Federal Register Vol. 82, No.194,

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

On July 21, 2017, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace at Woodruff County Airport, Augusta, AR (82 FR 33836) FAA-2016-9274. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Woodruff County Airport, Augusta, AR, to accommodate new special instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class D and Class E airspace at Roberts Field, Redmond, OR to accommodate airspace redesign for the safety and management of Instrument Flight Rules (IFR) operations within the National Airspace System.

On June 23, 2017, the FAA published in the Federal Register (82 FR 28603) Docket FAA-2017-0390, a notice of proposed rulemaking (NPRM) that proposed to modify Class E airspace designated as an extension to a Class D or Class E surface area at Roberts Field, Redmond, OR, by removing the Notice to Airmen (NOTAM) part-time status, and proposed to modify Class E airspace extending upward from 700 feet above the surface at the airport. Also, the geographic coordinates for Roberts Field in the associated Class D and E airspace areas would be amended to match the FAA's aeronautical database. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace designated as an extension to a Class D or Class E surface area at Roberts Field, Redmond, OR, by shortening the segment to within 8.5 miles (from 13.5 miles) of the airport. This action also removes the part-time NOTAM language that reads “This Class E airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.”

Additionally, this action modifies Class E airspace extending upward from 700 feet above the surface to reduce the area east (to within 9.6 miles, from 11.5 miles) and southeast (to within 13.1 miles, from 15 miles) of the airport, and expand the area southwest (to within 10.5 miles, from 7.6 miles) of the airport.

Also, this action updates the geographic coordinates for Roberts Field and replaces the outdated term Airport/Facility Directory with the term Chart Supplement in the Class D and Class E airspace legal descriptions. Further, this action makes an editorial edit to the Class D legal description by reinstating the letters “MSL” to signify 5,600 feet mean sea level. This airspace redesign is necessary for the safety and management of IFR operations at the airport.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and Class E airspace to support standard instrument approach procedures for IFR operations at W.K. Kellogg Airport, Battle Creek, MI.

The FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (82 FR 20554, May 3, 2017) Docket No. FAA-2017-0232 to modify Class D airspace, Class E airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface at W.K. Kellogg Airport, Battle Creek, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication, the FAA determined the Class E airspace designated as an extension at W.K. Kellogg Airport is no longer required to contain any instrument procedures. Therefore, this rule removes Class E airspace designated as an extension at W.K. Kellogg Airport. This change has no substantive impact on operators using the airspace.

Class D, Class E extension, and Class E transition area airspace designations are published in paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies the Class D and removes the Class E airspace designated as an extension at W.K. Kellogg Airport (formerly W.K. Kellogg Field), Battle Creek, MI. The airport's geographic coordinates are amended in the associated Class D and Class E airspace listed in this amendment.

Also, the Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of W.K. Kellogg Airport is being amended by removing the southwest segment, and the segment 7 miles northwest and 4.4 miles southeast of the Battle Creek ILS localizer northeast course extending 10.4 miles northeast of the localizer outer marker/non directional radio beacon. The northeast segment will be amended to within 2 miles each side of the 047° bearing (from 4 miles each side of the 049° bearing) from the airport extending from the 7-mile radius of the airport to 10 miles northeast (from 10.9 miles) of the airport, and the southeast segment will be amended to within 2 miles each side of the 126° bearing from the airport extending from the 7-mile radius to 7.4 miles (from 11.1 miles) southeast of the airport. Additionally, this action modifies the Class E airspace by removing reference to the BATOL navigation aid and Battle Creek ILS localizer. This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

Lastly, this action makes minor editorial corrections to the amended Class D and Class E legal descriptions by removing the city listed before the airport name in the second line and replacing the outdated term Airport/Facility Directory with the term Chart Supplement.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

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

The FAA published in the Federal Register (82 FR 15303, March 28, 2017) Docket No. FAA-2016-9540 a notice of proposed rulemaking (NPRM) to modify Class C and Class E airspace extending upward from 700 feet above the surface at Evansville Regional Airport, Evansville, IN. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication, the FAA realized that the proposed amendment to Class C airspace at Evansville Regional Airport was included in this rulemaking in error and is removed.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 7.1-mile radius (increased from a 6.8 mile radius) of Evansville Regional Airport, Evansville, IN. The segment 4.4-miles wide (2.2 miles from each side of the 001° bearing from the airport) extending from the 6.8-mile radius is modified to a 4-mile wide segment extending from the 7.1-mile radius of the airport to 11.6 miles (increased from 11.2 miles) north of the airport.

The 4.4-mile wide segment (2.2 miles from each side of the 181° bearing from the airport) extending from the 6.8-mile radius of the airport to 11.3 miles south of the airport is removed.

The Pocket City VORTAC navigation aid segment is amended to within a 7.1-mile radius (from a 6.8-mile radius) of the airport to the VORTAC. Airspace reconfiguration is necessary due to the decommissioning of the Evansville NDB and cancellation of the NDB approaches, and enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

The amendment of Class C airspace at Evansville Regional Airport, included in this rule in error, is removed and will be addressed in a separate rulemaking.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for this Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes the restricted area airspace at Fort Carson, CO, to accommodate essential Army training requirements and ensure the safety of aircraft otherwise permitted to overfly the location established for Army training.

The FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (81 FR 62847, September 13, 2016), Docket No. FAA-2016-8927, to establish restricted area R-2603 to support hazardous training activities conducted within the Pinon Canyon Maneuver Site (PCMS), a military training site for Fort Carson.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. Two comments were received, one from the Aircraft Owners and Pilots Association (AOPA) and one supporting the establishment of the airspace to support military training.

In their response to the NPRM, AOPA raised several substantive issues. AOPA contended the proposed airspace design would have a negative impact on general aviation aircraft highlighting four main areas of concern: Impacts to Instrument Flight Rules (IFR) aircraft; impacts to Visual Flight Rules (VFR) aircraft; charting the restricted area; and times of use. Having considered the issues provided by AOPA, the FAA offers the following responses.

AOPA is concerned with two airways (V-81 and V-169) being effected by the establishment of R-2603. The two airways are within the restricted area boundary from the surface to 10,000 feet MSL. AOPA stated general aviation aircraft must routinely operate IFR at lower altitudes to stay out of icing and due to performance limitations and requiring an aircraft to fly several thousand more feet than is currently required, staying above R-2603's ceiling, could impact general aviation's ability to transit these airways when the restricted area is active. Additionally, AOPA is concerned with feeder route for the Perry Stokes Airport (TAD) RNAV (GPS) RWY 21 instrument approach.

The FAA recognizes the impact to general aviation aircraft and has modified the proposal to minimize the impact to allow complete access to V-169. Additionally, should aircraft encounter icing conditions that would require them to descend to altitudes encompassed by the proposed restricted area, Denver ARTCC would coordinate with the Using Agency and those altitudes would be released.

The FAA recognizes the RNAV (GPS) RWY 21 instrument approach into TAD airport from BLOOM initial approach fix would be unusable when the restricted area is activated. However, RADIO initial approach fix is unencumbered by the restricted area less than 10 NMs away. An aircraft can initiate the approach from this fix or be vectored to intercept the radial inbound from RADIO with minimal impact to general aviation aircraft.

AOPA stated pilots flying under VFR routinely follow prominent railroads and highways to get to their destination. US Route 350 and a parallel railroad proceed from TAD to La Junta Municipal Airport (LHX). Following this route would keep a pilot clear of the restricted area; however, the western boundary point is uncomfortably close for many pilots to utilize this route without proceeding unnecessarily north of the road and tracks.

The FAA has determined that only the most northwest point of the proposed restricted area is close to US Route 350. The closest point for this momentary instance is .12 NM from US 350 and .20 NM from the railroad tracks. VFR aircraft flying over either of these reference points would be clear of the proposed restricted area's closest point. Beyond this point, the distance from the proposed restricted area increases rapidly in both directions. Aircraft utilizing these ground reference points would have a clear boundary identifying they are clear of the restricted area. As long as the aircraft remain over the highway or train tracks, the restricted airspace will not be violated.

AOPA requested the activation of the new restricted area should occur concurrently or after the charting of the airspace on the Denver and Wichita Sectional Charts. Additionally, the FAA should make the effective date of restricted area airspace coincide with the sectional chart cycle so that pilots have the latest information and a graphical depiction of the change. Lastly, the instrument approach procedures to airports in proximity to R-2603 should be updated to graphically depict the new restricted area to increase situational awareness for instrument pilots. Similar to the Pinon Canyon Military Operations Area (MOA) being charted on the procedures into LHX, the restricted area and MOA should be added to TAD's approach and departure procedures.

The FAA concurs with AOPA and will make the new restricted area effective in accordance with guidance to chart on a 56-day cycle, which is December 7, 2017. However, the FAA has mandated to the proponent that it will not be utilized until the Wichita and Denver VFR sectionals are updated January 4, 2018. Lastly, the FAA will ensure the approach and departure procedures are updated.

AOPA stated, as part of the Colorado Airspace Initiative, the Pinon Canyon MOA (within which R-2306 will be located) had its boundaries modified in December 1999. The airspace circular for the modification (Air Traffic Division Letter to Airmen No. 98-03; Study No. 98-ANM-001-NR) stated the MOA “would not be scheduled for use between 10:00 p.m. and 7:00 a.m. local.” The Final Environmental Impact Statement (FEIS) states Pinon Canyon MOA's utilization is “low” and that in 2012 had only eight days of activation. AOPA is concerned the proponent's intention may be to activate the existing MOA whenever the restricted area is in use. This issue is not addressed in the FEIS or in the NPRM. The NPRM for the restricted area states, “the area would be required to support approximately five training cycles per year with the longest duration of each cycle being approximately four to five weeks,” AOPA believes the previous statements made in the Letter to Airmen to limit utilization of the MOA may not be honored. AOPA commented that the proponent should continue the overnight embargo on the MOA's utilization and should only activate the MOA when it is explicitly needed to support operations. According to the comment, activating the MOA continuously for five weeks would not be responsible management of the airspace and would have a considerable impact on civil aviation in the area.

The FAA has changed the times of use of Pinon Canyon MOA to “Intermittent by NOTAM 0700 to 2200, daily.” This change ensures the December 1999 amendment is followed as stated in the circular. Additionally, the restricted area time of designation has been amended to “By NOTAM 24 Hours in Advance.”

Subsequent to publication of the NPRM, it was requested by the FAA charting team to change the order of the lat./long. coordinates to a clockwise direction vice a counter clockwise direction for ease of charting. Additionally, in response to a comment from AOPA, the FAA identified a geographic lat./long. coordinate which was relocated to ensure ample separation from airway V-169. The following restricted area update is incorporated in this action.

The geographic lat./long. coordinates are reversed for a clockwise listing of lat./long. coordinates. Additionally, the geographic lat./long. coordinate for the point located in the northeast corner of R-2603 has been relocated, so as to not impact use of the airway.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 73 to establish a new restricted area R-2603 at the Pinon Canyon Maneuver Site, near Trinidad, CO. The FAA is also incorporating the restricted area updates noted in the Differences from the NPRM section. The FAA is taking this action to ensure realistic Army training which provides increased ground-to-air, air-to-ground, and air-to-air battle space to increase training capacity and relieve training congestion at Fort Carson. The changes from what was proposed in the NPRM are as follows:

R-2603: The geographic coordinate proposed as “lat. 37°38′33″ N., long. 103°35′11″ W.” in the boundaries description is deleted and replaced by a point identified as “lat. 37°38′28″ N., long. 103°42′40″ W.” The legal description of R-2603 was changed from a counter clockwise direction to a clockwise direction.

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

The FAA has determined that this action of establishing restricted area R-2603 within the existing Fort Carson, CO, Pinon Canyon Maneuver Site (PCMS), near Trinidad, CO, qualifies for FAA adoption in accordance with FAA Order 1050.1F, paragraphs 8-2 and 9-2, Adoption of Other Agencies' National Environmental Policy Act Documents, and Written Re-evaluations, and 7400.2L, paragraph 32-2-3. The purpose of creating and utilizing the Restricted Area (RA) is to allow for increased ground-to-air, air-to-ground, and air-to-air battle space to increase training capacity and relieve training congestion at Fort Carson. The FAA, after conducting an independent review and evaluation of the United States Army's Final Environmental Impact Statement of the Pinon Canyon Maneuver Site Training and Operations (EIS) and Record of Decision (ROD) for Restricted Area R-2603 at Fort Carson, CO, has determined that the Army's EIS and its supporting documentation adequately assesses and discloses the environmental impacts of the Proposed Action including evaluation of the establishment of airspace for restricted airspace area R-2603. In March 2013, the Army Environmental Command and Fort Carson released the EIS regarding the Pinon Canyon Maneuver Site (PCMS) Training and Operations located in Colorado. On May 1, 2015, the Army issued their ROD. The Army prepared its EIS and ROD in compliance with NEPA and Army-specific environmental regulations (32 CFR part 651).

Based on the evaluation for potential environmental impact in the Army's EIS, the FAA, as the Cooperating Agency for the Army's proposed action, concluded that adoption of the Army's EIS evaluating the proposed establishment of R-2603 is authorized in accordance with 40 CFR 1506.3, Adoption. Accordingly, FAA adopts the Army's EIS and takes full responsibility for the scope and content that address the FAA's airspace establishment action.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

In the Federal Register of July 28, 2017 (82 FR 35065), FDA published the final order “Medical Devices; Cardiovascular Devices; Classification of the Adjunctive Cardiovascular Status Indicator.” The final order published with an incorrect statement in the preamble about whether FDA planned to exempt the device from premarket notification requirements under section 510(k) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360(k)).

In the Federal Register of July 28, 2017, in FR Doc. 2017-15901, the following correction is made:

On page 35066, at the bottom of the page below table 1, beginning in the first column, the third paragraph is corrected as follows:

“Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k), if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the adjunctive cardiovascular status indicator they intend to market.”

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code ICW IntraCoastal Waterway II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The Coast Guard was notified of the final dates needed for this rule on August 17, 2017. It is impracticable and contrary to the public interest to delay this action. Waiting for a comment period to run would inhibit the Coast Guards' ability to protect the public and participants from the dangers associated with the military exercises scheduled from October 10 through October 30, 2017.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. Immediate implementation is required to protect the public and participants from the dangers associated with the military training exercises.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP North Carolina has determined that potential hazards associated with the military exercises scheduled from October 10 through October 30, 2017, is a safety concern for mariners and participants. The military training exercises involve building temporary bridges, crossing with amphibious vehicles, and other military operations on the ICW. These military training activities will block the waterway in a manner that restricts all vessel navigation and movement within this segment of the ICW. This rule is necessary to protect persons and vessels from the potential hazards associated with the military training exercises.

The safety zone will be enforced on the following dates and times in October 2017:

The safety zone will include all navigable waters of the ICW from Mile Hammock Bay, approximate position 34°32′46″ N., 77°19′17″ W., to Onslow Beach Swing Bridge approximate position 34°34′25″ N., 77°16′14″ W. (NAD 1983), an approximately four mile portion of the ICW. The duration of this zone is intended to protect mariners from the hazards associated with military training operations. No vessel or person will be permitted to enter the safety zone unless specifically authorized by the Captain of the Port North Carolina or a designated representative. The regulatory text appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will not be allowed to enter or transit a portion of the ICW for up to 10 hours on 12 separate days. The Coast Guard will issue a Local Notice to Mariners and transmit a Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone. This portion of the ICW has been determined to be a low traffic area. Vessels needing to transit the area during these times can safely transit offshore using New River Inlet to the south and Browns Inlet to the north. This rule does not allow vessels to request permission to enter the safety zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While the precise number of small entities impacted is unknown, the ICW has a low number of vessels transiting the area planned for the safety zone during the enforcement period. Although some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting for up to 10 hours on 12 separate days that would prohibit entry into an approximately four mile portion of the ICW for military training exercises. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

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

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

• The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

• The words Arizona and State mean the State of Arizona.

• The word Coronado refers to the Coronado Generating Station.

• The initials BART mean or refer to Best Available Retrofit Technology.

• The initials BOD mean or refer to boiler operating day.

• The term Class I area refers to a mandatory Class I Federal area.1

• The initials CAA mean or refer to the Clean Air Act.

• The words EPA, we, us, or our mean or refer to the United States Environmental Protection Agency.

• The initials FIP mean or refer to federal implementation plan.

• The initials lb/MMBtu mean or refer to pounds per million British thermal units.

• The initials NAAQS mean or refer to National Ambient Air Quality Standards.

• The initials NO X mean or refer to nitrogen oxides.

• The initials PM mean or refer to particulate matter, which is inclusive of PM10 (particulate matter less than or equal to 10 micrometers) and PM2.5 (particulate matter less than or equal to 2.5 micrometers).

• The initials SCR mean or refer to selective catalytic reduction.

• The initials SIP mean or refer to state implementation plan.

• The initials SO 2 mean or refer to sulfur dioxide.

• The initials SRP mean or refer to the Salt River Project Agricultural Improvement and Power District.

• The initials tpy mean or refer to tons per year.

On April 27, 2017, the EPA proposed to approve a revision to the Arizona Regional Haze SIP for Coronado (“Coronado SIP Revision”) 2 that provides an alternative to BART for Coronado (“Coronado BART Alternative”).3 The Coronado SIP Revision and BART Alternative consist of an interim operating strategy (“Interim Strategy”) that will take effect on December 5, 2017, and a final operating strategy (“Final Strategy”) that will take effect no later than December 31, 2025. The Coronado BART Alternative was submitted pursuant to provisions of the Regional Haze Rule that allows states to adopt alternative measures in lieu of source-specific BART controls if they can demonstrate that the alternative measures provide greater reasonable progress towards natural visibility conditions than BART.4

The Interim Strategy includes three different operating options, each of which requires a period of seasonal curtailment (i.e., temporary closure) for Unit 1. Each year, SRP must select and implement one of the three options based on the nitrogen oxides (NOX) emissions performance of Unit 1 and the sulfur dioxide (SO2) emissions performance of Units 1 and 2 in that year. In addition, under each option, the facility must comply with an annual SO2 emissions cap of 1,970 tons per year (tpy) from Unit 1 and Unit 2 effective beginning in 2018. The Final Strategy in the Coronado SIP Revision requires the installation of selective catalytic reduction (SCR) on Unit 1 (“SCR Option”) or the permanent cessation of operation of Unit 1 (“Shutdown Option”) no later than December 31, 2025. SRP is required to notify ADEQ and the EPA of its selection of either the SCR Option or the Shutdown Option by December 31, 2022. The Final Strategy includes two additional features: An SO2 emission limit of 0.060 lb/MMBtu, calculated on a 30-boiler operating day (BOD) rolling average, which applies to Unit 2 (as well as Unit 1 if it continues operating), and an annual SO2 emissions cap of either 1,970 tpy from Unit 1 and Unit 2, if both units continue operating, or 1,080 tpy if Unit 1 shuts down. ADEQ incorporated the revised emission limits, as well as associated compliance deadlines and monitoring, recordkeeping, and reporting requirements, as a permit revision to Coronado's existing Operating Permit, which was submitted as part of the Coronado SIP Revision (“Coronado Permit Revision”).5

We proposed to approve the Coronado SIP Revision because in our assessment it complied with the relevant requirements of the CAA and the Regional Haze Rule. In particular, we proposed to find that the Coronado BART Alternative would achieve greater reasonable progress towards natural visibility conditions than would be achieved through the installation and operation of BART at Coronado.6 Because this approval would fill the gap in the Arizona Regional Haze SIP left by the EPA's prior partial disapproval with respect to Coronado, we also proposed to withdraw the provisions of the Arizona Regional Haze FIP that apply to Coronado. Finally, we proposed revisions to 40 CFR part 52 to codify the removal of those portions of the Arizona Regional Haze SIP that have either been superseded by previously-approved revisions to the Arizona SIP or would be superseded by final approval of the Coronado SIP Revision.

The EPA's proposed action provided a 45-day public comment period. During this period, we received comment letters from Earthjustice (on behalf of the Sierra Club and the National Parks Conservation Association),7 Environmental Defense Fund (EDF),8 SRP,9 and two anonymous commenters. Summaries of significant comments and our responses are provided below.

Comment: Earthjustice argued that the EPA should not approve the Coronado BART Alternative because ADEQ and SRP's rationale for replacing the original BART determination with the BART Alternative is now invalid. Citing several administrative law cases, the commenter stated that the EPA must provide a valid rationale for issuing any regulation, including an approval or disapproval of a SIP, given that standard Administrative Procedure Act (APA) requirements apply to such actions. The commenter noted that both ADEQ and SRP had indicated that the purpose of the Coronado BART Alternative was to delay Unit 1's BART obligations until SRP knew whether it would choose to retire Coronado to comply with the Clean Power Plan (CPP). In particular, the commenter cited statements in the Coronado SIP Revision that referred to regulatory uncertainty related to the CPP. The commenter noted that the “EPA and the new administration have taken multiple actions to indefinitely suspend and review the [CPP]” and asserted that these actions undercut ADEQ's rationale for replacing the original BART determination with the Coronado BART Alternative.

Earthjustice acknowledged that the EPA did not discuss the CPP in our proposal. However, citing Arizona v. EPA, 815 F.3d 519, 531 (9th Cir. 2016), in which the Ninth Circuit upheld the EPA's disapproval of ADEQ's original NOX BART determination for Coronado, the commenter asserted that, “if ADEQ's plan is based on an invalid rationale it is unreasonable, and EPA's approval of the plan would also necessarily be unreasonable and arbitrary.” The commenter argued that the “EPA cannot cure this fatal flaw with the BART alternative by attempting to come up with other rationales for the alternative in response to these comments.”

Earthjustice further asserted that ADEQ should “propose a new BART revision that is based on a valid rationale.” The commenter also noted that SRP could comply with the existing BART determination by shutting down Unit 1 and asserted that “this result would be consistent with other recent decisions across Arizona to shut down coal plants or switch them to gas.”

Response: We agree with the commenter that APA requirements generally apply to the EPA's approval or disapproval of a SIP revision and that we must provide a reasoned justification for such actions.10 We also agree with the commenter that both ADEQ and SRP previously indicated that the Coronado BART Alternative was developed to align SRP's compliance obligations under the CPP and the Regional Haze Rule.

In reviewing a SIP submittal, however, the EPA's role is to evaluate whether the submittal meets the applicable requirements of the CAA and the EPA's regulations. If these requirements are met, the EPA must approve the submittal.11 As noted by the commenter, “the EPA does not usurp a state's authority but ensures that such authority is reasonably exercised.” 12 However, the state's underlying motivation in submitting the SIP revision, which the commenter refers to as the state's “rationale” is not one of the elements that the EPA is required to evaluate under the CAA. Therefore, in acting on the Coronado SIP Revision, we have not considered the state's motivation in developing the SIP revision. Rather, as described in our proposal and elsewhere in this document, we have evaluated the Coronado SIP Revision in relation to the relevant requirements of the CAA and the EPA's regulations, and we have determined that it meets all of these requirements. In particular, the Coronado SIP Revision includes detailed and technically sound analyses supporting the State's determination that the Coronado BART Alternative would provide greater reasonable progress toward natural visibility conditions than BART. In contrast to the flawed analyses underlying ADEQ's original NOX BART determination for Coronado, which we disapproved, the analyses supporting the Coronado BART Alternative were both “reasoned [and] moored to the [Act]'s provisions,” 13 for the reasons explained in our proposal and elsewhere in this document. Therefore, the commenter's reliance on the decision of the Ninth Circuit in Arizona v. EPA, which upheld that prior disapproval, is misplaced.

Furthermore, the State's analyses supporting its determination of greater reasonable progress do not rely on the requirements of the CPP or any uncertainty related to those requirements. While the State included a discussion of the CPP in its proposed SIP revision to explain the proposed compliance schedule for the Coronado BART Alternative,14 the Addendum, which reflects the final requirements of the Coronado SIP Revision, includes a different compliance schedule and no mention of the CPP.

Finally, while the commenter is correct that SRP could choose to comply with the existing BART determination for Coronado Unit 1 by simply shutting down that unit, this fact has no bearing on the approvability of the Coronado SIP Revision. Likewise, the fact that the owners of units of other coal plants in Arizona have chosen to shut down units or switch them to natural gas is not pertinent to the current action.15

Comment: EDF and Earthjustice both objected to the EPA's and ADEQ's reliance on the two-prong modeling test under 40 CFR 51.308(e)(3) to demonstrate that the Interim Strategy would achieve greater reasonable progress than the Coronado BART Alternative. The commenters noted that 40 CFR 51.308(e)(3) outlines two different tests for evaluating whether a BART alternative achieves greater reasonable progress than BART. In particular, 40 CFR 51.308(e)(3) provides that:

The commenters noted that the EPA has consistently interpreted the term “distribution” under the first test in 40 CFR 51.308(e)(3) (the “emissions-reduction test”) to refer to geographic distribution. Citing to prior EPA rulemaking actions, EDF stated that the “EPA has traditionally applied the modeling test only in cases where `the distribution of emissions is significantly different' between BART and the BART alternative.” Earthjustice further asserted that, “[w]hen deciding which `Better than BART' test applies, the determinative factor is whether the distribution of emissions between the alternative and BART is substantially different.” The commenters also noted that, in our proposal to approve the Coronado BART Alternative, we again interpreted “distribution” to refer to geographic distribution when we proposed to determine that the Final Strategy would not result in a substantially different distribution of emissions from BART. However, the commenters suggested that, by proposing to approve ADEQ's use of the two-prong modeling test, rather than the emissions-reduction test, to evaluate the Interim Strategy, the EPA was improperly applying a different interpretation of “distribution” to the Interim Strategy.

Earthjustice further asserted that the Coronado BART Alternative “fails” the emissions-reduction test, which it characterized as the “correct” test to apply in this instance. Citing the difference in total NOX, SO2, and PM10 emissions for each of the Interim Strategy scenarios compared with BART, Earthjustice stated that each of the Interim Strategy options “will result in greater overall air pollution than BART for eight years after the December 2017 BART compliance deadline.” For this reason, the commenter concluded that the Coronado BART Alternative is not “Better than BART” and that the EPA should disapprove it.

Response: We agree with the commenters that the EPA's long-standing interpretation of 40 CFR 51.308(e)(3) is that, if the geographic distribution of emissions is the same under the BART alternative and BART, then the emissions distribution is not substantially different.17 However, as explained further below, we do not agree with the commenters that the distribution of emissions is a determinative factor, such that if the distribution of emissions under the BART alternative is not substantially different than under BART, then the alternative must be evaluated using the emissions-reduction test. We also do not agree that the EPA has previously interpreted 40 CFR 51.308(e)(3) to include such a requirement. Accordingly, contrary to the commenters' assertions, we have not departed from our long-standing interpretation in evaluating the Coronado SIP Revision.

As an initial matter, we note that under 40 CFR 51.308(e)(2)(i)(E), a SIP revision establishing a BART alternative must include a determination under 40 CFR 51.308(e)(3) or otherwise based on the clear weight of evidence that the alternative achieves greater reasonable progress than BART. Thus, a state (or the EPA in promulgating a FIP) always has the option to make a “clear weight of evidence” demonstration rather than choosing either of the two options under 40 CFR 51.308(e)(3).18

If a state does elect to make a demonstration under 40 CFR 51.308(e)(3), the first test (the emissions-reductions test) provides the option to make a demonstration without the need for dispersion modeling when two conditions are satisfied: (1) “the distribution of emissions is not substantially different than under BART” and (2) “the alternative measure results in greater emission reductions.” 19 If the first condition is not satisfied (and the state has opted to make a demonstration under 40 CFR 51.308(e)(3) rather than a weight-of-evidence demonstration), then 40 CFR 51.308(e)(3) provides that the state must make a demonstration under the two-prong modeling test.20 By contrast, 40 CFR 51.308(e)(3) does not indicate that a state must apply the emissions-reduction test whenever the first condition of the emissions-reduction test is satisfied. Thus, a state may choose to apply the two-prong modeling test even if it determines that the first condition of the emissions-reductions test is satisfied.

None of the examples of prior EPA actions cited by the commenters indicate that the EPA has previously interpreted 40 CFR 51.308(e)(3) to require use of the emissions-reduction test whenever the first condition of that test is satisfied. Rather, the examples demonstrate that states and the EPA have generally applied the emissions-reduction test where both conditions of that test were clearly satisfied.21 However, in other instances, states and the EPA have made a weight-of-evidence demonstration when the first condition of the emissions-reduction test was satisfied, but it was not clear whether the second condition was satisfied. For example, in 2015 we approved a weight-of-evidence demonstration submitted by ADEQ for a BART alternative at the Apache Generating Station (“Apache BART Alternative”).22 In that case, all of the emissions were from a single facility, so the first condition of the emissions-reduction test was satisfied. However, as with the Coronado BART Alternative, the Apache BART Alternative was expected to result in greater NOX emissions but lower emissions of SO2 and PM10 compared with BART.23 We found that, “[i]n this situation, where BART and the BART Alternative result in reduced emissions of one pollutant but increased emissions of another, it is not appropriate to use the `greater emissions reductions' test under 40 CFR 51.308(e)(3).” 24 Similarly, when evaluating a BART alternative for the Tesoro Refinery in Anacortes, Washington, we determined that, even though all of the emissions were from a single facility, modeling was needed “to assess whether the visibility improvement from the BART Alternative's SO2 emission reductions would be greater than the visibility improvement from the BART NOX reductions.” 25 Likewise, when evaluating a proposed BART alternative for the Four Corners Power Plant, the EPA considered the weight of evidence, including visibility modeling, even though all emissions were from a single facility.26

In evaluating the Coronado BART Alternative, we have followed our long-standing interpretation of 40 CFR 51.308(e)(3) that, if the geographic distribution of emissions is the same under the BART alternative and BART, then the emissions distribution is not substantially different. With regard to the Final Strategy, we found that the distribution of emissions would not be substantially different than under BART because all emissions under both scenarios were from Coronado. Furthermore, under the Final Strategy, emissions of each pollutant would be lower than or equal to BART, and the collective emissions from the facility would be lower than BART.27 This allowed us to use the emissions-reduction test to confirm that the Final Strategy would ensure greater reasonable progress than BART.

In our proposal, we did not evaluate the Interim Strategy under the emissions-reduction test because ADEQ did not make a demonstration under this test. Therefore, we had no cause to consider whether the two conditions of that test were satisfied. Nonetheless, in response to the commenters' concerns, we wish to clarify that the same interpretation of “distribution of emissions” would apply to the Interim Strategy. Because all of the emissions under the Interim Strategy and BART are from Coronado, the distribution of emissions would not be substantially different under the two scenarios, so the first condition of the test is satisfied. Regarding the second condition of the emissions-reduction test, ADEQ found that the Interim Strategy would result in greater NOX emissions, but lower emissions of SO2 and PM10 compared with BART.28 Contrary to Earthjustice's suggestion, ADEQ did not determine that the Interim Strategy “fails” the emissions-reduction test. Rather, ADEQ found that the Interim Strategy would not necessarily achieve greater emissions reductions than BART.29 Furthermore, while the commenters point to the difference in total NOX, SO2, and PM10 emissions for each of the Interim Strategy scenarios compared with BART, we do not consider this comparison to be useful. As we explained in evaluating a proposed BART alternative submitted by Utah:

Accordingly, we do not agree with the commenters that the Coronado BART Alternative “fails” the emissions-reduction test. Rather, we find that the emissions-reduction test is not the appropriate test to evaluate the Interim Strategy of the Coronado BART Alternative, and it was appropriate and reasonable for the State to apply the two-prong modeling test to evaluate the Interim Strategy.

Comment: Earthjustice argued that the Coronado BART Alternative violates CAA section 110(l)'s anti-backsliding requirement because it weakens the existing BART determination for Coronado. Quoting CAA section 110(l) and citing several court cases interpreting that provision, the commenter stated that section 110(l) “prohibits plan revisions that would interfere with an existing BART determination” and that the “EPA's common sense interpretation of section 110(l) is that it prevents plan revisions that backslide or weaken an existing Clean Air Act requirement by increasing overall air pollution or causing worse air quality.” The commenter asserted that the Coronado BART Alternative weakens the existing BART determination for Coronado because it would result in increased air pollution and cause worse visibility impairment at multiple Class I areas in the years 2018 through 2025 and therefore violates section 110(l).

The commenter further argued that the EPA improperly based our 110(l) analysis on our determination that the Coronado BART Alternative would result in greater reasonable progress than BART. The commenter re-asserted its claim that the Coronado BART Alternative is not “Better than BART” because it “fails” the emissions-reduction test. Earthjustice also argued that, “[b]ecause the purposes of a BART alternative and section 110(l) are distinct and a BART alternative may perform worse than BART in some respects, it is unreasonable to use the `Better than BART' test as the sole criterion for whether an alternative complies with section 110(l).”

Earthjustice further noted that ADEQ was not choosing between BART and a BART alternative for Coronado in the first instance, but was instead replacing an existing BART determination that had been fully litigated and in place for four and a half years. They argued that, under these circumstances, section 110(l) requires the EPA to independently determine whether the alternative weakens the existing BART determination, and the EPA cannot rely on the “Better than BART” test as the sole criterion for whether an alternative complies with section 110(l).

Finally, the commenter made several points related to the EPA's approval of a SIP revision that established a new BART determination for Cholla Generating Station (“Cholla BART Reassessment”). Noting certain similarities between the Coronado BART Alternative and the Cholla BART Reassessment, the commenter argued that the EPA had improperly “applied a completely different rationale and analysis when determining whether the two BART revisions complied with section 110(l) for regional haze purposes.” The commenter also criticized the EPA's responses to comments on section 110(l) issues related to the Cholla BART Reassessment and asserted that the EPA “should not attempt to justify the Coronado BART alternative on similar grounds.” In particular, the commenter asserted that the EPA had (1) conflated its section 110(l) analysis regarding NAAQS attainment with its section 110(l) analysis regarding Cholla's existing regional haze requirements, (2) unreasonably dismissed the relevant section 110(l) case law, and (3) incorrectly relied, in part, on post-2025 emissions reductions from Cholla to justify why the plan complied with section 110(l).

Response: We do not agree that the Coronado SIP Revision violates CAA section 110(l). As explained further below, the commenter has mischaracterized the requirements of section 110(l) and the EPA's interpretation of those requirements. Neither the statutory language nor the case law cited by the commenter support the commenter's interpretation that a SIP revision that allows for additional air emissions or less stringent requirements than the existing plan per se constitutes a violation of CAA section 110(l).

Section 110(l) prohibits the EPA from approving a SIP revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [CAA section 171]), or any other applicable requirement of [the CAA].” 31 This language does not prohibit the EPA from approving any SIP revision that weakens the existing plan's requirements or allows for an increase in emissions of a particular pollutant, nor has the EPA interpreted section 110(l) in this manner. The EPA's evaluation of whether a noninterference determination can be made under section 110(l) is a case-by-case assessment based on the specific facts and circumstances at issue. The commenter has selectively quoted from the EPA's prior actions and court cases concerning those actions in order to support their position. In particular, the commenter asserts that, “in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), EPA interpreted section 110(l) as allowing the agency to approve a plan revision that weakened some existing control measures while strengthening others, but only `[a]s long as actual emissions in the air are not increased.' ” However, the context for the quote makes clear that the EPA was not referring to a blanket prohibition on increases in emissions. Rather, we were describing our interpretation of section 110(l) as applied to a SIP revision that substituted emissions reductions to make up for increased emissions resulting from moving an existing control measure to a contingency measure. We determined that we could approve this change without requiring an attainment demonstration, explaining that:

Thus, in the circumstances presented in that case, we found that, rather than submit a new attainment demonstration, the state could instead substitute one measure for another with equivalent or greater emissions reductions/air quality benefit in order to demonstrate noninterference with attainment, maintenance, and reasonable further progress (RFP) requirements. However, the EPA has never indicated that such a substitution approach is required in all cases. In some cases, states can provide an air quality analysis, typically based on modeling, showing that removing a particular control measure will not interfere with attainment, maintenance, or RFP requirements.33 Additionally, a modeling-based demonstration of non-interference with these requirements may be possible where increases in one pollutant are offset by decreases in another pollutant and the modeling analysis shows that the decreases will provide at least equivalent air quality benefits for each affected NAAQS.34

The cases cited by the commenter also fail to support the commenter's interpretation. In Kentucky Resources Council, the court upheld the EPA's decision that a new attainment demonstration was not required in order to show that the SIP revision would not interfere pursuant to section 110(l).35 Thus, the examination of whether the SIP revision would “worsen air quality” was based on whether the area, which was designated as a nonattainment area for the relevant NAAQS, would have more difficulty in attaining and maintaining the NAAQS with the SIP revision—not, as the commenter argues here, whether the SIP revision would simply result in increased emissions. Similarly, the Ala. Envtl. Council v. EPA 36 and Indiana v. EPA 37 courts upheld the EPA's interpretation that section 110(l) allows for a substitution approach to demonstrate non-interference with the Act's requirements, but did not hold that an increase in emissions per se constituted a violation of section 110(l).

A fourth case cited by the commenter, Hall v. EPA, 38 concerned the EPA's analysis of non-interference with attainment requirements in a nonattainment area and did not address the Act's other requirements (including visibility protection requirements) or how those requirements apply in attainment areas.39 Thus, the case is not relevant to the commenters' objections, which specifically concern visibility protection requirements.40

Two additional cases cited by the commenter concerned regional haze SIP actions, but do not support the commenter's contention that “after EPA approves a BART determination (or other regional haze requirement), the agency cannot later modify the BART determination in a manner that weakens it.” 41 WildEarth Guardians v. EPA 42 involved a challenge to a regional haze plan under section 110(l)'s requirements concerning noninterference with attainment and maintenance, which the commenter acknowledges are not of concern in relation to the Coronado SIP Revision.43 In that case, the court found that the petitioner had identified nothing in the SIP revision at issue “that weakens or removes any pollution controls.” 44 Contrary to the commenter's assertion, the court did not suggest that, if the petitioner had identified such a provision, it would necessarily have constituted a violation of section 110(l). In fact, the court declined to decide if section 110(l) even applied to the plan in question, stating only in dicta that, “even if the SIP merely maintained the status quo, that would not interfere with the attainment or maintenance of the NAAQS.” 45

Oklahoma v. EPA 46 affirmed the EPA's authority to review state BART determinations, based on, among other things, section 110(l). However, contrary to the commenter's suggestion, the Oklahoma court did not indicate that individual BART determinations themselves are “applicable requirements” for purposes of section 110(l). Rather, the court found that the underlying statutory requirements concerning visibility protection constitute “applicable requirements.” 47 Accordingly, it is these generally applicable statutory requirements for which a demonstration of non-interference is required.

In this instance, the critical statutory requirement is that the applicable implementation plan “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal” of preventing any future and remedying any existing visibility impairment in Class I areas due to manmade air pollution.48 While measures for achieving “reasonable progress” generally include requirements for source-specific BART determinations,49 the EPA has long interpreted CAA section 169A(b)(2) to allow for the adoption of “implementation plan provisions other than those provided by BART analyses in situations where the agency reasonably concludes that more `reasonable progress' will thereby be attained” because “ `reasonable progress' is the overarching requirement that implementation plan revisions under 42 U.S.C. 7491(b)(2) must address.” 50 This interpretation has been upheld by both the Ninth Circuit 51 and the D.C. Circuit 52 and is reflected in the “Better than BART” provisions of the Regional Haze Rule that apply to the Coronado SIP Revision.53 Accordingly, in evaluating the Coronado SIP Revision under section 110(l) with respect to the Act's visibility protection requirements, the relevant question is not whether it would interfere with the BART determination in our FIP, but whether it would interfere with the overall statutory requirement for reasonable progress, as implemented through the “Better than BART” provisions of the Regional Haze Rule. For the reasons explained in our proposal and elsewhere in this document, we have determined that the Coronado SIP Revision satisfies the “Better than BART” requirements of the Regional Haze Rule, meaning that it will result in greater reasonable progress than the existing BART requirements for Coronado. Therefore, the Coronado SIP Revision complies with the Act's reasonable progress requirements. As such, we do not agree with the commenter that we must apply some separate criterion to determine whether the Coronado SIP Revision would interfere with those same requirements.

Furthermore, even if such a separate evaluation were necessary, we believe that the modeling performed to support ADEQ's demonstration of greater reasonable progress for the Interim Strategy is adequate to demonstrate non-interference with the Act's visibility protection provisions.54 As noted above, we interpret section 110(l) to allow for a modeling-based demonstration of non-interference with attainment, maintenance, and RFP requirements where increases in one pollutant are offset by decreases in another pollutant and the modeling analysis shows that the decreases will provide at least equivalent air quality benefits for each affected NAAQS.55 Similarly, such a modeling demonstration is appropriate to demonstrate non-interference with visibility protection requirements when reductions of one or more pollutants (in the case of the Interim Strategy, SO2 and PM) are being substituted for reductions of another pollutant (in the case of the Interim Strategy, NOX). As described in our proposal and elsewhere in this document, the modeling submitted with the Coronado SIP Revision demonstrates that the Interim Strategy will result in improved visibility at all affected Class I areas compared with 2014 Baseline Emissions (prong 1) and will result in improved visibility, on average, across all Class I areas, compared with BART on both the 20% best and worst days (prong 2).56 As the commenter noted, the modeling indicates that visibility improvement at certain Class I areas will be slightly less under the Interim Strategy as compared with BART between 2018 and 2025. However, we do not believe that a temporary decrease in the rate of improvement at these areas constitutes “interference” with the Act's visibility protection requirements, given that it is accompanied by a greater improvement at other Class I areas. As the D.C. Circuit has explained, “nothing in [CAA] § 169A(b)'s `reasonable progress' language requires at least as much improvement at each and every individual area as BART itself would achieve (much less improvement at each area at every instant) . . . .” 57 Furthermore, once the Final Strategy is implemented by 2026, we anticipated that there will be greater improvement across all Class I areas compared to BART.58 Therefore, we conclude that the Coronado SIP Revision will not interfere with the CAA's visibility protection requirements.

The commenters' statements regarding the Cholla BART Reassessment are out of the scope of today's action. That action was a separate analysis based on the facts and circumstances of that SIP revision, which we finalized on March 17, 2017. We also do not agree with the commenter that we improperly applied a different rationale and analysis when determining whether the Coronado BART Alternative and the Cholla BART Reassessment complied with section 110(l). In both cases, we considered whether the relevant SIP revision would interfere with the applicable statutory requirements.59 However, despite some similarities between the two SIP revisions, they are not subject to all the same statutory requirements, so the respective section 110(l) analyses necessarily differ in some respects. In particular, because the Cholla BART Reassessment was a BART determination, we considered whether it met the CAA's BART requirements, as well as whether it was consistent with the CAA's long-term national goal of restoring natural visibility conditions at Class I areas.60 Because the CAA's BART requirements do not apply to a BART alternative,61 we did not consider them in reviewing the Coronado SIP Revision under section 110(l). Rather, as explained above, we have considered whether the Coronado SIP Revision is consistent with the CAA requirement for reasonable progress toward the long-term national goal.

Finally, while we do not agree that our responses to comments concerning the Cholla BART Reassessment were mistaken, those responses are not at issue in this action. To the extent that the commenter's concerns are relevant to the Coronado SIP Revision, we have addressed them above.

Comment: Earthjustice and EDF both raised concerns with the CAMx modeling relied upon by ADEQ and the EPA to determine that the Interim Strategy would result in greater reasonable progress than BART. They noted that, although ADEQ had performed additional analyses to determine if the modeled visibility changes could be attributed to emissions changes rather than model “noise,” the results were “still applicable to only one year's meteorological transport pattern.” They asserted that the EPA should require a demonstration that the emissions curtailments would result in better visibility conditions across varied air transport conditions.

EDF acknowledged that the EPA's modeling guidance allows the use of a single year of meteorological data for modeling of regional scale pollutants using CAMx. However, the commenters noted that the CAMx modeling for the Coronado BART Alternative focused on a single source's impacts on very specific geographic locations that “would have large variations due to yearly meteorological changes in wind transport patterns.” Earthjustice stated that most BART determinations and all BART alternatives that it was aware of relied on CALPUFF modeling. EDF and Earthjustice also noted that, where the EPA had previously used CAMx modeling for BART determinations, it was in conjunction with CALPUFF modeling, which typically uses at least a three-year meteorological database. They asserted that, in light of the small changes in visibility between the modeled emissions scenarios, “the difference in impacts that delineate one alternative curtailment period from another are within the margin of error for the model output.” They also stated that, if the difference were consistent from year to year, “it would provide more confidence in the resulting implementation of multiple curtailment periods.” Earthjustice added that “the demonstration provided by ADEQ only gives information about the relative performance of BART versus the alternative if the 2008 meteorological conditions are duplicated in every future year.”

Response: We acknowledge the commenters' concern about the robustness of a modeling analysis based on a single year of meteorology, given the year-to-year variability of meteorological conditions and their possible effect on visibility impacts. However, the Regional Haze Rule does not require modeling of a longer period to make a demonstration under the two-prong test, and EPA guidance also does not recommend a longer period. Rather, to address a range of meteorological conditions, the EPA's photochemical modeling guidance recommends modeling a full year. Our current guidance states that “the preferred approach for regional haze-related model applications is to simulate an entire, representative year.” 62 More recent draft guidance states:

Thus, modeling a full year with a photochemical model to represent visibility impairment on the 20% best and worst days is consistent with EPA guidance.

We also note that states and the EPA rarely, if ever, model more than a single year with a photochemical model even for NAAQS attainment demonstrations covering large urban areas with thousands of sources possibly subject to emission controls. A key reason for the practice and recommendation of modeling just a single year is the time and expense involved in running the computationally-intensive computer model and in preparing meteorological and emissions inputs. The emission inventory requires economic variables and population estimates for the whole area covered in the model domain, as well as the emissions calculations for the many sources of pollution in the domain. Meteorological and other model input parameters typically must be adjusted in an iterative process to ensure the model performs adequately. The model's performance must then be evaluated. All of these tasks must be done separately for each year. Thus, while modeling longer periods may improve the robustness of the modeling results, it also requires significant additional time and resources. Therefore, it is prudent to assess whether the benefits of the modeling justify the additional effort for each individual application. Given that the modeling for the Coronado SIP Revision affects only a single source for a limited period of time (i.e., the period of the Interim Strategy), we do not think it is reasonable to require more than a single year of photochemical modeling.

We note that the situation was different for the CALPUFF modeling that states and the EPA conducted for BART determinations, for which the EPA recommended that at least three years of meteorological data be used.64 Under the BART Guidelines, CALPUFF could be used for assessing the visibility impacts of a single source without the process of input adjustment and performance evaluation described above for photochemical models.65 Furthermore, the emission inventory for BART modeling was a single source, rather than the thousands of sources needed in a photochemical model such as CAMx. The meteorological inputs to CALPUFF are also simpler than for a photochemical model, and they were developed by multistate Regional Planning Organizations, such as the Western Regional Air Partnership (WRAP), for use in BART determinations for numerous different facilities. In summary, while the CALPUFF modeling used for BART determinations employed multiple years of meteorology, the cost and effort involved was lower than for CAMx, and it was spread over multiple states and sources. By contrast, the Interim Strategy in the Coronado SIP Revision affects only a single source for a limited period of time. Accordingly, we find that modeling multiple years with CAMx for the two-prong test applied to the Interim Strategy would constitute a disproportionately high level of effort relative to the modest benefit of such an approach.

Regarding the specific year chosen for modeling the Interim Strategy, as discussed in connection with SRP's comments and the analysis submitted by Ramboll Environ,66 we find that the 2008 meteorology year was adequately representative for the two-prong test. In addition, as explained further below, that analysis presented evidence that 2008 was a conservative year, in that the Interim Strategy would be expected to show a greater benefit compared to the baseline and BART in other years.

Comment: Earthjustice and EDF expressed concern about the use of a projected 2020 inventory rather than clean conditions or the inventory of a “known year” for the CAMx modeling. Earthjustice asserted that, “[t]o the extent EPA considers 2020 to be more representative of future or cleaner air quality conditions, CAMx should instead have been run with only single source emissions plus nonanthropogenic emissions to simulate reaction chemistry under natural conditions.” They argued that the EPA must include CALPUFF modeling to help support the conclusion that the Coronado BART Alternative is in fact better than BART “when looking at source impacts compared with natural conditions.”

Response: We do not agree that ADEQ should have used natural conditions or the inventory of a “known” (i.e., past) year to evaluate the Interim Strategy. The Regional Haze Rule does not identify which background conditions states must use for evaluating greater reasonable progress under the two-prong test in 40 CFR 51.308(e)(3). However, in the preamble to the final rule promulgating the two-prong test, we explained that:

In other words, the projected conditions at the time the BART alternative will be implemented, including emissions from all other sources, but assuming that no emission reductions from BART or the BART alternative have yet occurred, are an appropriate background for modeling under the two-prong test. Here, the Interim Strategy will be implemented between 2018 and 2025, so ADEQ's decision to use the 2020 emissions inventory as the background conditions for comparing the Interim Strategy to BART was reasonable.

We also do not believe that it is necessary to conduct CALPUFF modeling to support the conclusion that the Coronado BART Alternative would result in greater reasonable progress than BART. While ADEQ could have elected to conduct CALPUFF modeling to make a demonstration of greater reasonable progress, it instead chose to use CAMx modeling to make this demonstration. As explained in our proposal:

Because it incorporates the many emissions sources that create the background conditions at the time the BART alternative will be implemented, CAMx is well suited for modeling under the two-prong test.69 Furthermore, as a result of recent developments in modeling techniques,70 the EPA and states have begun to use photochemical models such as CAMx to assess the visibility impacts from individual sources such as Coronado.71 Thus, ADEQ appropriately relied on CAMx modeling to assess the Coronado BART Alternative under the two-prong modeling test.

Comment: Earthjustice and EDF objected to the fact that the CAMx modeling used to assess the Coronado BART Alternative was limited to a range of 300 kilometers (km), given that the EPA has previously used CAMx to assess impacts beyond the 300 km range. EDF stated that the EPA should explain why the 300 km limit was appropriate. Earthjustice argued that the EPA should include modeling results for Class I areas outside of 300 km.

Response: We agree with the commenters that there is no a priori reason to limit the modeling under the two-prong test to Class I areas within 300 km.72 We nevertheless find that the set of Class I areas evaluated in the CAMx modeling is adequately representative in this instance. The 300 km radius used in the modeling covers a large region, a range of geographic settings, and a full range of compass directions from Coronado. In addition, the visibility impacts of Coronado's emissions generally decline with distance.73 Because of that, when comparing projected visibility conditions under the BART Alternative scenario to projected visibility conditions under the baseline scenario, the differences between the two scenarios generally decline with distance. The same is true when comparing the BART Alternative to BART. As a result, while including more distant areas would have a small effect on the numerical values used in the two-prong test, doing so would be unlikely to change the outcome of the test.

Comment: SRP commented that it strongly supports the EPA's:

• Proposed approval of ADEQ's demonstration under 40 CFR 51.308(e)(3) that the Coronado BART Alternative Interim Strategy will achieve greater reasonable progress than BART at Coronado;

• proposed approval of the CAMx modeling used by ADEQ;

• determination that the Coronado BART Alternative Final Strategy will result in greater emission reductions than BART for Coronado; and

• determination that the Final Strategy and its associated emission reductions are not necessary to demonstrate that the Coronado BART Alternative will achieve greater reasonable progress than BART during the period of the first long-term strategy.

Response: We acknowledge the comments.

Comment: SRP urged the EPA to note the assessment that ADEQ conducted that shows the importance of SO2 (and resulting sulfate) reductions in improving visibility in Class I areas potentially affected by Coronado. In particular, SRP asserted that:

Response: As noted in footnote 31 of our proposal,74 ADEQ's “Supplemental Analysis of IMPROVE Monitoring Data” is not directly relevant to the State's demonstration of greater reasonable progress under the two-prong test in 40 CFR 51.308(e)(3), so we did not consider it in evaluating the State's demonstration. The results of the CAMx modeling establish that, through a combination of controls, emission reductions, atmospheric chemistry, and meteorology, the Coronado BART Alternative will result in greater reasonable progress than BART, as required under 40 CFR 51.308(e)(3).

Comment: SRP stated that, while the Coronado BART Alternative was proposed to be approved under 40 CFR 51.308(e)(3), it is also approvable under 40 CFR 51.308(e)(2)(i)(E) under the weight-of-evidence test. SRP further noted that “[t]he clear weight of evidence test allows states to take into consideration a wide range of factors, visibility metrics, or other relevant considerations in making a better-than-BART determination.”

Response: The EPA acknowledges the comment.

Comment: SRP noted that the EPA described the Interim Strategy as “in effect from December 5, 2017 to December 31, 2025,” and indicated that the Final Strategy “would take effect on January 1, 2026.” The commenter stated that, “the December 31, 2025, date represents a deadline for SRP to install and operate an SCR on Unit 1 or close Unit 1, rather than the conclusion of the effective period for the Interim Strategy” and requested that the EPA clarify that the installation and operation of the SCR on Unit 1 or closure of Unit 1 will occur no later than December 31, 2025, and that the Interim Strategy will be in effect until the installation of SCR on Unit 1 or closure of Unit 1.

Response: We agree with the commenter that the installation and operation of the SCR on Unit 1 or closure of Unit 1 must occur no later than December 31, 2025, and that the Interim Strategy will be in effect until the installation of SCR on Unit 1 or closure of Unit 1. We have made this clarification in this final notice.

Comment: SRP noted that the EPA described the SO2 emission cap as “plant-wide” and “facility-wide.” The commenter recommended that the EPA “clarify that the 1,970 tpy SO2 emission cap applies to the aggregate annual emissions from Unit 1 and Unit 2 only and does not apply to any emissions from any other sources at the site.” The commenter also noted that, “[i]n the event that Unit 1 shuts down, the SO2-emission tonnage limit applicable after the shutdown of that unit is 1,080 tons per calendar year.”

Response: We agree with the commenter that the 1,970 tpy SO2 emission cap applies to the aggregate emissions from Unit 1 and Unit 2, and that, if Unit 1 shuts down, an SO2 emission cap of 1,080 tpy would apply to Unit 2. We have made this clarification in this final notice.

Comment: SRP asserted that the EPA incorrectly stated that “the Coronado SIP Revision will require equivalent or lower emissions of NOX, PM and SO2 for all future years, compared to the emission levels currently allowed under the applicable implementation plan (including both the Arizona Regional Haze SIP and the Arizona Regional Haze FIP).” The commenter noted that the Interim Strategy requires fewer NOX reductions than the Arizona Regional Haze FIP.

Response: We agree with SRP that the Interim Strategy requires fewer NOX reductions than the Arizona Regional Haze FIP between December 5, 2017, and December 31, 2025. However, the statement from our proposal quoted by the commenter refers to “the emission levels currently allowed under the applicable implementation plan.” 75 Because the compliance date for the NOX emission limits in the Arizona Regional Haze FIP is December 5, 2017, the applicable implementation plan does not currently limit NOX emissions from Coronado. Thus, as correctly noted in our proposal, the Coronado SIP Revision will require lower emissions of NOX, PM and SO2 for all future years, compared to the emission levels currently allowed under the applicable implementation plan.

Comment: SRP included as an attachment to its comments a technical memorandum from Ramboll Environ that evaluated whether the CAMx modeling results for the two-prong test were influenced by numerical noise, based on a spatial and numerical analysis of CAMx model outputs for visibility and its sulfate and nitrate components.76 The components reflect the differences in SO2 and NOX, respectively, between BART and the Interim Strategy. The differences showed a spatial pattern consistent with realistic gradual variation in the atmosphere, rather than random variation as would be expected from numerical noise. Therefore, the memorandum concluded that the modeled numerical differences represent real visibility improvements and are not just numerical artifacts.

Response: This same analysis was included in the Coronado SIP Revision and evaluated for our proposal. We reaffirm our finding that the analysis supports the conclusion that the two-prong test results indicate actual visibility improvement under the Interim Strategy compared to BART and no degradation relative to the baseline.77

Comment: SRP included as an attachment to its comments a second memorandum from Ramboll Environ analyzing (1) whether the meteorology from the year that was used for modeling (2008) was adequately representative of other years and (2) whether, extending the length of the curtailment periods under the Interim Strategy would give additional visibility benefits.

The first of three Ramboll Environ analyses of the representativeness of 2008 was a comparison of 2008 temperatures and precipitation to typical conditions based on more than 100 years of meteorological data. The memorandum noted that temperature affects the oxidizing potential of the atmosphere, which in turn affects the conversion of SO2 and NOX emissions into visibility-impairing sulfates and nitrates. Ramboll Environ found that 2008 was somewhat warmer than the average, but that generally the temperature was well within the normal range of variation. The memorandum also noted that precipitation can remove visibility-impairing pollutants from the atmosphere and found that 2008 precipitation was classified as “Near Normal.” Accordingly, Ramboll Environ concluded that 2008 was reasonably representative for purposes of the visibility modeling.

In a second analysis, Ramboll Environ examined visibility-impairing ammonium sulfate and ammonium nitrate concentrations during 2000-2012 as measured at four Class I areas in different compass directions from Coronado. These are shown as time series bar or line graphs for the various pollutants and areas. Ramboll Environ found that the annual averages for 2008 were near the middle of the averages for the individual years from 2000-2012. Monthly averages for 2008 were also consistent with the overall range seen from 2000-2012. Compared to other years, monthly sulfate averages for 2008 tended to be on the high side during March, April, and September, and on the low side in mid-summer and in December through February, but nevertheless consistent with the overall range seen for 2000-2012. Ramboll Environ concluded that, because the curtailment periods for Interim Strategy options IS3 and IS4 78 are from November 21 through January 21, overlapping the period for which 2008 tended to have lower sulfate, the modeled visibility improvement for these options would also tend to be lower than would be expected for other years. That is, the actual visibility benefits of these options would generally be expected to be larger than the modeling results indicate. The same conclusion applies to nitrate, for which 2008 monthly averages tend to be on the low side, compared to the averages for 2000-2012 years during the months that include the curtailment periods (November, December, and January).

In its third analysis, Ramboll Environ examined the monthly distribution of the 20% worst visibility days to see how many fell within the November 21-January 20 curtailment period for 2008 in comparison to 2000-2012. This analysis showed that 2008 had a lower than average number of 20% worst visibility days within this period. Ramboll Environ concluded that, because more of the 20% worst visibility days would fall within the curtailment period in a typical year, the actual visibility benefits of the Interim Strategy would generally be larger than the modeling results indicate.

Ramboll Environ's analysis of the approximately 60-day curtailment period used in Interim Strategy options IS3 and IS4 relied on post-processing of modeling results to assess extending the period by 20, 40, 60, and 80 days. Ramboll Environ presented bar graphs showing the amount by which extending the curtailment period impacted the strengths of the directional results of the two-prong test. For prong 1, the visibility benefit of the Interim Strategy increased very little as the curtailment period was extended. For prong 2, Ramboll Environ stated that even doubling the curtailment period would yield only a 0.002 deciview improvement over the proposed period, which Ramboll Environ viewed as small. Therefore, SRP concluded that extending the curtailment period would have only a small visibility benefit.

Response: We acknowledge the additional analysis provided by SRP, which supports the conclusion that 2008 is a representative year for modeling and that modeling results for this single year are adequate for evaluating the Interim Strategy under the two-prong test. Although the Ramboll Environ analysis primarily addressed IS3 and IS4, the curtailment period for IS2 (October 21-January 31) also includes the months of November through January, so the same conclusion also applies to IS2.

We acknowledge the analysis of extending the curtailment period, but we note that this analysis is not necessary to demonstrate that the Interim Strategy would result in greater reasonable progress than BART. It is sufficient that the modeling demonstrates that each of the Interim Strategy options passes the two-prong test.

For the reasons explained in our proposal and in our responses to comments in this document, we have determined that the Coronado SIP Revision will provide for greater reasonable progress toward natural visibility conditions than BART. We have also determined that the Coronado SIP Revision meets all other requirements of the CAA and the EPA's implementing regulations. Therefore, we are approving the Coronado SIP Revision into the Arizona SIP. Because this approval fills the gap in the Arizona Regional Haze SIP left by the EPA's prior partial disapproval with respect to Coronado, we are withdrawing those portions of the Arizona Regional Haze FIP that address BART for Coronado. Additionally, we are taking final action to remove those portions of the Arizona SIP that have either been superseded by previously-approved revisions to the Arizona SIP or are being superseded by this final approval of the Coronado SIP revision.

As explained above, the Coronado SIP Revision will result in reduced emissions of both SO2 and PM10 compared to the existing Arizona Regional Haze SIP and FIP requirements. While the Coronado SIP Revision will result in fewer NOX reductions than the Arizona Regional Haze FIP would have required between 2018 and 2025, it will ensure that NOX emissions remain at or below current levels until 2025, after which it will require NOX emissions reductions equivalent to or greater than would have been required under the Arizona Regional Haze FIP. Furthermore, Coronado is located in an area that is designated attainment, unclassifiable/attainment, or unclassifiable, or has not yet been designated for each of the current NAAQS. Therefore, the EPA believes that this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the state permit provisions described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents 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).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.79

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only a single facility and is therefore not a rule of general applicability.

This action is not an Executive Order 13771 regulatory action because this action approving revisions to a State Implementation Plan and removing the applicable Federal Implementation Plan for Regional Haze applies to only a single facility and is therefore is a Rule of Particular Applicability that is exempted under Executive Order 12866.

This action does not impose an information collection burden under the PRA. This rule applies to only a single facility. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. The owner of facility affected by this rule, SRP, exceeds this threshold.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

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

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.

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

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

This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in section V above.

Pursuant to CAA section 307(d)(1)(B), the EPA has determined that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Arizona Regional Haze FIP that apply to Coronado is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under CAA section 110(c). Furthermore, CAA section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” The EPA determines that the provisions of 307(d) apply to the EPA's action on the Coronado SIP Revision.

This rule is exempt from the CRA because it is a rule of particular applicability. The EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only applies to a single named facility.

Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons set forth in the preamble, the EPA amends 40 CFR part 52 as follows:

In our notice of proposed rulemaking published on July 13, 2017 (82 FR 32282), the EPA proposed to approve Utah's January 28, 2013 SIP submission, which repeals and reenacts the General Burning provisions in R307-202 with several amendments (discussed in the proposed rulemaking). Additionally, the EPA proposed approval of Utah's July 8, 2015 revisions, which exempts ceremonial burning conducted by a “Native American spiritual advisor” during restricted burn days. In this rulemaking, we are taking final action on both SIP submittals. The reasons for our approval are provided in detail in the proposed rule.

We received no comments on the proposed rule.

For the reasons expressed in the proposed rule, the EPA is approving revisions to Sections in R307-202 of the State's General Burning provisions from the January 28, 2013 and July 8, 2015 submittals.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Utah General Burning provisions described in the amendments set forth to 40 CFR part 52 below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 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, Aug. 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 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, Feb. 16, 1994).

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

40 CFR part 52 is amended to read as follows:

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

On April 14, 2016 (80 FR 22025), we published a final action to partially approve and partially disapprove SIP revisions submitted by California to address CAA Moderate area attainment plan requirements for the 2006 24-hour PM2.5 NAAQS in the South Coast nonattainment area (“2012 PM2.5 Plan”). As part of that action, we disapproved two elements of the 2012 PM2.5 Plan because they did not fully meet the requirements for RACM/RACT-level controls under sections 189(a)(1)(C) and 172(c)(1) of the CAA and thus also did not meet the requirement for RFP under section 172(c)(2) of the CAA. This disapproval action became effective on May 16, 2016, and started a sanctions clock for imposition of offset sanctions 18 months after May 16, 2016, and highway sanctions 6 months later, pursuant to CAA section 179 and our regulations at 40 CFR 52.31. Therefore, offset sanctions will apply on November 16, 2017, and highway sanctions will apply on May 16, 2018, unless the EPA determines that the deficiencies forming the bases for the disapprovals have been corrected.

On March 17, 2017, the State of California submitted, as a revision to the California SIP, amendments to the South Coast Air Quality Management District's (SCAQMD or “District”) Regional Clean Air Incentives Market (RECLAIM) program, which consists of SCAQMD rules 2000 to 2020 and applies to stationary sources that emit at least four tons per year of nitrogen oxides or sulfur oxides in the South Coast. Additionally, on May 22, 2017, CARB submitted the SCAQMD's public draft version of the “Supplemental RACM/RACT Analysis for the 2006 24-Hour PM2.5 and 2008 8-Hour Ozone Standards” (“2017 RACT Supplement”).1 We proposed to approve the revised RECLAIM rules on June 6, 2017 (82 FR 25996), and fully approved these rules on September 14, 2017 (82 FR 43176). We proposed to approve the 2017 RACT Supplement on June 15, 2017 (82 FR 27451), and fully approved it on September 20, 2017 (82 FR 43850).2

In the Proposed Rules section of today's Federal Register, we are proposing to approve the RACM/RACT and RFP demonstrations in the 2012 PM2.5 Plan based on our final approvals of the revised RECLAIM rules and the 2017 RACT Supplement, because we believe these SIP submissions correct the deficiencies identified in our April 14, 2016 partial disapproval action. Based on today's proposed approval, we are taking this interim final rulemaking action, effective on publication, to defer the imposition of the offset sanctions and highway sanctions triggered by our April 14, 2016 partial disapproval.

The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment described in this interim final determination and the proposed full approval of the RACM/RACT and RFP demonstrations in the 2012 PM2.5 Plan, we would take subsequent final action to reimpose sanctions pursuant to 40 CFR 52.31(d). If no comments are submitted that change our assessment, we will take final action to approve the RACM/RACT and RFP demonstrations in the 2012 PM2.5 Plan, and all sanctions and sanction clocks related to the May 16, 2016 disapproval action with respect to these elements of the 2012 PM2.5 Plan will be permanently terminated on the effective date of the final approval.

We are making an interim final determination to defer the imposition of CAA section 179 sanctions associated with our partial disapproval of the 2012 PM2.5 Plan based on our concurrent proposal to determine that our prior approvals of the District's revised RECLAIM rules and 2017 RACT Supplement correct the deficiencies that initiated sanctions clocks.

Because the EPA has preliminarily determined that the State has corrected the deficiencies previously identified in the EPA's partial disapproval action, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action the EPA is providing the public with an opportunity to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the State's revised RECLAIM rules and 2017 RACT Supplement and, through a separate action, is proposing to find that the State has corrected the deficiencies that started the sanctions clocks. Therefore, it is not in the public interest to impose sanctions when the State has most likely taken appropriate action to correct the deficiencies that triggered the sanctions clocks. Moreover, it would be impracticable to go through notice-and-comment rulemaking on a finding that the State has corrected the deficiencies prior to the rulemaking approving the State's actual submission addressing those deficiencies. Therefore, the EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while the EPA completes its rulemaking process on the approvability of the State's submission addressing the deficiencies. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this action is to relieve a restriction (5 U.S.C. 553(d)(1)).

This action defers federal sanctions and imposes no additional requirements. For that reason, this action:

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

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

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

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

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

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

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

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

• Does not provide 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).

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to Congress and the Comptroller General. However, section 808 provides that any rule for which the issuing agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). EPA has made such good cause finding, including the reasons therefore, and established an effective date of October 10, 2017. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

In our notice of proposed rulemaking published on July 28, 2017 (82 FR 35153), the EPA proposed to approve revisions to Article 33-15 Air Pollution Control rules of the North Dakota Administrative Code submitted by the State of North Dakota on January 28, 2013, and April 22, 2014. In this rulemaking, we are taking final action on a revision submitted in the January 28, 2013 submittal to revise significance levels. The North Dakota State Health Council adopted those amendments on August 14, 2012 (effective January 1, 2013). In addition, we are also taking final action on a revision that was included in the April 22, 2014 submittal to add EPA Reference Method 22 for determining opacity for limits expressed as zero percent opacity. The North Dakota State Health Council adopted those amendments on February 11, 2014 (effective April 1, 2014). The reasons for our approval are provided in detail in the proposed rule.

We received no comments on our proposed rule.

For the reasons expressed in the proposed rule, the EPA is approving revisions to sections of the State's Air Pollution Control rules from the January 28, 2013, and April 22, 2014 submittals. A summary of the revisions in North Dakota's Air Pollution Control rules the EPA is approving is provided in Table 1.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of North Dakota Air Pollution Control rules described in the amendments set forth to 40 CFR part 52 below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 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, Aug. 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 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, Feb. 16, 1994).

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

40 CFR part 52 is amended to read as follows:

I. Background

On May 8, 2013 and August 23, 2016, ADEM submitted SIP revisions for EPA's approval that include changes to Alabama's PSD permitting regulations, among other changes. In a notice of proposed rulemaking published on August 15, 2017 (82 FR 38660), EPA proposed to approve certain portions of these submittals that make changes to ADEM Administrative Code Rule 335-3-14-.04—“Air Permits Authorizing Construction in Clean Areas (Prevention of Significant Deterioration Permitting (PSD)),” which applies to the construction or modification of any major stationary source in areas designated as attainment or unclassifiable as required by part C of title I of the CAA.

Alabama's May 8, 2013, SIP submittal includes changes to Rule 335-3-14-.04 to address the Federal rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5): Amendment to the Definition of `Regulated NSR Pollutant' Concerning Condensable Particulate Matter,” 77 FR 65107 (October 25, 2012) (hereinafter referred to as the PM2.5 Condensables Correction Rule),1 and plantwide applicability limits (PALs) for greenhouse gases (GHGs) as allowed in the Federal rule entitled “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability Limits,” 77 FR 41051 (July 12, 2012) (hereinafter referred to as the GHG Step 3 Rule).2 In addition, the SIP submittal includes changes to the definition of GHGs in Rule 335-3-14-.04 and Rule 335-3-16 (regarding major source operating permits) to address EPA's July 20, 2011 rule deferring PSD requirements for carbon dioxide (CO2) emissions from bioenergy and other biogenic sources (hereinafter referred to as the “Biomass Deferral Rule”).3 Alabama's May 8, 2013, SIP submission also includes the following changes to other Alabama rules: Changes to the definition of Volatile Organic Compounds (VOCs) at Rule 335-3-1-.02; changes to the incorporation by reference (IBR) of the Federal New Source Performance Standards in Chapter 335-3-10 and National Emissions Standards for Hazardous Air Pollutants in Chapter 335-3-11; and changes regarding transportation conformity provisions at Rule Chapter 335-3-16.

Alabama's August 23, 2016, SIP submittal includes changes to Rule 335-3-14-.04 and Rule Chapter 335-3-16 to remove the treatment of GHGs as an air pollutant for the specific purpose of determining whether a source is a major source (or a modification thereof) in PSD and title V permitting requirements.4 The submittal also withdraws the portion of the State's May 8, 2013, SIP submittal that revises Rule 335-3-14-.04 to address the Biomass Deferral Rule and makes changes to the GHG Step 3 language proposed in Alabama's May 8, 2013, submittal.

In the August 15, 2017, proposed rulemaking, EPA proposed to approve only the portions of the May 8, 2013, submittal that make changes to the GHG PAL provisions pursuant to the GHG Step 3 rule and the portions of the August 23, 2016, submittal that discontinue regulation of GHGs as an air pollutant for the specific purpose of determining whether a source is a major source (or a modification thereof) in PSD and title V permitting requirements and that make changes to the GHG Step 3 language proposed in Alabama's May 8, 2013, submittal. EPA did not propose any action on the remaining portions of these submittals. The details of Alabama's SIP revisions and the rationale for EPA's action are further explained in the notice of proposed rulemaking. Comments on the proposed rulemaking were due on or before September 14, 2017. EPA did not receive any comments on the proposed action, adverse or otherwise.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of ADEM Administrative Code Rules 335-3-14-.04(1)(k), 335-3-14-.04(2)(a)(ii), and 335-3-14-.04(b)4, state effective on November 25, 2014. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion into Alabama's SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.5

EPA is finalizing approval of portions of Alabama's May 8, 2013, and August 23, 2016, SIP submittals that revise the PSD permitting program at Rule 335-3-14-.04—“Air Permits Authorizing Construction in Clean Areas (Prevention of Significant Deterioration Permitting (PSD))” by removing language regulating GHG-only sources and by adding language to the PAL provisions.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

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

On July 28, 2017 (82 FR 35149), the EPA proposed action on the following documents submitted into the California SIP.

Specifically, the EPA proposed to conditionally approve AVAQMD's 2006 and 2015 RACT SIPs with respect to Rule 462, Organic Liquid Loading; Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines; Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations; and Rule 1171, Solvent Cleaning Operations. Simultaneously, EPA proposed to fully approve the remainder of the 2006 and 2015 RACT SIPs, and to fully approve AVAQMD's negative declarations submitted on October 23, 2015 and June 7, 2017. We simultaneously withdrew our December 15, 2016 proposal to partially approve and partially disapprove AVAQMD's 2006 and 2015 RACT SIPs because the AVAQMD committed to address the identified deficiencies within one year of the approval of the plan revision.

We proposed to approve these submittals because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the submittals and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted. Therefore, as authorized in subsections 110(k)(3) and 110(k)(4) of the Act, the EPA is conditionally approving AVAQMD's 2006 and 2015 RACT SIPs with respect to Rule 462, Organic Liquid Loading; Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines; Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations; and Rule 1171, Solvent Cleaning Operations, and fully approving the remainder of the 2006 and 2015 RACT SIPs and AVAQMD's negative declarations submitted on October 23, 2015 and June 7, 2017 into the California SIP.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0012 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 11, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0012, by one of the following methods:

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

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

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

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

In the Federal Register of April 10, 2017 (82 FR 17175) (FRL-9959-61), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of pesticide petition (IN-11002) by Spring Trading Company (203 Dogwood Trail, Magnolia, TX 77354) on behalf of Ingevity Corporation (5255 Virginia Avenue, North Charleston, SC 29406). This petition requested that 40 CFR 180.910, 40 CFR 180.930, and 40 CFR 180.940(a) be amended by establishing exemptions from the requirement of a tolerance for residues of tall oil fatty acids (CAS Reg. No. 61790-12-3) when used as an inert ingredient (solvent/carrier) in pesticide formulations applied to growing crops and to raw agricultural commodities after harvest, in pesticides applied in/on animals, or in antimicrobial formulations for food contact surfaces. That document referenced the summary of the petition prepared by Spring Trading Company on behalf of Ingevity Corporation, the petitioner, which are available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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

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

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

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

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

The acute oral toxicity is low in rats for tall oil fatty acids; the lethal dose (LD50) is >10,000 milligrams/kilogram (mg/kg). Tall oil fatty acids are not a dermal sensitizer in the guinea pig maximization test. Acute dermal toxicity (study available with oleic acid) was not observed in guinea pigs. Skin and eye irritation and inhalation studies are not available.

Tall oil fatty acids do not exhibit toxicity when administered via the diet to rats at 2,500 mg/kg/day for 90 days.

A two-generation reproduction toxicity study in rats was available for tall oil fatty acids. Fetal susceptibility was not observed. Neither maternal nor developmental adverse effects were observed following oral administration of tall oil fatty acids at doses as high as 5,000 mg/kg/day.

Carcinogenicity studies with tall oil fatty acids are not available; however, there is no toxicological endpoint of concern up to 5,000 mg/kg/day nor is there a potential for mutagenicity. Therefore, tall oil fatty acids are not expected to be carcinogenic.

Mutagenicity studies, the Ames test and mammalian gene mutations, are negative for tall fatty acids. Therefore, tall oil fatty acids are not mutagenic.

Neurotoxicity and immunotoxicity studies are not available for review; however, evidence of neurotoxicity and immunotoxicity is not observed in the submitted studies.

The available toxicity studies indicate that tall oil fatty acids have a very low overall toxicity. The NOAELs in a 90-day oral and a reproduction toxicity studies were ≥5,000 mg/kg/day; well above the limit dose of 1,000 mg/kg/day. Since no signs of toxicity were observed, even at doses above the limit dose, an endpoint of concern for risk assessment purposes was not identified. Therefore, a qualitative risk assessment was conducted for acute and chronic dietary exposures and short and intermediate dermal and inhalation exposures.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tall oil fatty acids, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA qualitatively assessed dietary exposures from tall oil fatty acids in food as follows:

Dietary exposure (food and drinking water) to tall oil fatty acids can occur following ingestion of foods with residues from treated crops, animals or food contact surfaces. Use on food crops may result in residues in drinking water.

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

Tall oil fatty acids may be used in pesticide products and non-pesticide products that may be used in and around the home. Based on the discussion above, a quantitative residential exposure assessment for tall oil fatty acids was not conducted.

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

Based on the available data, tall oil fatty acids do not have a toxic mechanism; therefore, section 408(b)(2)(D)(v) does not apply.

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

As part of its qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of tall oil fatty acids, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

Because no toxicological endpoints of concern were identified, EPA concludes that aggregate exposure to residues of tall oil fatty acids will not pose a risk to the U.S. population, including infants and children, and that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to tall oil fatty acids residues.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, exemptions from the requirement of a tolerance are established under for residues of tall oil fatty acids (CAS Reg. No. 61790-12-3) when used as an inert ingredient (solvent/carrier) in pesticide formulations as follows: For application to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910; for application to animals under 40 CFR 180.930; and for use in antimicrobial pesticide formulations applied to for food contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a).

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at https://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to https://www.epa.gov/aboutepa/about-office-chemical-safety-and-pollution-prevention-ocspp and select “Test Guidelines for Pesticides and Toxic Substances.”

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0309 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 11, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0309, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

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

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of tolfenpyrad (4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide), including its metabolites and degradates, in or on dry bulb onion at 0.09 parts per million (ppm), and watermelon at 0.7 ppm. These time-limited tolerances expire on December 31, 2020.

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

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

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

The Texas Department of Agriculture (TDA) stated that an emergency situation required the use of tolfenpyrad on dry bulb onions (Allium cepa) to control onion thrips (Thrips tabaci Lindeman) in the Texas counties of Cameron, Dimmitt, Frio, Hidalgo, Maverick, Starr, Uvalde, Willacy and Zavala. According to TDA, this year's exceptionally mild winter and record high heat caused the development of large populations of onion thrips, a principle pest of onions, early in the onion crop cycle. The threshold level for applying pesticides to control thrips in onions is 5 to 25 thrips per plant, and TDA stated that over 100 thrips per plant were observed in Texas' dry bulb onion fields in early March, 2017. TDA stated that multiple applications of registered pesticides were not controlling these extreme population levels which can reduce yields and bulb size by as much as 50%. In addition, the transmission of iris yellow spot virus in onions, exclusively vectored by onion thrips, is a concern, and several onion fields have been observed with positive symptoms. TDA stated that this virus severely affects the shipping quality of onions, and can be more devastating than damage from the thrips themselves. Upon EPA concurrence, TDA allowed the use of tolfenpyrad under the provisions of a crisis exemption beginning on March 17, 2017, and subsequently requested a specific exemption to allow the use of tolfenpyrad in dry bulb onions to continue beyond the 15 days provided by a crisis exemption alone.

Separately, the Hawaii Department of Agriculture (HDA) stated that an emergency developed due to outbreaks of melon thrips in watermelon fields at unusually high levels, (up to 200 thrips per leaf), which registered pesticides were not controlling. HDA stated that above-average rainfall caused rapid growth of host plants, leading to development of very high levels of melon thrips in areas near watermelon fields. Subsequently, a 6-week drought caused early dry-down of this rainy-season vegetation, prompting massive migrations of melon thrips into neighboring watermelon fields. HDA stated that the melon thrips infestations have caused stunted vines, foliage discoloration, and in some instances have caused such severe damage that the plants no longer produce fruit. The melon aphid also transmits the tomato spotted wilt virus, which causes silver mottle disease in watermelon, further damaging the plants and causing additional yield losses. HDA stated that some watermelon acreage was abandoned due to the high level of damage from melon thrips infestations, and that significant yield and economic losses would occur in the remaining watermelon acreage without the requested use of tolfenpyrad. Upon EPA concurrence, HDA allowed the use of tolfenpyrad under the provisions of a crisis exemption, beginning on May 31, 2017, subsequently requesting a specific exemption to allow the use of tolfenpyrad in watermelon to continue beyond the 15 days provided under a crisis exemption alone.

After having reviewed the submissions, EPA determined that emergency conditions exist for these States, and that the criteria for approval of the emergency exemptions had been met. Therefore, EPA authorized specific exemptions under FIFRA section 18 for the use of tolfenpyrad on dry bulb onion for control of onion thrips in Texas, and on watermelon for control of melon thrips in Hawaii.

As part of its evaluation of the emergency exemption applications, EPA assessed the potential risks presented by residues of tolfenpyrad in or on dry bulb onion and watermelon. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemptions in order to address urgent, non-routine situations and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2020, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on dry bulb onion or watermelon after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether tolfenpyrad meets FIFRA's registration requirements for use on dry bulb onion and watermelon or whether permanent tolerances for these uses would be appropriate. Under these circumstances, EPA does not believe that these time-limited tolerance decisions serve as bases for registration of tolfenpyrad by a State for special local needs under FIFRA section 24(c), nor do these tolerances by themselves serve as the authority for persons in any States other than Texas and Hawaii to use this pesticide on the applicable crops under FIFRA section 18, absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemptions for tolfenpyrad, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure expected as a result of these emergency exemptions and the time-limited tolerances for residues of tolfenpyrad on dry bulb onion at 0.09 ppm, and watermelon at 0.7 ppm. EPA's assessment of exposures and risks associated with establishing the time-limited tolerances follows.

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

A summary of the toxicological profile and endpoints for tolfenpyrad used for human health risk assessment is discussed in Table 1 of the final rule published in the Federal Register of January 9, 2014, (79 FR 1599) (FRL-9904-70).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tolfenpyrad, EPA considered exposures under the time-limited tolerances established by this action as well as all existing tolfenpyrad tolerances in 40 CFR 180.675. EPA assessed dietary exposures from tolfenpyrad in food as follows:

i. Acute exposure. Acute dietary exposure is quantified and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure; such effects were identified for tolfenpyrad. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey/What We Eat in America (NHANES/WWEIA). For the purposes of this acute exposure assessment, EPA assumed tolerance-level residues and 100 percent crop treated (PCT) for those crops on which tolfenpyrad use is registered and proposed.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA. For the purposes of this chronic exposure assessment, EPA assumed 100 PCT and incorporated average residue levels from crop field trials for registered and proposed uses of tolfenpyrad.

iii. Cancer. No evidence of carcinogenicity was observed in cancer studies with mice and rats. For further detail on the results of these studies see “Tolfenpyrad. Human Health Risk Assessment” at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2012-0909. Therefore, in accordance with EPA's Final Guidelines for Carcinogen Risk Assessment (March 2005), tolfenpyrad is classified as “not likely to be carcinogenic to humans” and a cancer risk assessment is unnecessary.

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

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

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of tolfenpyrad are 26.9 ppb for acute exposure and 12.2 ppb for chronic exposure. These modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

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

Tolfenpyrad is not registered for any specific use patterns that would result in residential exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

EPA has not found tolfenpyrad to share a common mechanism of toxicity with any other substances, and tolfenpyrad does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tolfenpyrad does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was observed in developmental toxicity studies in rats or rabbits or a reproduction toxicity study in rats. However, the developmental immunotoxicity study (DIT) in rats suggests increased qualitative susceptibility in the young since toxicity observed in offspring animals was more pronounced than toxicity seen in maternal animals at the same dose. No evidence of quantitative susceptibility was seen in the study. There is low concern and there are no residual uncertainties regarding the increased qualitative prenatal and/or postnatal susceptibility observed for tolfenpyrad. When the DIT and the reproduction study are considered together, the offspring toxicity in the DIT is comparable in severity to maternal toxicity observed at the same dose in the reproduction study. Since the adverse effects in young occurred at exposure levels that have shown comparable effects in adults, EPA does not consider the DIT persuasive evidence of an increased susceptibility of infants or children to tolfenpyrad. Additionally, the effects observed in the DIT study are well-characterized, a clear NOAEL was identified, and the endpoints chosen for risk assessment are protective of potential offspring effects since a dermal hazard was not identified for tolfenpyrad, inhalation risk assessments are based on a route specific inhalation study, and the POD used for chronic dietary risk assessment is lower than where offspring effects were seen in the DIT study.

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

i. The toxicity database for tolfenpyrad is complete.

ii. There is no indication that tolfenpyrad is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. Although there is possibly increased qualitative susceptibility in the young in the DIT study in rats, there are no residual uncertainties regarding increased susceptibility for tolfenpyrad since, (1) comparable maternal toxicity was observed at the same dose in the reproduction study, (2) the offspring effects observed in the DIT study are well characterized and there is a clear NOAEL for the effects seen, (3) no evidence of quantitative susceptibility was seen in the DIT study and susceptibility was not observed (quantitative or qualitative) in rat or rabbit developmental toxicity or reproduction studies tested at similar doses, (4) the endpoints and PODs selected for risk assessment are protective, and (5) direct non-dietary exposure to children is not anticipated since there are no residential uses for tolfenpyrad. Thus, an additional FQPA safety factor is not necessary to protect infants and children.

iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tolfenpyrad in drinking water. Accordingly, these assessments will not underestimate the exposure and risks posed by tolfenpyrad.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food, drinking water and relevant residential exposure scenarios. Since there are no residential uses for tolfenpyrad, acute residential exposure is not anticipated and acute aggregate exposure results from dietary exposure to residues in food and drinking water alone. Therefore, acute aggregate risk estimates are equivalent to the acute dietary risk estimates. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tolfenpyrad will occupy 56% of the aPAD for the general U.S. population. Children 3-5 years old are the highest-exposed population subgroup with an estimated acute dietary exposure of 80% of the aPAD. Typically, EPA has concerns when estimated exposures exceed 100% of the acute or chronic population-adjusted dose (aPAD or cPAD). Acute dietary risk estimates are below EPA's level of concern for all populations.

2. Chronic risk. A chronic aggregate risk assessment takes into account chronic exposure estimates from dietary consumption of food and drinking water and relevant residential exposure scenarios. Since there are no residential uses for tolfenpyrad, chronic residential exposure is not anticipated and chronic aggregate exposure to tolfenpyrad results from dietary exposure to residues in food and drinking water alone. Therefore, chronic aggregate risk estimates for tolfenpyrad are equivalent to the chronic dietary risk estimates. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tolfenpyrad from food and water will utilize 32% of the cPAD for the general U.S. population, and 81% of the cPAD for children 1-2 years old (the population group receiving the greatest exposure).

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

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

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

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to tolfenpyrad residues.

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

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

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established MRLs for tolfenpyrad residues in dry bulb onion or watermelon.

Therefore, time-limited tolerances are established for residues of tolfenpyrad (4-chloro-3-ethyl-1-methyl-N-[4-(p-tolyloxy)benzyl]pyrazole-5-carboxamide), including its metabolites and degradates, in or on onion, dry bulb at 0.09 ppm, and watermelon at 0.7 ppm. These tolerances expire on December 31, 2020.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments.

NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.

The base quota for the General category is 466.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a “subquota” or portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. The subquotas for each time period are as follows: 24.7 mt for January; 233.3 mt for June through August; 123.7 mt for September; 60.7 mt for October through November; and 24.3 mt for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods. On December 19, 2016, NMFS published an inseason action transferring 16.3 mt of BFT quota from the December 2017 subquota to the January 2017 subquota period, resulting in a subquota of 41 mt for the January 2017 period and a subquota of 8 mt for the December 2017 period (81 FR 91873). For 2017, NMFS also transferred 40 mt from the Reserve to the General category effective March 2, and 156.4 mt from the Reserve to the General category effective September 28, resulting in an adjusted General category quota of 663.1 mt (82 FR 12747, March 7, 2017; 82 FR 46000, October 3, 2017). This transfer restored quota to the October through November and December subquota categories that otherwise would have been used to compensate for overharvests in earlier subquota periods, with the goal of making the subquota categories whole to the extent transferrable quota was available.

Based on the best available landings information for the General category BFT fishery as well as recent and anticipated catch rates and fishing conditions, NMFS has determined that the General category October through November subquota will be reached by October 5, 2017. Therefore, retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the Atlantic tunas General and HMS Charter/Headboat categories must cease at 11:30 p.m. local time on October 5, 2017. The General category will reopen automatically on December 1, 2017, for the December 2017 subperiod. This action applies to Atlantic tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat category permitted vessels, and is taken consistent with the regulations at § 635.28(a)(1). The intent of this closure is to prevent overharvest of the available General category October through November BFT subquota and help ensure reasonable fishing opportunities in the December subquota time period.

Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available atwww.nmfs.noaa.gov/sfa/hms/.

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. General and Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov or by using the HMS Catch Reporting App. If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. These fisheries are currently underway and the quota for the subcategory is projected to be reached shortly. Delaying this action would be contrary to the public interest because the subquota is projected to be reached shortly and any delay could lead to further exceedance, which may result in the need to reduce quota for the General category later in the year and thus could affect later fishing opportunities. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there also is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.28(a)(1) (BFT Fishery Closures), and is exempt from review under Executive Order 12866.

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102, and the initial 2017 allocations were published on December 22, 2016 (81 FR 93842).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan, as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i)(A) through (C) in the evaluation of requests for quota transfers or combinations.

New Jersey is transferring 380 lb (172 kg) of summer flounder commercial quota to Rhode Island. This transfer was requested to repay landings by a New Jersey-permitted vessel that landed in Rhode Island under a safe harbor agreement.

The revised summer flounder quotas for calendar year 2017 are now: New Jersey, 946,132 lb (429,158 kg); and Rhode Island, 887,922 lb (402,755 kg); based on the initial quotas published in the 2017 Summer Flounder, Scup, and Black Sea Bass Specifications and subsequent transfers.

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