hour ozone NAAQS (the 2008 Ozone Implementation Rule). See 80 FR 12264. This rule addressed, among other things, control and planning obligations as they apply to nonattainment areas under the 2008 8-hour ozone NAAQS, including RACT and RACM. In this rule, EPA specifically required that states meet the RACT requirements either through a certification that previously adopted RACT controls in their SIP revisions approved by EPA under a prior ozone NAAQS continue to represent adequate RACT control levels for attainment of the 2008 8-hour ozone NAAQS, or through the adoption of new or more stringent regulations or controls that represent RACT control levels. A certification must be accompanied by appropriate supporting information such as consideration of information received during the public comment period and consideration of new data. Adoption of new RACT regulations will occur when states have new stationary sources not covered by existing RACT regulations, or when new data or technical information indicates that a previously adopted RACT measure does not represent a newly available RACT control level. Additionally, states are required to submit a negative declaration if there are no CTG major sources of VOC and NOX emissions within the nonattainment area in lieu of, or in addition to, a certification.

On May 4, 2015 Delaware submitted a SIP revision to address all the requirements of RACT set forth by the CAA under the 2008 8-hour ozone NAAQS (the 2015 RACT Submission). Specifically, Delaware's 2015 RACT Submission includes: (1) A certification that for certain categories of sources previously adopted NOX and VOC RACT controls in Delaware's SIP that were approved by EPA under the 1979 1-hour and 1997 8-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and continue to represent RACT for implementation of the 2008 8-hour ozone NAAQS; (2) the adoption of new or more stringent regulations or controls that represent RACT control levels for certain categories of sources; and (3) a negative declaration that certain CTG or non-CTG major sources of VOC and NOX sources do not exist in Delaware.

Delaware Air Pollution Control Regulation No. 1124 (formerly Regulation 24) contains Delaware's VOC RACT controls regulations for all VOC sources greater than 50 tpy that were implemented and approved into the Delaware SIP under the 1-hour and 1997 8-hour ozone NAAQS.3 Delaware is certifying that these regulations, all previously approved by EPA into the SIP, continue to meet the RACT requirements for the 2008 8-hour ozone NAAQS for major stationary sources and CTG covered sources of VOCs. In addition, since EPA's approval of Delaware's 1997 8-hour ozone RACT SIP revision (73 FR 42681, July 23, 2008), the following sections in Regulation 1124 have been updated to meet the requirements of EPA's CTGs: Sections 11, 12, 13, 16, 19, 20, 22, 23, 37 and 45. All these revisions have been previously approved into Delaware's SIP and meet the requirements of EPA's CTGs issued up to and including July 20, 2014. Since EPA's approval of Delaware's 1997 8-hour ozone NAAQS RACT SIP revision, Delaware adopted and EPA approved for the Delaware SIP, three new provisions or regulations to meet RACT requirements. These are (1) Regulation 1124, Section 8, Handling, Storage, and Disposal of VOCs, (2) Regulation 1124, Section 46, Crude Oil Lightering Operations, and (3) Regulation 1141, section 4, Adhesives and Sealants. More detailed information on these provisions as well as a detailed summary of EPA's review can be found in the Technical Support Document (TSD) for this action which is available on line at www.regulations.gov, Docket number EPA-R03-OAR-2015-0656.

Delaware also submitted a negative declaration that the following VOC CTG source categories do not exist in Delaware: Manufacture of pneumatic rubber tires; wood furniture manufacturing operations; shipbuilding and ship repair operations (surface coating); and fiberglass boat manufacturing materials.

Delaware's 2015 RACT Submission also discusses Regulation 1141, Section 1.0, Architectural and Industrial Maintenance Coatings and Regulation 1141, Section 2.0, Consumer Products. These regulations, both previously approved by EPA into the Delaware SIP, establish VOC content limits in various coating materials and consumer products. Although these rules will assist Delaware in its efforts to attain the ozone standard, they are “beyond RACT” levels as they apply to non-major stationary sources.

Delaware's 2015 RACT Submission asserts that Delaware Air Pollution Control Regulation No. 1112 (formerly Regulation 12) contains Delaware's NOX RACT controls that were implemented and approved into the Delaware SIP under the 1-hour and the 1997 8-hour ozone NAAQS. Regulation 1112 has been in effect since 1993 and was approved by EPA as RACT under the 1997 8-hour ozone standard for major stationary sources of NOX. 66 FR 32231 (June 14, 2001). In Regulation 1112, Delaware's NOX RACT controls are specified by source groups such as fuel burning equipment based on heat input capacity, gas turbines and stationary internal combustion engines. In the 2015 RACT Submission, Delaware is certifying that Regulation 1112 continues to represent the lowest emission limits based on currently available and economically feasible control technology for the source categories and, therefore, meets the RACT requirements for the 2008 8-hour ozone NAAQS for major stationary source NOX controls as required by CAA sections 182(b)(2), 182(f), and 184(b)(2). The details of Regulation 1112 are contained in the TSD prepared for this rulemaking.

Delaware's Regulation 1112 provides presumptive NOX limits for major stationary sources of NOX but also provides for a case-by-case RACT determination process. For case-by-case determinations under Regulation 1112, three (3) stationary sources which previously received NOX RACT determinations in Delaware's SIP have been shutdown and Delaware has requested EPA remove these RACT determinations from the SIP. These shutdown sources are (1) General Chemical Corporation facility's sulfuric acid and inter-stage absorption system, (2) General Chemical Corporation facility's metallic nitrite process, and (3) SPI Polyols, Incorporated facility's Polyhydrate Alcohol Catalyst Regenerative process. Delaware requests that these three NOX RACT determinations be removed from Delaware's SIP as the sources of NOX are permanently closed. The remaining case by case RACT determination for CitiSteel USA, Incorporated, Electric Arc Furnace (EAF) rated at 150 tons per charge was approved by EPA as RACT for the 1997 ozone NAAQS (73 FR 42681), and Delaware states that the case-by-case NOX RACT determination continues to represent RACT level control for this source. Pursuant to Delaware's case by case authority in Regulation 1112, Delaware also proposes new limits as RACT for two units at the Delaware City Refinery, including the fluid-coking unit (FCU) and the fluid-catalytic-cracking unit (FCCU).4

In addition, in the 2015 RACT Submission, Delaware states it has implemented specific NOX controls in other regulations to tighten requirements for relevant subgroups contained in Regulation 1112. Delaware asserts Regulations 1142, 1144, 1146, and 1148 contain additional NOX controls that have been implemented and previously approved into the Delaware SIP.5 Delaware states that these regulations in conjunction with the requirements from Regulation 1112 meet the RACT requirements for the 2008 8-hour ozone NAAQS for these source categories. These source categories are industrial boilers, industrial boilers and heat processors at petroleum refineries, stationary generators, electric generating units (EGU), and combustion turbines. Regulations 1112, 1142, 1144, 1146 and 1148 all establish applicability, exemptions, definitions, and emission standards as well as requirements for compliance, monitoring, recordkeeping and reporting for their respective sources. Further details of Delaware's NOX RACT determination in the 2015 RACT Submission for the 2008 8-hour ozone NAAQS can be found in the TSD prepared for this rulemaking. Delaware also submitted a negative declaration for cement kilns as a major source category of NOX emissions that does not exist in Delaware.

EPA has reviewed Delaware's 2015 RACT Submission and finds Delaware's certification of the RACT regulations for major sources of VOC and NOX previously approved by EPA for the 1-hour and 1997 8-hour ozone NAAQS continue to represent RACT control level for the source categories.6 EPA also finds that Delaware's SIP implements RACT with respect to all sources of VOCs covered by a CTG issued prior to July 20, 2014 and all major stationary sources of VOC and NOX covered by Delaware's regulations and case-by-case RACT. EPA accepts Delaware's negative declarations for VOC sources as there are no applicable sources of cement kilns in the State. EPA finds that Delaware's major stationary source VOC and NOX regulations represent the lowest emission limits based on currently available and economically feasible control technology for these source categories. EPA's review of this material indicates that Delaware's 2015 RACT Submission meets the RACT requirements for the 2008 8-hour ozone NAAQS for applicable CTG source categories and major stationary sources of VOC and NOX to address sections 182(b), 182(f) and 184(b)(2) of the CAA.

With respect to the previous case by case RACT determinations submitted by Delaware and approved by EPA for the Delaware SIP, the CAA section 110(l) states “The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any applicable requirement of the CAA.” EPA finds that the removal of the emission limits for (1) the Polyhydrate Alcohol Catalyst Regenerative process SPI Polyols, Incorporated, (2) the sulfuric acid process and inter-stage absorption system at General Chemical Corporation and (3) the metallic nitrite process at General Chemical Corporation from the Delaware SIP will not interfere with attainment of any NAAQS or with RFP or any applicable requirement of the CAA because these sources have permanently shutdown and thus emissions have been completely eliminated. EPA finds the NOX RACT determination for CitiSteel USA, Incorporated, Electric Arc Furnace (EAF) continues to represent the lowest emission limitation that is reasonably available considering technological and economic feasibility for this source. With respect to the FCU and FCCU at the Delaware City Refinery Company, EPA finds that the emission limits, compliance requirements and recordkeeping and reporting requirements established by Delaware represent RACT level of control for these units. Further details of EPA's review and rationale for proposing to approve these SIP revisions can be found in the TSD prepared for this rulemaking.

In the 2015 RACT Submission, Delaware is certifying that Regulation 1124, Control of Volatile Organic Compound Emissions, and Regulation 1142, Control of Nitrogen Oxide Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries, contain RACT levels of control for meeting the 2008 8-hour ozone NAAQS requirements for certain major sources of NOX and VOC. On May 22, 2015, the EPA Administrator signed a final action, EPA's SSM SIP Call (formally, the “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction”). 80 FR 33839. With regard to the Delaware SIP, seven Delaware regulations including Regulation 1124, Control of Volatile Organic Compound Emissions, section 1.4; and Regulation 1142, Control of Nitrogen Oxide Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries, section 2.3.1.6 were cited as giving the State discretion to create exemptions allowing excess emissions during startup and shutdown and were thus inconsistent with EPA policy as expressed in the EPA's SSM SIP Call and the requirements of the CAA. Delaware's 2015 RACT Submission was sent to EPA on May 4, 2015, prior to promulgation of EPA's SSM SIP Call.

In 2016, Delaware revised Regulations 1124 and 1142, with a State effective date of January 11, 2017, to remove the provisions identified by EPA in EPA's SSM SIP Call as being substantially inadequate and inconsistent with the CAA. Subsequently, on November 21, 2016, Delaware submitted a SIP revision to address EPA's SSM SIP Call for six of the seven Delaware regulations mentioned in the SSM SIP Call, including the portions affecting Regulation 1124 (subsection 1.4) and Regulation 1142 (subsection 2.3.1.6). Delaware's November 21, 2016 SSM SIP revision will be dealt with in a separate rulemaking action.

Challenges to EPA's SSM SIP Call are now pending before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), in consolidated Case No. 15-1239 captioned Environmental Committee of the Florida Electric Power Coordinating Group, Inc. v. EPA (consolidated). Within the context of that litigation, the EPA has informed the D.C. Circuit that “EPA intends to closely review the SSM Action, and the prior positions taken by the Agency with respect to the SSM Action may not necessarily reflect its ultimate conclusions after that review is complete.” Case No. 15-1239, Document #1671681 (available in the docket for this rulemaking action). In a July 24, 2017 Status Report, EPA again told the D.C. Circuit that it “is continuing to review the SSM Action to determine whether the Agency will reconsider all or part of the SSM Action, and/or grant the State of Texas' administrative petition for reconsideration in whole or in part.” Because our review of the Delaware 2015 RACT Submission necessarily includes our review of two regulations, Regulation 1124 and 1142, which are directly impacted by the SSM SIP Call, EPA would therefore necessarily have to apply the substance of the SSM SIP Call which (1) is currently the subject of litigation in the D.C. Circuit and (2) is under review by the EPA with the result of that review uncertain either in terms of the substance or the date it will conclude. EPA is still actively reviewing the SSM SIP Call. Therefore, EPA is proposing to approve the 2015 RACT Submission under two alternative bases. EPA plans to take final action on the 2015 RACT Submission adopting the basis that is consistent with the Agency's final position on the SSM SIP Call along with appropriate consideration of public comments received.

One alternative basis for EPA's proposed approval of Delaware's 2015 RACT Submission assumes that EPA will change its position and related SSM Guidance outlined in the SSM SIP Call in such a way that EPA would withdraw the SSM SIP Call as to Delaware Regulations 1124 and 1142.7 Based on this assumed EPA withdrawal of Delaware's portion of the EPA's SSM SIP Call, EPA proposes to find that Delaware's 2015 RACT Submission, including Delaware's Regulations 1124 and 1142 as presently included in the Delaware SIP, is fully consistent with Clean Air Act requirements.

Under the other alternative rationale, EPA assumes that EPA's position (and related guidance) outlined in the SSM SIP Call will not change in such a way that EPA would withdraw the SSM SIP Call as to Delaware Regulations 1124 and 1142. Accordingly, EPA is proposing to approve the 2015 RACT Submission as addressing RACT requirements for the 2008 ozone NAAQS because EPA intends to propose approval and take final rulemaking action approving the revised versions of Regulations 1124 and 1142 as revised in Delaware's response to the SSM SIP Call. This basis for proposed approval of the 2015 RACT Submission is based upon EPA approving Delaware's revisions to Regulations 1124 and 1142 prior to finalizing our action on the 2015 RACT Submission.8 By taking such final rulemaking action approving the versions of Regulations 1124 and 1142 prior to EPA taking final rulemaking action on this 2015 RACT Submission, the regulations Delaware relies upon for NOX and VOC RACT would no longer include any provisions identified in EPA's SSM SIP Call.

EPA is taking public comment on our proposed alternatives discussed herein for approval for Delaware's 2015 RACT Submission for the NOX and VOC RACT for 2008 ozone NAAQS.

EPA is proposing to approve Delaware's 2015 RACT Submission on the basis that Delaware has met the RACT requirements under the 2008 8-hour ozone NAAQS per sections 182(b), 182(f) and 184(b)(2) for the reasons explained in this notice, including our position relating to the SSM SIP Call and the related provisions within Regulations 1124 and 1142 presently in the Delaware SIP. EPA finds that Delaware's 2015 RACT Submission demonstrates that the State has adopted air pollution control strategies that represent RACT for the purposes of compliance with the 2008 8-hour ozone standard for all major stationary sources of VOC and NOX. EPA finds that Delaware's SIP implements RACT with respect to all sources of VOCs covered by a CTG issued prior to July 20, 2014 as well as represents RACT for all CTG VOC and NOX major stationary sources of. EPA is proposing to approve source specific NOX RACT determinations for two (2) units at the Delaware City Refinery Company. EPA is proposing to remove, in accordance with section 110 of the CAA, three (3) source specific NOX RACT determinations for prior ozone NAAQS from Delaware's SIP as the three processes at both facilities have permanently shutdown—one determination for SPI Polyols, Incorporated and two determinations for General Chemical Corporation. Delaware's SIP revision is based on a combination of (1) certification that for certain categories of sources previously adopted RACT controls in Delaware's SIP that were approved by EPA under the 1-hour ozone NAAQS and 1997 8-hour ozone NAAQS are based on currently available technically and economically feasible controls, and that they continue to represent RACT for the 2008 8-hour standard implementation purposes; (2) the adoption of new or more stringent regulations or controls into the Delaware SIP that represent RACT control levels for certain categories of sources; and (3) the negative declaration that certain CTG or other major sources of VOC and NOX emissions do not exist within Delaware. EPA is soliciting public comments on the issues discussed in this document relevant to RACT requirements for Delaware for the 2008 ozone NAAQS. These comments will be considered before taking final action.

In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference source-specific RACT determinations under the 2008 8-hour ozone NAAQS for certain major sources of NOX and VOC emissions. EPA has made, and will continue to make, these materials generally available through http://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 proposed action:

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

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

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

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

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

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

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

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

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

In addition, this proposed rule, Delaware's 2008 8-hour ozone RACT SIP revision 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.

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

On July 18, 1997, the EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, the EPA revised the NAAQS for PM2.5, tightening the 24-hour PM2.5 standard from 65 micrograms per cubic meter (µg/m3) to 35 µg/m3, and retaining the annual PM2.5 NAAQS at 15 µg/m3 (71 FR 61144). Subsequently, on December 14, 2012, the EPA revised the level of the health based (primary) annual PM2.5 NAAQS to 12 µg/m3. See 78 FR 3086 (January 15, 2013).1

The CAA requires that states submit SIPs meeting the requirements of CAA sections 110(a)(1) and (2) within three years after promulgation of a new or revised standard. CAA sections 110(a)(1) and (2) require states to address basic SIP elements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards, the so-called “infrastructure” requirements. To help states, the EPA issued guidance on September 13, 2013, addressing infrastructure SIP elements for certain NAAQS.2 As noted in the guidance, to the extent an existing SIP already meets the CAA section 110(a)(2) requirements, states may certify that fact via a letter to the EPA.

On December 23, 2015, the State of Idaho submitted certifications to the EPA that the Idaho SIP meets the infrastructure requirements for the 2012 PM2.5 NAAQS.

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. CAA section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements, with their corresponding CAA subsection, are listed below:

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

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

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.3

• 110(a)(2)(E): Adequate resources.

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

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.

• 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.

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

• 110(a)(2)(L): Permitting fees.

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

The EPA's guidance clarified that two elements identified in CAA section 110(a)(2) are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to CAA section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR) or CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title I of the CAA are not changed by a new NAAQS.

The EPA is taking action on the December 23, 2015 infrastructure submission from Idaho for purposes of the 2012 PM2.5 NAAQS. We previously approved a similar submission as meeting infrastructure requirements for nitrogen dioxide and sulfur dioxide standards (August 11, 2014, 79 FR 46707). In the preamble of our action, we published a discussion of the EPA's approach to review of these submissions. Please see our April 17, 2014 proposed rule for the detailed discussion (79 FR 21669, at page 21670).

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.

State submittal: The Idaho submittal cites an overview of the Idaho air quality laws and regulations, including portions of the Idaho Environmental Protection and Health Act (EPHA) and the Rules for the Control of Air Pollution located at IDAPA 58.01.01. Relevant laws cited include Idaho Code Section 39-105(3)(d) which provides Idaho DEQ authority to supervise and administer a system to safeguard air quality, Idaho Code Section 39-115 which provides Idaho DEQ with specific authority for the issuance of air quality permits, and Idaho Code Section 39-116 which provides Idaho DEQ authority to establish compliance schedules for air quality regulatory standards. Relevant regulations include IDAPA 58.01.01.107.03 (incorporation by reference of federal regulations), IDAPA 58.01.01.200-228 (permit to construct rules), IDAPA 58.01.01.400-410 (operating permit rules), IDAPA 58.01.01.600-624 (control of open burning), IDAPA 58.01.01.625 (visible emissions requirements and testing), IDAPA 58.01.01.725 (rules for sulfur content of fuels), and IDAPA 58.01.01.460-461 (banking of emissions).

EPA analysis: Idaho's SIP meets the requirements of section 110(a)(2)(A) for the 2012 PM2.5 NAAQS, subject to the following clarifications. First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining this particulate matter NAAQS. The State has one area designated nonattainment for the 2012 PM2.5 NAAQS (West Silver Valley); however, the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D, title I of the CAA to be governed by the submission deadline of section 110(a)(1). Regulations and other control measures for purposes of attainment planning under part D, title I of the CAA are due on a different schedule than infrastructure SIPs.

The Idaho SIP incorporates by reference a number of federal regulations, including the federal NAAQS at 40 CFR part 50, revised as of July 1, 2015. The EPA most recently approved the incorporation by reference of these regulations at IDAPA 58.01.01.107 “Incorporations by Reference” on May 12, 2017 (82 FR 22083). Idaho has incorporated by reference the 2012 PM2.5 NAAQS into Idaho regulations.

Idaho generally regulates emissions of PM2.5 and PM2.5 precursors through its SIP-approved NSR permitting programs, in addition to operating permit regulations, sulfur content of fuels regulations, and rules for the control of open burning, fugitive dust, activities that generate visible emissions, and emissions banking. The EPA most recently approved revisions to Idaho's major and minor NSR permitting programs on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho's NSR rules incorporate by reference the federal nonattainment NSR regulations and federal PSD regulations at IDAPA 58.01.204 and IDAPA 58.01.01.205 respectively. In addition to NSR permitting regulations, Idaho's Tier II operating permit regulations at IDAPA 58.01.01.400-410 require that to obtain an operating permit, the applicant must demonstrate the source will not cause or significantly contribute to a violation of any ambient air quality standard. IDAPA 58.01.01.401.03 provides that Idaho DEQ will require a Tier II source operating permit if Idaho DEQ determines emission rate reductions are necessary to attain or maintain any ambient air quality standard or applicable PSD increment.

In addition to the permitting rules described above, Idaho has adopted rules to limit and control emissions resulting from open burning (IDAPA 58.01.01.600-624) and activities that generate visible emissions (IDAPA 58.01.01.625). Idaho has also promulgated rules addressing the sulfur content of fuels (IDAPA 58.01.01.725) and banking of emissions (IDAPA 58.01.01.460-461). Based on the above analysis, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(A) for the 2012 PM2.5 NAAQS.

In this action, we are not proposing to approve or disapprove any existing Idaho provisions with respect to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. The EPA believes that a number of states may have SSM provisions that are contrary to the CAA and existing EPA guidance and the EPA is addressing such state regulations in a separate action. See “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction: Final Rule.” (June 12, 2015, 80 FR 33840) (SSM SIP Call). The EPA determined that certain SIP provisions in 36 states (applicable in 45 statewide and local jurisdictions) were substantially inadequate to meet CAA requirements, and thus issued a SIP call for each of those 36 states. Idaho's SIP was not named in the SSM SIP call.

In addition, we are not proposing to approve or disapprove any existing Idaho rules with respect to director's discretion or variance provisions. Some states may have such provisions that are contrary to the CAA and existing EPA guidance and the EPA is addressing such regulations in a separate action via the SSM SIP Call (June 12, 2015, 80 FR 33840). We encourage any state having a director's discretion or variance provision that is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.

State submittal: The Idaho submittal references IDAPA 58.01.01.107 and IDAPA 58.01.01.576.05 in response to this requirement. These rules incorporate by reference 40 CFR part 50 National Primary and Secondary Air Quality Standards, 40 CFR part 52 Approval and Promulgation of Implementation Plans, 40 CFR part 53 Ambient Air Monitoring Reference and Equivalent Methods, and 40 CFR part 58 Appendix B Ambient Air Quality Surveillance Quality Assurance Requirements for Prevention of Significant Deterioration. The Idaho submittal certifies that under these rules Idaho meets the infrastructure requirement to implement ambient air monitoring surveillance systems in accordance with the requirements of the CAA.

The Idaho submittal references the 2015 Idaho Annual Ambient Air Monitoring Network Plan, approved by the EPA on October 28, 2015. The Idaho submittal also references the Web site where the Idaho DEQ provides the network plan, air quality monitoring summaries, a map of the monitoring network and real-time air monitoring data.

EPA analysis: A comprehensive air quality monitoring plan, intended to meet the requirements of 40 CFR part 58 was submitted by Idaho on January 15, 1980 (40 CFR 52.670) and approved by the EPA on July 28, 1982. This air quality monitoring plan has been subsequently updated and most recently approved by the EPA on December 13, 2016.4 The plan includes, among other things, the locations for the particulate matter monitoring network. Idaho makes the plan available for public review on the Idaho DEQ Web site at http://www.deq.idaho.gov/air-quality/monitoring/monitoring-network.aspx. The Web site also includes an interactive map of Idaho's air monitoring network. Based on the foregoing, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(C) requires states have a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

State submittal: The Idaho submittal refers to Idaho Code Section 39-108 which provides Idaho DEQ with both administrative and civil enforcement authority with respect to the Idaho EPHA, or any rule, permit or order promulgated pursuant to the EPHA. Criminal enforcement is authorized at Idaho Code Section 39-109. Emergency order authority, similar to that under section 303 of the CAA, is located at Idaho Code Section 39-112. The Idaho submittal also refers to laws and regulations related to air quality permits at IDAPA 58.01.01.200-228 (permit to construct rules).

The Idaho submittal also cites the annual incorporation by reference (IBR) rulemaking which updates Idaho's SIP to include federal changes to the NAAQS and PSD program. Idaho's submittal certifies that the annual IBR updates along with IDAPA sections 200-288 (permitting requirements for new and modified sources) and 575-587 (air quality standards and area classification) meets the CAA infrastructure requirement to implement the PSD program.

EPA analysis: With regard to the requirement to have a program providing for enforcement of all SIP measures, we are proposing to find that the Idaho provisions described above provide Idaho DEQ with authority to enforce the Idaho EPHA, air quality regulations, permits, and orders promulgated pursuant to the EPHA. Idaho DEQ staffs and maintains an administrative enforcement program to ensure compliance with SIP requirements. Idaho DEQ may issue emergency orders to reduce or discontinue emission of air contaminants where air emissions cause or contribute to imminent and substantial endangerment. Enforcement cases may be referred to the State Attorney General's Office for civil or criminal enforcement. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C) related to enforcement for the 2012 PM2.5 NAAQS.

To generally meet the requirements of CAA section 110(a)(2)(C) with regard to the regulation of construction of new or modified stationary sources, a state is required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2012 PM2.5 NAAQS. Idaho has one designated nonattainment area for the 2012 PM2.5 NAAQS (West Silver Valley). However, as noted above, this action does not address CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR).

We most recently approved revisions to Idaho's PSD program on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho's SIP-approved PSD program implements the 2012 PM2.5 NAAQS and incorporates by reference the federal PSD program requirements at 40 CFR 52.21 as of July 1, 2015. As a result, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C) with regard to PSD for the 2012 PM2.5 NAAQS.

We note that on January 4, 2013, the U.S. Court of Appeals in the District of Columbia, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the EPA's rules implementing the 1997 PM2.5 NAAQS, including the “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” (May 16, 2008, 73 FR 28321) (2008 PM2.5 NSR Implementation Rule). The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, title I of the CAA establishes additional provisions for particulate matter nonattainment areas. The 2008 PM2.5 NSR Implementation Rule addressed by the court's decision promulgated NSR requirements for implementation of PM2.5 in both nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 PM2.5 NSR Implementation Rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 PM2.5 NSR Implementation Rule in order to comply with the court's decision.

To address the court's remand, the EPA promulgated a final rule for the “Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements” on August 24, 2016 (81 FR 58011). This rule sets requirements for major stationary sources in PM2.5 nonattainment areas. The EPA interprets the CAA section 110(a)(1) and (2) infrastructure submissions due three years after adoption or revision of a NAAQS to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which are due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as ten years following designations for some elements. Accordingly, our proposed approval of elements 110(a)(2)(C), (D)(i)(II), and (J), with respect to the PSD requirements, does not conflict with the court's opinion.

In addition, on January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued a judgment that, among other things, vacated the provisions adding the PM2.5 Significant Monitoring Concentration (SMC) to the federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), that were promulgated as part of the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC); Final Rule,” (October 10, 2010, 75 FR 64864) (2010 PSD PM2.5 Implementation Rule). In its decision, the court held that the EPA did not have the authority to use SMCs to exempt permit applicants from the statutory requirement in section 165(e)(2) of the CAA that ambient monitoring data for PM2.5 be included in all PSD permit applications. Thus, although the PM2.5 SMC was not a required element of a state's PSD program, were a state PSD program that contains such a provision to use that provision to issue new permits without requiring ambient PM2.5 monitoring data, such application of the vacated SMC would be inconsistent with the court's opinion and the requirements of section 165(e)(2) of the CAA.

This decision also, at the EPA's request, vacated and remanded to the EPA for further consideration the portions of the 2010 PSD PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40 CFR 52.21 related to Significant Impact Levels (SILs) for PM2.5. The EPA requested this vacatur and remand of two of the three provisions in the EPA regulations that contain SILs for PM2.5, because the wording of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 52.21(k)(2)) is inconsistent with the explanation of when and how SILs should be used by permitting authorities that we provided in the preamble to the Federal Register publication when we promulgated these provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not vacated and remains in effect. The court's decision does not affect the PSD increments for PM2.5 promulgated as part of the 2010 PSD PM2.5 Implementation Rule.

The EPA amended its regulations to remove the vacated PM2.5 SILs and SMC provisions from PSD regulations on December 9, 2013 (78 FR 73698). On August 12, 2016, we approved revisions to the Idaho SIP as being consistent with the court decision and revised EPA regulations (81 FR 53290).

The EPA has also promulgated revisions to federal PSD requirements for greenhouse gas (GHG) emissions, in response to a court remand and vacatur. Specifically, on June 23, 2014, the United States Supreme Court, in Utility Air Regulatory Group (UARG) v. EPA, 5 issued a decision that said the EPA may not treat GHGs as air pollutants for purposes of determining whether a source is a major source (or modification thereof) required to obtain a PSD permit. The Court also said the EPA could continue to require that PSD permits otherwise required based on emissions of pollutants other than GHGs contain limits on GHG emissions based on the application of Best Available Control Technology (BACT).

In response to the UARG decision, and the subsequent Amended Judgment issued by the D.C. Circuit (Amended Judgment),6 the EPA revised the federal PSD rules to allow for the rescission of PSD permits that are no longer required under these decisions, (May 7, 2015, 80 FR 26183), and to remove the regulatory provisions that were specifically vacated by the Amended Judgment, (August 19, 2015, 80 FR 50199) (removing 40 CFR 51.166(b)(48)(v), 52.21(b)(49)(v), 52.22, 70.12, and 71.13). In addition, the EPA proposed to revise provisions in the PSD permitting regulations applicable to GHGs to fully conform with UARG and the Amended Judgment, but those revisions have not been finalized (Oct. 3, 2016, 81 FR 68110).

The EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision and the EPA's changes to federal PSD rules in response to the decision. At this juncture, the EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

At present, the EPA has determined the Idaho SIP is sufficient to satisfy CAA section 110(a)(2)(C), (D)(i)(II) and (J) with respect to GHGs because the PSD permitting program previously-approved by the EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Idaho PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy CAA section 110(a)(2)(C), (D)(i)(II) and (J) for purposes of the 2012 PM2.5 NAAQS.

The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that the EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect our proposed approval of the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C), (D)(i)(II) and (J) as those elements relate to a comprehensive PSD program. In this action we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C), (D)(i)(II) and (J) as those elements relate to a comprehensive PSD program.

With regard to the minor NSR requirement of this element, the EPA has determined that Idaho's minor NSR permitting program regulates direct PM2.5 and NOX and SO2 as precursors. On August 12, 2016, we approved revisions to the Idaho SIP as meeting the federal requirements of minor NSR permitting programs at 40 CFR 51.160 through 164 (81 FR 53290).

Based on the foregoing, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(C) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(D)(i) requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state (CAA section 110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality, or from interfering with measures required to protect visibility (i.e. measures to address regional haze) in any state (CAA section 110(a)(2)(D)(i)(II)).

This action also does not address the requirements of CAA section 110(a)(2)(D)(i)(I), which we will address in a future action. In this proposal, we are proposing to act on Idaho's submission relating to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii).

State submittal: For purposes of CAA 110(a)(2)(D)(i)(II), the submittal referenced Idaho's SIP-approved PSD program and Idaho's Regional Haze SIP submitted to the EPA on October 25, 2010. Idaho also cites IDAPA 58.01.01.209 that provides notice and comment procedures for various permit actions with regard to the public and to appropriate federal, state, international, and local agencies. CAA section 110(a)(2)(D)(ii) is discussed below.

EPA analysis: The EPA believes that the CAA section 110(a)(2)(D)(i)(II) PSD sub-element may be met by the State's confirmation in the submittal that new major sources and major modifications in the State are subject to a SIP-approved PSD program. We most recently approved revisions to Idaho's PSD program on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho's SIP-approved PSD program implements the 2012 PM2.5 NAAQS and incorporates the federal PSD program regulations at 40 CFR 52.21 by reference as of July 1, 2015. As discussed above in section 110(a)(2)(C), we believe that our proposed approval of element 110(a)(2)(D)(i)(II) is not affected by recent court vacaturs of EPA PSD implementing regulations. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with regard to PSD for the 2012 PM2.5 NAAQS.

The EPA believes that, with regard to the CAA section 110(a)(2)(D)(i)(II) visibility sub-element, the requirement may be satisfied by an approved SIP addressing regional haze. The EPA's reasoning is that the development of the regional haze SIPs was intended to occur in a collaborative environment among the states, and that through this process states would coordinate on emissions controls to protect visibility on an interstate basis.

The Idaho submittal references the Idaho Regional Haze SIP, submitted to the EPA on October 25, 2010, which addresses visibility impacts across states within the region. On June 9, 2011, we approved a SIP revision which provides Idaho DEQ authority to address regional haze and to implement best available retrofit technology (BART) requirements (76 FR 33651). Subsequently on June 22, 2011, we approved portions of the Idaho Regional Haze SIP, including the requirements for BART (76 FR 36329). Finally, on November 8, 2012, we approved the remainder of the Idaho Regional Haze SIP, including those portions that address CAA provisions that require states to set Reasonable Progress Goals for their Class I areas, and to develop a Long Term Strategy to achieve these goals (77 FR 66929).

The EPA is proposing to find that as a result of the prior approval of the Idaho Regional Haze SIP, the Idaho SIP contains adequate provisions to address 110(a)(2)(D)(i)(II) visibility requirements with respect to the 2012 PM2.5 NAAQS. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2012 PM2.5 NAAQS.

Furthermore, IDAPA 58.01.01.209 provides an opportunity for appropriate federal, state, international, and local agencies to participate and identify any concerns in the permitting process.

Interstate and international transport provisions: CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.

EPA analysis: We most recently approved revisions to Idaho's SIP-approved PSD program on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho's SIP-approved PSD program implements the 2012 PM2.5 NAAQS and incorporates the federal PSD program regulations at 40 CFR 52.21 by reference as of July 1, 2015. As noted above, IDAPA 58.01.01.209 (procedures for issuing permits) includes required procedures for issuing permits for new sources, including procedures for public processes, and notice to appropriate federal, state and local agencies, consistent with the requirements of the federal PSD program. Idaho issues notice of its draft permits and neighboring states consistently receive copies of those drafts. Idaho also has no pending obligations under CAA section 115 or 126(b) of the CAA. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(E) requires states to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof), (ii) requirements that the state comply with the requirements respecting state boards under section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

State submittal: The Idaho submittal refers to Idaho Code Section 39-106, which gives the Idaho DEQ Director authority to hire personnel to carry out duties of the department. In addition, the submittal references Idaho Code 39-107, which establishes the State's Board of Environmental Quality, Idaho Code Title 59 Chapter 7 (Ethics in Government Act), and Executive Order 2013-06 which addresses composition requirements of the Idaho Board of Environmental Quality. Finally, the Idaho submittal references Idaho Code Section 39-129, which authorizes Idaho DEQ to enter into binding agreements with local governments that are enforceable as orders.

EPA analysis: We are proposing to find that the above-referenced provisions provide Idaho DEQ with adequate authority to carry out SIP obligations with respect to the 2012 PM2.5 NAAQS as required by CAA section 110(a)(2)(E)(i). With regard to CAA section 110(a)(2)(E)(ii), we previously approved a revision to the Idaho SIP for purposes of meeting CAA section 128 and CAA section 110(a)(2)(E)(ii) on October 24, 2013 (78 FR 63394). We note that Idaho renewed the Executive Order addressing certain board requirements for an additional four years on December 14, 2016 (Executive Order No. 2016-07).7 Finally, we are proposing to find that Idaho has provided necessary assurances that, where Idaho has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, Idaho has responsibility for ensuring adequate implementation of the SIP with regard to the 2012 PM2.5 NAAQS as required by CAA section 110(a)(2)(E)(iii). Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(E) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.

State submittal: The Idaho submittal states that the statutes and rules governing air quality permits provide DEQ with the ability to monitor stationary source emissions for compliance purposes and make data available to the public. The submittal references the following provisions: IDAPA 58.01.01.157, which includes source testing methods and procedures for source testing and reporting to the Idaho DEQ; IDAPA 58.01.01.121, which outlines Idaho DEQ authority to require monitoring, recordkeeping and periodic reporting related to source compliance; IDAPA 58.01.01.122, which provides Idaho DEQ authority to issue information orders and orders to conduct source emissions monitoring, recordkeeping, reporting and other requirements; IDAPA 58.01.01.211, which contains conditions for permits to construct; IDAPA 58.01.01.209, which contains procedures for issuing permits to construct, including public processes; IDAPA 58.01.01.404, which contains procedures for issuing Tier II operating permits, including public processes; IDAPA 58.01.01.405, which contains conditions for Tier II operating permits, including sampling ports, instrumentation to monitor and record, and performance testing; and Idaho Code 9-342A and IDAPA 58.01.21 which address public records. The Idaho submittal also states that Idaho reports emissions data for the six criteria pollutants to the EPA's National Emissions Inventory, which is updated every three years.

EPA analysis: The provisions cited in the Idaho submittal establishes compliance requirements for sources subject to major and minor source permitting to monitor emissions, keep and report records, and collect ambient air monitoring data. The provisions cited also provide Idaho DEQ authority to issue orders to collect additional information as needed for Idaho DEQ to ascertain compliance. In addition, IDAPA 58.01.01.211 (conditions for permits to construct) and 58.01.01.405 (conditions for Tier II operating permits) provide Idaho DEQ authority to establish permit conditions requiring instrumentation to monitor and record emissions data, and instrumentation for ambient monitoring to determine the effect emissions from the stationary source or facility may have, or are having, on the air quality in any area affected by the stationary source or facility. This information is made available to the public through public processes outlined at IDAPA 58.01.01.209 (procedures for issuing permits) for permits to construct and 58.01.01.404 (procedures for issuing permits) for Tier II operating permits.

Additionally, the State is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.

Idaho's SIP and practices are adequate for the stationary source monitoring systems related to the 2012 PM2.5 NAAQS. The statutes and rules provide Idaho DEQ with the ability to monitor stationary source emissions for compliance purposes and make data publicly available. Based on the analysis above, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including adequate contingency plans to implement the emergency episode provisions in their SIPs.

State submittal: The Idaho submittal cites Idaho Code 39-112 which provides emergency order authority comparable to that in CAA section 303. In addition, the submittal cites the Idaho Air Pollution Emergency Rules (IDAPA 58.01.01.550-562).

EPA analysis: CAA section 303 provides authority to the EPA Administrator to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” We find that Idaho Code Section 112 provides the Idaho DEQ Director with comparable authority.

The Idaho air pollution emergency rules at IDAPA 58.01.01.550-562 were previously approved by the EPA on January 16, 2003 (68 FR 2217). Idaho's air pollution emergency rules include PM2.5, establish stages of episode criteria, provide for public announcement whenever any episode stage has been determined to exist, and specify emission control actions to be taken at each episode stage, consistent with the EPA emergency episode SIP requirements set forth at 40 CFR part 51 subpart H (prevention of air pollution emergency episodes, sections 51.150 through 51.153) for particulate matter. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

State submittal: The Idaho submittal refers to Idaho Code Sections 39-105(2) and (3)(d) which provide Idaho DEQ with broad authority to revise rules, in accordance with Idaho administrative procedures for rulemaking, to meet national ambient air quality standards as incorporated by reference in IDAPA 58.01.01.107. The Idaho submittal also refers to IDAPA 58.01.01.575 through 587 which establish and define acceptable ambient concentrations consistent with established criteria.

EPA analysis: We find that Idaho has adequate authority to regularly update the SIP to take into account revisions of the NAAQS and other related regulatory changes. In practice, Idaho regularly updates the SIP for purposes of NAAQS revisions and other related regulatory changes. We most recently approved revisions to the Idaho SIP on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho has incorporated by reference the 2012 PM2.5 NAAQS into the Idaho SIP. Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(H) for the 2012 PM2.5 NAAQS.

There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but are rather due at the time of the nonattainment area plan requirements pursuant to section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.

State submittal: The Idaho submittal refers to laws and regulations relating to public participation processes for SIP revisions and permitting programs. The submittal refers to IDAPA 58.01.01.209, 364, and 404 which provide for public processes related to new source construction permits and operating permits. The submittal also refers to Idaho Code Section 39-105(3)(c) which promotes outreach with local governments and Idaho Code Section 39-129 which provides authority for Idaho DEQ to enter into agreements with local governments. In addition, the Idaho submittal references the Idaho transportation conformity rules and regional haze rules which provide for consultation processes. With regard to public notification, the Idaho submittal states that Idaho DEQ submits information to EPA's AIRNOW program and provides daily air quality index scores for many locations throughout Idaho. Finally, with regard to PSD, the submittal references the Idaho rules for major source permitting at IDAPA 58.01.01.200 through 223, including PSD requirements for sources in attainment and unclassifiable areas.

EPA analysis: The Idaho SIP includes specific provisions for consulting with local governments and Federal Land Managers as specified in CAA section 121, including the Idaho rules for major source PSD permitting. The EPA most recently approved Idaho permitting rules at IDAPA 58.01.01.209 and 58.01.01.404, which provide opportunity and procedures for public comment and notice to appropriate federal, state and local agencies, on November 26, 2010 (75 FR 47530). We most recently approved Idaho's rules that define transportation conformity consultation on April 12, 2001 (66 FR 18873), and Idaho's regional haze rules on June 9, 2011 (76 FR 33651). In practice, Idaho DEQ routinely coordinates with local governments, states, Federal Land Managers and other stakeholders on air quality issues including permitting action, transportation conformity, and regional haze. Therefore, we are proposing to find that the Idaho SIP meets the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(J) also requires the public be notified if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. The EPA calculates an air quality index for five major air pollutants regulated by the CAA: Ground-level ozone, particulate matter, carbon monoxide, sulfur dioxide, and nitrogen dioxide. The EPA AIRNOW program provides this air quality index daily to the public, including health effects and actions members of the public can take to reduce air pollution. Idaho actively participates and submits information to the AIRNOW program, in addition to the EPA's Enviroflash Air Quality Alert program. Idaho DEQ also provides the daily air quality index to the public on the DEQ Web site at http://www.deq.idaho.gov/air/aqindex.cfm, as well as measures that can be taken to prevent exceedances. Therefore, we are proposing to find that the Idaho SIP meets the requirements of CAA section 110(a)(2)(J) for public notification for the 2012 PM2.5 NAAQS.

Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) with respect to permitting. The EPA most recently approved revisions to Idaho's PSD program on May 12, 2017 (82 FR 22083) and August 12, 2016 (81 FR 53290). Idaho's SIP-approved PSD program implements the 2012 PM2.5 NAAQS and incorporates by reference the federal PSD program regulations at 40 CFR 52.21 as of July 1, 2015. We believe that our proposed approval of element 110(a)(2)(J) is not affected by recent court vacaturs of EPA PSD implementing regulations. Please see our discussion at section 110(a)(2)(C). Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(J) with respect to PSD for the 2012 PM2.5 NAAQS.

With regard to the applicable requirements for visibility protection, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new applicable requirement relating to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. Based on the above analysis, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

State submittal: The Idaho submittal states that air quality modeling is conducted during development of revisions to the SIP, as appropriate for Idaho to demonstrate attainment with required air quality standards. Idaho cites IDAPA 58.01.01.202.02 and IDAPA 58.01.01.402.03 which address permit to construct and Tier II operating permit application procedures and modeling requirements for estimating ambient concentrations, respectively. Modeling is also addressed in Idaho's source permitting process as discussed at section 110(a)(2)(A) above. Estimates of ambient concentrations are based on requirements specified in 40 CFR part 51, Appendix W (Guidelines on Air Quality Models) which is incorporated by reference at IDAPA 58.01.01.107.

EPA analysis: We most recently approved IDAPA 58.01.01.107 (incorporations by reference) on May 12, 2017 (82 FR 22083). This rule incorporates by reference the following EPA regulations: Requirements for Preparation, Adoption, and Submittal of Implementation Plans, 40 CFR part 51; National Primary and Secondary Ambient Air Quality Standards, 40 CFR part 50; Approval and Promulgation of Implementation Plans, 40 CFR part 52; Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR part 53; and Ambient Air Quality Surveillance, 40 CFR part 58 revised as of July 1, 2015. Idaho has incorporated by reference the 2012 PM2.5 NAAQS into Idaho regulations. Idaho models estimates of ambient concentrations based on 40 CFR part 51 Appendix W (Guidelines on Air Quality Models). To cite an example of a SIP supported by substantial modeling, the EPA approved the PM10 Second Ten-Year Maintenance Plan for Northern Ada County/Boise Idaho Area on October 2, 2014 (79 FR 59435). Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit, until such time as the SIP fee requirement is superseded by the EPA's approval of the state's title V operating permit program.

State submittal: The Idaho submittal refers to IDAPA 58.01.01.387-397, which set the requirements for the annual registration of Tier I (title V) sources and the annual assessment and payment of fees to support the Tier I permitting program. The EPA approved Idaho's title V permitting program on October 4, 2001 (66 FR 50574). The submittal also references IDAPA 58.01.01.407-409 which set the requirements for Tier II operating permit processing fees and usage.

EPA analysis: We approved Idaho's title V program on October 4, 2001 (66 FR 50574) with an effective date of November 5, 2001. While Idaho's operating permit program is not formally approved into the State's SIP, it is a legal mechanism the State can use to ensure that Idaho DEQ has sufficient resources to support the air program, consistent with the requirements of the SIP. Before the EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. Idaho's title V program included a demonstration the State will collect a fee from title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). Idaho regulations require permitting fees for major sources subject to new source review, as specified at IDAPA 58.01.01.224-227. Therefore, we are proposing to conclude that Idaho has satisfied the requirements of CAA section 110(a)(2)(L) for the 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

State submittal: The Idaho submittal references IDAPA 58.01.01.209, 364 and 404 which provide for the public processes related to developing and issuing air quality permits. In addition, the submittal references the transportation conformity consultation and public processes at IDAPA 58.01.01.563-574. Finally, the submittal references the consultation and participation process outlined in 40 CFR 51.102, incorporated by reference at IDAPA 58.01.01.107.

EPA analysis: The EPA most recently approved IDAPA 58.01.01.107 (incorporations by reference), which incorporates by reference EPA regulations at 40 CFR part 51—Requirements for Preparation, Adoption, and Submittal of Implementation Plans on May 12, 2017 (82 FR 22083). In addition, we most recently approved Idaho permitting rules at IDAPA 58.01.01.209 and 58.01.01.404, which provide opportunity and procedures for public comment and notice to appropriate federal, state and local agencies, on November 26, 2010 (75 FR 47530). Finally, we approved the State rules that define transportation conformity consultation on April 12, 2001 (66 FR 18873). Therefore, we are proposing to approve the Idaho SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2012 PM2.5 NAAQS.

The EPA is proposing to find that the Idaho SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This action is being taken under section 110 of the CAA.

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 proposed action merely approves the state's law as meeting federal requirements and does not impose additional requirements beyond those imposed by the state's law. For that reason, this proposed 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 the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because the 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, 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 Idaho, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.