Federal Register Vol. 82, No.200,

The substance of these special conditions, as applied to the installation of crew-rest modules in the upper and lower lobes of the airplane, has been published in the Federal Register for public comment in several prior instances. In the past decade, comments were received in 2013 and 2014, but did not affect the substance of these special conditions. Also, in 2015, the FAA approved an exemption for a crew-rest module in a configuration very similar to this proposal. That exemption received no public comment. Therefore, the FAA finds it unnecessary to delay the effective date and that good cause exists for making these special conditions effective upon publication in the Federal Register.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On September 28, 2016, TTF Aerospace Inc. applied for a supplemental type certificate for the installation of a crew-rest compartment on the main deck of Boeing Model 767-300F series airplanes. The Boeing Model 767-300F series airplane is a transport-category, wide-body freighter airplane with a maximum takeoff weight of approximately 412,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, TTF Aerospace Inc. must show that the Boeing Model 767-300F series airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A1NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 767-300F series airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate, to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 767-300F series airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 767-300F series airplane, as modified by TTF Aerospace Inc., will incorporate the following novel or unusual design feature:

A crew-rest compartment installed in a Class E cargo compartment on the airplane main deck.

The crew-rest compartment will be located in what is currently the Class E main-deck cargo compartment of Boeing Model 767-300F series airplanes. It will be designed as a one-piece, self-contained unit for installation in the forward portion of the cargo compartment. The crew-rest compartment will be attached to the existing cargo-restraint system, and will interface with the left-hand wall of the cargo compartment with a seal that will surround the door that currently provides passage to and from the cargo compartment. Crew-rest compartment occupancy will be limited to a maximum of four occupants.

The crew-rest compartment will contain approved seats or berths, able to withstand the maximum flight loads when occupied, for each occupant permitted in the crew-rest compartment, and it will only be occupied in flight, i.e., not during taxi, takeoff or landing. A smoke-detection system, manual firefighting system, oxygen supply, and occupant amenities will be provided in the crew-rest compartment. The door will provide passage to and from the crew-rest compartment.

The FAA considers crew-rest compartment smoke- or fire-detection and fire-suppression systems (including airflow management features, which prevent hazardous quantities of smoke or fire-extinguishing agent from entering any other compartment occupied by crewmembers or passengers) complex in terms of paragraph 6d of Advisory Circular (AC) 25.1309-1A, “System Design and Analysis.” In addition, the FAA considers failure of the crew-rest compartment fire-protection system (i.e., smoke- or fire-detection and fire-suppression systems), in conjunction with a crew-rest compartment fire, to be a catastrophic event. Based on the “Depth of Analysis Flowchart” shown in Figure 2 of AC 25.1309-1A, the depth of analysis should include both qualitative and quantitative assessments (reference paragraphs 8d, 9, and 10 of AC 25.1309-1A). In addition, it should be noted that flammable fluids, and other dangerous cargo are prohibited from the crew-rest compartment.

The requirements in these special conditions are intended to enable crewmembers quick entry to the crew-rest compartment to locate a fire source, and also inherently place limits on the size of the crew-rest area, as well as the amount of baggage that may be stored inside the crew-rest compartment. Baggage in the crew-rest compartment must be limited to the stowage of crew personal luggage, and the compartment must not be used for the stowage of cargo or supernumerary baggage. The design of a system that includes cargo or supernumerary baggage would require additional requirements to ensure safe operation.

The addition of galley equipment, or a kitchenette incorporating a heat source (e.g., cook tops, microwaves, coffee pots, etc.) other than a conventional lavatory or kitchenette water heater, within the crew-rest compartment, would also require additional special conditions, and is prohibited until such conditions are approved. A water heater is acceptable without the need for additional special conditions.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Boeing Model 767-300F series airplane. Should TTF Aerospace Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A1NM to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of this feature on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 767-300F series airplanes modified by TTF Aerospace Inc. Special conditions 1a, 2b, 2c, and the operating procedures, warnings, alarms and alerts listed below must be added to the limitations section of the airplane flight manual.

(1) Occupancy of the crew-rest compartment is limited to the total number of installed sleeping berths and seats in the compartment. Each occupant permitted in the crew-rest compartment must be provided an approved seat or berth able to withstand the maximum flight loads when occupied. The maximum occupancy is four in the crew-rest compartment, accounting for two sleeping berths and two seats.

(a) An appropriate placard must be displayed in a conspicuous place at each entrance to the crew-rest compartment to indicate:

(i) The maximum number of occupants allowed;

(ii) That occupancy is restricted to crewmembers who are trained in evacuation procedures for the crew-rest compartment;

(iii) That occupancy is prohibited during taxi, takeoff, and landing;

(iv) That smoking is prohibited in the crew-rest compartment;

(v) That hazardous quantities of flammable fluids, or other dangerous cargo are prohibited from the crew-rest compartment;

(vi) That stowage in the crew-rest compartment must be limited to emergency equipment, airplane-supplied equipment (e.g., bedding), and crew personal luggage; cargo and supernumerary baggage is not allowed.

(b) At least one ashtray must be located conspicuously on or near the entry side of any entrance to the crew-rest compartment.

(c) If access to the remainder of the Class E cargo compartment is required from the crew-rest compartment, doors must be designed to be easily opened from both within and outside of the crew-rest compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time.

(d) For all doors installed in the evacuation routes, they must be designed such that they do not allow anyone to be trapped inside the crew-rest compartment. If a locking mechanism is installed on an evacuation-route door, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening the door from the inside of the crew-rest compartment at any time.

(2) An emergency-evacuation route must be available for occupants of the crew-rest compartment to rapidly evacuate to the flight deck/supernumerary area. The crew-rest compartment access must be able to be closed from the flight deck/supernumerary area after evacuation. In addition—

(a) The route must be designed to minimize the possibility of blockage that might result from fire, mechanical or structural failure, or persons standing on top of or against the escape route. The use of evacuation routes must not be dependent on any powered device. If an evacuation route has low headroom, provisions must be made to prevent or protect crew-rest compartment occupants from head injury.

(b) Emergency-evacuation procedures, including the emergency evacuation of an incapacitated occupant from the crew-rest compartment, must be established. All of these procedures must be transmitted to the operators for incorporation into their training programs and appropriate operational manuals.

(c) The airplane flight manual, or other suitable means, must include a limitation requiring that crewmembers be trained in the use of evacuation routes.

(3) A means must be provided for the evacuation of an incapacitated person (representative of a 95th percentile male) from the crew-rest compartment to the supernumerary compartment. The evacuation must be demonstrated for all evacuation routes.

(4) The following signs and placards must be provided in the crew-rest compartment:

(a) At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i) at Amendment 25-58, except that a sign with reduced background area of no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color (e.g., white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters would also be acceptable;

(b) An appropriate placard located near each exit defining the location and the operating instructions for each evacuation route;

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions; and

(d) The exit handles and evacuation-path operating-instruction placards must be illuminated to at least 160 micro lamberts under emergency lighting conditions.

(5) In the event of failure of the airplane's main power system, or of the normal crew-rest compartment lighting system, emergency illumination must automatically be provided for the crew-rest compartment. In addition—

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the crew-rest compartment to evacuate to the flight deck/supernumerary area by means of each evacuation route.

(d) The illumination level must be sufficient, with the privacy curtains in the closed position, for each occupant of the crew-rest compartment to locate an oxygen mask.

(6) A means must be provided for two-way voice communications between crewmembers on the flight deck and occupants of the crew-rest compartment.

(7) A means must be provided for manual activation of an aural emergency-alarm system, audible during normal and emergency conditions, to enable occupants on the flight deck to alert occupants of the crew-rest compartment of an emergency situation. Use of a public address or crew interphone system is acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must maintain power in-flight for at least ten minutes after the shutdown or failure of all engines and auxiliary power units (APUs), or the disconnection or failure of all power sources dependent on their continued operation of the engines and APUs.

(8) A readily detectable means must be provided, for seated or standing occupants of the crew-rest compartment, that indicates when seatbelts should be fastened. In the absence of seats, at least one means must be provided to accommodate anticipated turbulence (e.g., sufficient handholds). Seatbelt-type restraints must be provided for berths, and must be compatible with occupant sleeping attitude during cruise conditions. A placard must be located on each berth, and require that seatbelts be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on a berth occupant's specific head location, a placard must identify the head location.

(9) In lieu of the requirements specified in § 25.1439(a) at Amendment 25-38, that pertain to isolated compartments, and to provide a level of safety equivalent to that which is provided to occupants of a small, isolated galley, the following equipment must be provided in the crew-rest compartment:

(a) At least one approved hand-held fire extinguisher, appropriate for the kinds of fires likely to occur;

(b) Two protective-breathing equipment (PBE) devices, approved to Technical Standard Order C116A or equivalent, suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater; and

(c) One flashlight.

(10) A smoke- or fire-detection system (or systems) must be provided that monitors each occupiable area within the crew-rest compartment, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(a) A visual indication to the flight deck within one minute after the start of a fire;

(b) An aural warning in the crew-rest compartment; and

(c) A warning in the main supernumerary area. This warning must be readily detectable by a supernumerary.

(11) The crew-rest compartment must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the firefighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

(12) A means must be provided to exclude hazardous quantities of smoke or extinguishing agent, originating in the crew-rest compartment, from entering any other occupiable compartment. A means must also be provided to exclude hazardous quantities of smoke or extinguishing agent originating in the Class E cargo compartment from entering the crew-rest compartment. This means must include the time periods during the evacuation of the crew-rest compartment and, if applicable, when accessing the crew-rest compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or supernumeraries, when the access to the crew-rest compartment is opened during an emergency evacuation, must dissipate within five minutes after the access to the crew-rest compartment is closed. Hazardous quantities of smoke may not enter any other compartment occupied by supernumeraries or crewmembers during subsequent access to manually fight a fire in the crew-rest compartment (the amount of smoke entrained by a firefighter exiting the crew-rest compartment through the access is not considered hazardous). During the 1-minute smoke detection time, penetration of a small quantity of smoke from the crew-rest compartment, into an occupied area, is acceptable. Flight tests must be conducted to show compliance with this requirement. If a built-in fire-extinguishing system is used in lieu of manual firefighting, then the fire-extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by supernumeraries or crewmembers. The system must have adequate capacity to suppress any fire occurring in the crew-rest compartment, considering the fire threat, volume of the compartment, and the ventilation rate.

(13) In lieu of providing a supplemental oxygen system in accordance with § 25.1447(c)(1), a portable oxygen unit, meeting the requirements of special condition no. 14, must be immediately available for occupants of each seat and berth in the crew-rest compartment. An aural and visual warning must be provided to warn the occupants of the crew-rest compartment to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push-button in the crew-rest compartment is pressed for reset. Procedures for decompression events must be established for crew-rest compartment occupants. These procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals.

(14) The portable oxygen unit must meet the performance requirements of either § 25.1443(a) or § 25.1443(b), or the equipment must be shown to protect the occupant from hypoxia at an activity level required to return to his or her seat following a rapid decompression to 25,000 feet cabin altitude. In addition, the portable oxygen equipment must:

(a) Meet § 25.1439(b)(1), (2), and (4), and

(b) be designed to prevent any inward leakage to the inside of the mask, and

(c) prevent any outward leakage causing significant increase in the oxygen content of the local atmosphere, and

(d) be sized adequately for continuous and uninterrupted use during worst-case flight duration following decompression, or must be of sufficient duration to allow the occupant to return to their seat, where additional oxygen is readily accessible for the remainder of the decompression event.

(15) If the airplane contains a destination area, such as a crewmember changing area, a portable oxygen unit, meeting the requirements of special condition no. 14, must be readily available for each occupant who may reasonably be expected to be in the destination area.

(a) An aural and visual warning must be provided to alert the occupants of the crew-rest compartment to don oxygen masks in the event of decompression or fire in the Class E cargo compartment, or in cases in which a decompression and subsequent climb are required. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the crew-rest compartment is pressed for reset.

(b) Procedures for decompression events must be established for crew-rest compartment occupants. These procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals. These procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals. In addition, a decompression panel must be incorporated into the crew-rest compartment construction.

(16) The following requirements apply to crew-rest compartments that are divided into sections by the installation of curtains or partitions:

(a) To accommodate sleeping occupants, an aural alert must be available that can be heard in each section of the crew-rest compartment. A visual indicator that occupants must don an oxygen mask is required in each section where seats or berths are installed. A minimum of one portable oxygen unit, meeting the requirements of special condition no. 14, is required for each seat or berth.

(b) A placard is required, adjacent each curtain that visually divides or separates, for privacy purposes, the crew-rest compartment into sections. The placard must require that the curtains remain open when the sections they create are unoccupied.

(c) For each crew-rest compartment section created by the installation of a curtain, the following requirements must be met with the curtain open or closed:

(i) Emergency illumination (special condition no. 5);

(ii) Emergency alarm system (special condition no. 7);

(iii) Fasten-seatbelt signal, or return-to-seat signal, as applicable (special condition no. 8); and

(iv) A smoke- or fire-detection system (special condition no. 10).

(d) Compartments visually divided, to the extent that evacuation could be affected, must have exit signs that direct occupants to the primary exit. The exit signs must be provided in each separate section of the crew-rest compartment, and must meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58. An exit sign with reduced background area, as described in special condition no. 4(a), may be used to meet this requirement.

(e) For sections within a crew-rest compartment that are created by the installation of a partition with a door separating the sections, the following requirements must be met with the door open or closed:

(i) It must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment. Removal of an incapacitated occupant from within this area must be considered. A secondary evacuation route from a small room, such as a changing area or lavatory designed for only one occupant for short duration, is not required. However, removal of an incapacitated occupant from within this area must be considered.

(ii) Each section must contain exit signs that meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58, directing occupants to the primary exit. An exit sign with reduced background area, as described in special condition no. 4(a), may be used to meet this requirement.

(iii) Special condition nos. 5 (emergency illumination), 7 (emergency alarm system), 8 (fasten-seatbelt signal, or return-to-seat signal, as applicable), and 10 (smoke- or fire-detection system) must be met with the door open or closed.

(iv) Special condition nos. 6 (two-way voice communication) and 9 (emergency firefighting and protective equipment) must be met independently for each separate section, except for lavatories or other small areas that are not intended to be occupied for extended duration.

(17) Where a waste-disposal receptacle is installed, it must be equipped with a built-in fire extinguisher designed to discharge automatically upon occurrence of a fire in the receptacle.

(18) Materials, including finishes or decorative surfaces applied to the materials, must comply with the flammability requirements of § 25.853 as amended by Amendment 25-116 or later. Seat cushions and mattresses must comply with the flammability requirements of § 25.853(c) as amended by Amendment 25-116 or later, and the test requirements of part 25, appendix F, part II, or other equivalent methods.

(19) When a crew-rest compartment is installed or enclosed as a removable module in part of a cargo compartment, or is located directly adjacent to a cargo compartment without an intervening cargo compartment wall, the following applies:

(a) Any wall of the module (container) forming part of the boundary of the reduced cargo compartment, subject to direct flame impingement from a fire in the cargo compartment and including any interface item between the module (container) and the airplane structure or systems, must meet the applicable requirements of § 25.855 at Amendment 25-60.

(b) Means must be provided so that the fire-protection level of the cargo compartment meets the applicable requirements of § 25.855 at Amendment 25-60, § 25.857 at Amendment 25-60, and § 25.858 at Amendment 25-54 when the module (container) is not installed.

(c) Use of an emergency-evacuation route must not require occupants of the crew-rest compartment to enter the cargo compartment as a means by which to return to the flight deck/supernumerary area.

(d) The aural warning in special condition no. 7 must sound in the crew-rest compartment in the event of a fire in the cargo compartment.

(20) All enclosed stowage compartments within the crew-rest compartment that are not limited to stowage of emergency equipment or airplane-supplied equipment (e.g., bedding) must meet the design criteria provided in the table below. As indicated in the table, these special conditions do not address enclosed stowage compartments greater than 200 ft3 in interior volume. The in-flight accessibility of very large, enclosed stowage compartments, and the subsequent impact on crewmembers' ability to effectively reach any part of the compartment with the contents of a hand-held fire extinguisher, requires additional fire-protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments.

On August 22, 2016, the Federal Register published a document designated as Docket No. FAA-2015-6359, Final Special Conditions No. 25-633-SC (81 FR 56474). The document issued special conditions pertaining to system security to protect against unauthorized access to digital systems architecture composed of several connected data networks that will have the capability to allow connectivity of the passenger-service computer systems to the airplane critical systems and data networks. As published, the document contained an error in the title of the special conditions document, stating “Authorized” where “Unauthorized” is correct.

In the final special conditions document (FR Doc. 2016-19994), published on August 22, 2016 (81 FR 56474), make the following correction.

On page 56474, first column, the special conditions title is corrected to read:

Special Conditions: Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Airplanes; Airplane Electronic-System Security Protection from Unauthorized Internal Access

Pursuant to section 4s(e) of the CEA,1 the Commission is required to promulgate margin requirements for uncleared swaps applicable to each SD and MSP for which there is no Prudential Regulator (collectively, “Covered Swap Entities” or “CSEs”).2 The Commission published final margin requirements for such CSEs in January 2016 (the “Final Margin Rule”).3

Subsequently, on May 31, 2016, the Commission published in the Federal Register its final rule with respect to the cross-border application of the Commission's margin requirements for uncleared swaps applicable to CSEs (hereinafter, the “Cross-Border Margin Rule”).4 The Cross-Border Margin Rule sets out the circumstances under which a CSE is allowed to satisfy the requirements under the Final Margin Rule by complying with comparable foreign margin requirements (“substituted compliance”); offers certain CSEs a limited exclusion from the Commission's margin requirements; and outlines a framework for assessing whether a foreign jurisdiction's margin requirements are comparable in outcome to the Final Margin Rule (“comparability determinations”). The Commission promulgated the Cross-Border Margin Rule after close consultation with the Prudential Regulators and in light of comments from and discussions with market participants and foreign regulators.5

On November 22, 2016, the EC (the “applicant”) submitted a request that the Commission determine that laws and regulations applicable in the EU provide a sufficient basis for an affirmative finding of comparability with respect to the Final Margin Rule.6 The Commission's analysis and comparability determination for the EU regarding the Final Margin Rule is detailed below.

The regulatory objective of the Final Margin Rule is to further the congressional mandate to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared.7 As the Commission has previously stated, the primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can utilize by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense not only in protecting the CSE but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.8

However, the global nature of the swap market, coupled with the interconnectedness of market participants, also necessitate that the Commission recognize the supervisory interests of foreign regulatory authorities and consider the impact of its choices on market efficiency and competition, which the Commission believes are vital to a well-functioning global swap market.9 Foreign jurisdictions are at various stages of implementing margin reforms. To the extent that other jurisdictions adopt requirements with different coverage or timelines, the Commission's margin requirements may lead to competitive burdens for U.S. entities and deter non-U.S. persons from transacting with U.S. CSEs and their affiliates overseas.

To address these concerns, the Cross-Border Margin Rule provides that, subject to certain findings and conditions, a CSE is permitted to satisfy the requirements of the Final Margin Rule by complying with the margin requirements in the relevant foreign jurisdiction. This substituted compliance regime is intended to address the concerns discussed above without compromising the congressional mandate to protect the safety and soundness of CSEs and the stability of the U.S. financial system. Substituted compliance helps preserve the benefits of an integrated, global swap market by reducing the degree to which market participants will be subject to multiple sets of regulations. Further, substituted compliance builds on international efforts to develop a global margin framework.10

Pursuant to the Cross-Border Margin Rule, any CSE that is eligible for substituted compliance under § 23.160 11 and any foreign regulatory authority that has direct supervisory authority over one or more CSEs and that is responsible for administering the relevant foreign jurisdiction's margin requirements may apply to the Commission for a comparability determination.12

The Cross-Border Margin Rule requires that applicants for a comparability determination provide copies of the relevant foreign jurisdiction's margin requirements 13 and descriptions of their objectives,14 how they differ from the BCBS/IOSCO Framework,15 and how they address the elements of the Commission's margin requirements.16 The applicant must identify the specific legal and regulatory provisions of the foreign jurisdiction's margin requirements that correspond to each element and, if necessary, whether the relevant foreign jurisdiction's margin requirements do not address a particular element.17

The Cross-Border Margin Rule identifies certain key factors that the Commission will consider in making a comparability determination. Specifically, the Commission will consider the scope and objectives of the relevant foreign jurisdiction's margin requirements; 18 whether the relevant foreign jurisdiction's margin requirements achieve comparable outcomes to the Commission's corresponding margin requirements; 19 and the ability of the relevant regulatory authority or authorities to supervise and enforce compliance with the relevant foreign jurisdiction's margin requirements.20

This process reflects an outcomes-based approach to assessing the comparability of a foreign jurisdiction's margin requirements. Instead of demanding strict uniformity with the Commission's margin requirements, the Commission evaluates the objectives and outcomes of the foreign margin requirements in light of foreign regulator(s)' supervisory and enforcement authority. Recognizing that jurisdictions may adopt different approaches to achieving the same outcome, the Commission will focus on whether the foreign jurisdiction's margin requirements are comparable to the Commission's in purpose and effect, not whether they are comparable in every aspect or contain identical elements.

In keeping with the Commission's commitment to international coordination on margin requirements for uncleared derivatives, the Commission believes that the standards it has established are fully consistent with the BCBS/IOSCO Framework.21 Accordingly, where relevant to the Commission's comparability analysis, the BCBS/IOSCO Framework is discussed to explain certain internationally agreed upon concepts.

The Cross-Border Margin Rule provided a detailed discussion regarding the facts and circumstances under which substituted compliance for the requirements under the Final Margin Rule would be available and such discussion is not repeated here. CSEs seeking to rely on substituted compliance based on the comparability determinations contained herein are responsible for determining whether substituted compliance is available under the Cross-Border Margin Rule with respect to the CSE's particular status and circumstances.

The Cross-Border Margin Rule provides that the Commission may impose terms and conditions it deems appropriate in issuing a comparability determination.22 Specific terms and conditions with respect to margin requirements are discussed in the Commission's determinations detailed below.

As a general condition to all determinations, however, the Commission requires notification of any material changes to information submitted to the Commission by the applicant in support of a comparability finding, including, but not limited to, changes in the relevant foreign jurisdiction's supervisory or regulatory regime. The Commission also expects that the relevant foreign regulator will enter into, or will have entered into, an appropriate memorandum of understanding or similar arrangement with the Commission in connection with a comparability determination.23

Finally, the Commission will generally rely on an applicant's description of the laws and regulations of the foreign jurisdiction in making its comparability determination. The Commission considers an application to be a representation by the applicant that the laws and regulations submitted are finalized,24 that the description of such laws and regulations is accurate and complete, and that, unless otherwise noted, the scope of such laws and regulations encompasses the swaps activities 25 of CSEs 26 in the relevant jurisdictions.27 Further, the Commission requires that an applicant would notify the Commission of any material changes to information submitted in support of a comparability determination (including, but not limited to, changes in the relevant supervisory or regulatory regime) as, depending on the nature of the change, the Commission's comparability determination may no longer be valid.28

As represented to the Commission by the applicant, margin requirements for swap activities in the EU are governed by the Regulatory Technical Standards for Risk-Mitigation Techniques for OTC Derivative Contracts Not Cleared by a Central Counterparty (“RTS”).29 The RTS supplement the requirements of EMIR with a more detailed direction with respect to margin requirements 30 and are directly applicable in all countries that are members of the EU (each country a “Member State”). Article 12 of EMIR further gives Member States the authority to “lay down the rules on penalties” that apply to infringements of the RTS and to take all measures necessary to ensure that those rules are implemented.31

The following section describes the regulatory objectives of the Commission's requirements with respect to margin for uncleared swaps imposed by the CEA and the Final Margin Rule and a description of such requirements. Immediately following a description of the requirement(s) of the Final Margin Rule for which a comparability determination was requested by the applicant, the Commission provides a description of the foreign jurisdiction's comparable laws, regulations, or rules. The Commission then provides a discussion of the comparability of, or differences between, the Final Margin Rule and the foreign jurisdiction's laws, regulations, or rules.

The regulatory objectives of the Final Margin Rule are to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared. The primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can incur by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense, not only in protecting the CSE, but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.32

The applicant states that, in the absence of clearing of OTC derivatives by a CCP, it is essential that counterparties apply robust risk-mitigation techniques to their bilateral relationships to reduce counterparty credit risk and to mitigate the potential systemic risk that could arise. Article 11 of EMIR prescribes risk-mitigation techniques for OTC derivative contracts not cleared by a CCP. The RTS supplement EMIR with regard to regulatory technical standards for risk-mitigation techniques for OTC derivative contracts not cleared by a CCP and take into account the Basel Committee-IOSCO margin framework for non-centrally cleared OTC derivatives and the Basel Committee guidelines for managing settlement risk in foreign exchange transactions.33

The Commission's Final Margin Rule applies only to uncleared swaps. Swaps are defined in section 1a(47) of the CEA 34 and Commission regulations.35 “Uncleared swap” is defined for purposes of the Final Margin Rule in Commission regulation § 23.151 to mean a swap that is not cleared by a registered derivatives clearing organization, or by a clearing organization that the Commission has exempted from registration by rule or order pursuant to section 5b(h) of the Act.36

The EU's margin rules apply to OTC derivatives not cleared by a CCP (“non-centrally cleared OTC derivative”).37 “Derivative” for purposes of the EU margin rules is defined in Article 2(5) of EMIR as a financial instrument as set out in points (4) to (10) of Section C of Annex I to MIFID 38 as implemented by Articles 38 and 39 of EU Regulation No. 1287/2006.39 Initial margin need not be collected for physically-settled foreign exchange forwards, physically-settled foreign exchange swaps, or cross-currency swaps.40 Regarding covered bonds for hedging purposes, no variation margin needs to be posted by a covered bond issuer or covered pool but must be collected from a counterparty in cash and returned to a counterparty when due, and no initial margin required.41

An OTC derivative is a derivative which is not executed on a regulated market or on a third-country market considered as equivalent to a regulated market.42 While it is beyond the scope of this comparability determination to definitively map any differences between the definitions of “swap” and “uncleared swap” under the CEA and Commission regulations and the EU's definitions of “OTC derivative” and “non-centrally cleared OTC derivative,” the Commission believes that such definitions largely cover the same products and instruments.

However, because the definitions are not identical, the Commission recognizes the possibility that a CSE may enter into a transaction that is an uncleared swap as defined in the CEA and Commission regulations, but that is not a non-centrally cleared OTC derivative as defined under the laws of the EU. In such cases, the Final Margin Rule would apply to the transaction but the EU's margin rules would not apply and thus, substituted compliance would not be available. The CSE could not choose to comply with the EU's margin rules in place of the Final Margin Rule.

Likewise, if a transaction is a non-centrally cleared OTC derivative as defined under the laws of the EU but not an uncleared swap subject to the Final Margin Rule, a CSE could not choose to comply with the Final Margin Rule pursuant to this determination, unless the EU determines that it will permit the EU entity to follow the Commission's margin requirements. CSEs are solely responsible for determining whether a particular transaction is both an uncleared swap and a non-centrally cleared OTC derivative before relying on substituted compliance under the comparability determinations set forth below.

As stated previously, the Commission's Final Margin Rule and Cross-Border Margin Rule apply only to CSEs, i.e., SDs and MSPs registered with the Commission for which there is not a Prudential Regulator.43 Thus, only such CSEs may rely on the determinations herein for substituted compliance, while CSEs for which there is a Prudential Regulator must look to the determinations of the Prudential Regulators.

CSEs are not required to collectand/or post margin with every uncleared swap counterparty. Under the Final Margin Rule, the initial margin obligations of CSEs apply only to uncleared swaps with counterparties that meet the definition of “covered counterparty” in § 23.151.44 Such definition provides that a “covered counterparty” is a counterparty that is a financial end user 45 with material swaps exposure 46 or a swap entity 47 that enters into a swap with a CSE. The variation margin obligations of CSEs under the Final Margin Rule apply more broadly. Such obligations apply to counterparties that are swap entities and all financial end users, regardless of their level of material swaps exposure.48

As represented by the applicant, the EU's margin rules apply to all financial counterparties, which include investment firms, credit institutions, insurance companies, and alternative investment funds that are authorized or registered in accordance with various EU directives (“FC”).49 CCPs not authorized as credit institutions are outside the scope of Article 11 of EMIR and CCPs authorized as credit institutions are exempt from the RTS.50 The EU's margin rules also apply to non-financial counterparties (any EU entity other than an FC or a CCP 51) (“NFC”) that are above a certain clearing threshold (“NFC+”).52 Under the EU rules, no margin is required for non-centrally cleared OTC derivatives with NFCs that fall below the clearing threshold (“NFC-”) or non-EU entities that would be NFC-s if established in the EU.53 However, under the EU margin rules, counterparties must take into account the different risk profiles of NFC-s when entering into non-centrally cleared OTC derivatives with such counterparties and determine whether or not the level of counterparty credit risk posed by those NFC-s needs to be mitigated through the exchange of collateral.54 Like the Final Margin Rule, the EU margin rules include a threshold under which initial margin requirements will not apply, while the variation margin requirements apply more broadly.55

Given the definitional differences and differences in activity thresholds with respect to the scope of application of the Final Margin Rule and the EU's margin requirements, the Commission notes the possibility that the Final Margin Rule and the EU's margin rules may not apply to every uncleared swap that a CSE may enter into with a EU counterparty. For example, it appears possible that a financial end user with “material swaps exposure” would meet the definition of “covered counterparty” under the Final Margin Rule (and thus the initial and variation margin requirements) while at the same time fall under the EU's clearing threshold (an NFC-) and not be subject the EU margin requirements. It may also be possible that the Final Margin Rule's definition of “financial end user” could capture an entity that is an NFC under the EU's margin regime.

With these differences in scope in mind, the Commission reiterates that no CSE may rely on substituted compliance unless it and its transaction are subject to both the Final Margin Rule and the EU's margin rules; a CSE may not voluntarily comply with the EU's margin rules where such law does not otherwise apply. Likewise, a CSE that is not seeking to rely on substituted compliance should understand that the EU's margin rules may apply to its counterparty irrespective of the CSE's decision to comply with the Final Margin Rule.

The BCBS/IOSCO Framework recognizes that the treatment of inter-affiliate derivative transactions will vary between jurisdictions. Thus, the BCBS/IOSCO Framework does not set standards with respect to the treatment of inter-affiliate transactions. Rather, it recommends that regulators in each jurisdiction review their own legal frameworks and market conditions and put in place margin requirements applicable to inter-affiliate transactions as appropriate.56

The Commission determined through its Final Margin Rule to provide rules for swaps between “margin affiliates.” In defining “margin affiliate,” those rules provide that a company is a margin affiliate of another company if: (1) Either company consolidates the other on a financial statement prepared in accordance with U.S. Generally Accepted Accounting Principles, the International Financial Reporting Standards, or other similar standards; (2) both companies are consolidated with a third company on a financial statement prepared in accordance with such principles or standards; or (3) for a company that is not subject to such principles or standards, if consolidation as described in (1) or (2) would have occurred if such principles or standards had applied.57

With respect to swaps between margin affiliates, the Final Margin Rule, with one exception explained below, provides that a CSE is not required to collect initial margin 58 from a margin affiliate provided that the CSE meets the following conditions: (i) The swaps are subject to a centralized risk management program that is reasonably designed to monitor and to manage the risks associated with the inter-affiliate swaps; and (ii) the CSE exchanges variation margin with the margin affiliate.59

In an exception to the foregoing general rule, the Final Margin Rule does require CSEs to collect initial margin from non-U.S. affiliates that are financial end users that are not subject to initial margin collection requirements on their own outward-facing swaps with financial end users that are not comparable in outcome to the Final Margin Rule.60 This provision is an important anti-evasion measure. It is designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties. For example, suppose that an unregistered non-U.S. affiliate of a CSE enters into a swap with a financial end user and does not collect initial margin. Suppose further that the affiliate then enters into a swap with the CSE. Effectively, the risk of the swap with the third party would have been passed to the CSE without any initial margin. The rule would require this affiliate to post initial margin with the CSE in such cases. The rule would further require that the CSE collect initial margin even if the affiliate routed the trade through one or more other affiliates.61

The Commission has stated that its inter-affiliate initial margin requirement is consistent with its goal of harmonizing its margin rules as much as possible with the BCBS/IOSCO Framework. Such Framework, for example, states that the exchange of initial and variation margin by affiliated parties “is not customary” and that initial margin in particular “would likely create additional liquidity demands.” 62 With an understanding that many authorities, such as those in Europe and Japan, are not expected to require initial margin for inter-affiliate swaps, the Commission recognized that requiring the posting and collection of initial margin for inter-affiliate swaps generally would be likely to put CSEs at a competitive disadvantage to firms in other jurisdictions.

The Final Margin Rule however, does require CSEs to exchange variation margin with affiliates that are SDs, MSPs, or financial end users (as is also required under the Prudential Regulators' rules).63 The Commission stated that marking open positions to market each day and requiring the posting or collection of variation margin reduces the risks of inter-affiliate swaps.

Under Article 11 of EMIR, the EU's margin requirements generally apply to intragroup transactions as defined in Article 3 of EMIR. Such “intragroup transactions” are defined differently for intragroup transactions in relation to an FC (“FC Intragroup Transactions”) 64 and intragroup transactions in relation to an NFC (“NFC Intragroup Transactions” and, together with FC Intragroup Transactions, “Intragroup Transactions”).65 What the EU defines as Intragroup Transactions is generally in keeping with the Commission's definition of “margin affiliate” for purposes of the Final Margin Rule, discussed above.

For Intragroup Transactions between counterparties established in the same Member State, no margin requirements will apply, but only as long as there is no legal impediment to the prompt transfer of own funds or repayment of liabilities between counterparties.66 A legal impediment to the prompt transfer of own funds and repayment of liabilities shall be deemed to exist where there are actual or foreseen restrictions of a legal nature.67

For Intragroup Transactions between counterparties established in different Member States, the EU margin rules generally provide, depending on the nature and location of the counterparties, that such Intragroup Transactions may be excluded from the EU margin requirements but only if, in addition to there being no current or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties, the counterparties (i) have risk management procedures that are sound, robust, and consistent with the level of complexity of the derivative transaction, and (ii) in keeping with the procedures established under the RTS,68 the counterparties have notified the relevant competent authority 69 or authorities of the intention to use the exemption and the authority or authorities have reached a positive decision to allow the exemption.70 The counterparties to an exempted Intragroup Transaction must publicly disclose information about the exemption.71

Where one of the two counterparties in the group is domiciled in a third-country for which an equivalence determination under Article 13(2) of EMIR has not yet been provided, the group has to exchange variation and appropriately segregated initial margins for all the Intragroup Transactions with the subsidiaries in those third-countries.72 However, the requirements are delayed for three years in these cases.73 This is to allow enough time for completion of the process to produce the equivalence determinations, while not requiring an inefficient allocation of resources to the groups with subsidiaries domiciled in third-countries.74 Where an equivalence decision has been made, counterparties may then apply for an exemption pursuant to the timing and process established under EMIR and the RTS.75

Having compared the outcomes of the EU's margin requirements applicable to Intragroup Transactions to the outcomes of the Commission's corresponding margin requirements applicable to inter-affiliate swaps, the Commission finds that the treatment of inter-affiliate transactions under the Final Margin Rule and under the EU's margin requirements are comparable in outcome.

A CSE entering into a transaction with a consolidated affiliate under the Final Margin Rule would be required to exchange variation margin in accordance with §§ 23.151 through 23.161, and in certain circumstances, collect initial margin in accordance with § 23.159(c). The Commission continues to deem this provision an important anti-evasion measure, designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties.76 In adopting its Final Margin Rule, the Commission recognized that, in absence of proper anti-evasion measures, a CSE could import risk from another jurisdiction, one with potentially less stringent margin protections, through inter-affiliate trades.77 In analyzing the EU's margin rules, the Commission specifically notes that the EU margin rules will apply to inter-affiliate trades involving an affiliate that is established in a third-country (non-EU) jurisdiction, unless specifically excluded. Any exclusion from the EU margin rules is subject to an application process, which would require a finding that the relevant non-EU jurisdiction's margin requirements are equivalent. This comparability requirement provides protection to the consolidated entity, as the consolidated entity would not be able to import risk from third country jurisdictions that are not equivalent, without posting and collecting initial margin and exchanging variation margin. Therefore, the Commission believes that the EU's review process for finding comparability in third-country jurisdictions addresses the Commission's anti-evasion concerns relating to inter-affiliate transactions.

In addition, where a CSE and its inter-affiliate counterparty are subject to the Commission's margin requirements and the EU's margin requirements, all of the EU's margin requirements would apply, including the requirement to exchange variation margin, absent meeting the specific conditions detailed above. Other than where the two counterparties are established in the same Member State, those specific conditions involve a process of applying to the relevant Member State competent authority(ies) 78 and receiving a positive determination from either or both competent authorities 79 or upon notification to the relevant Member State competent authority(ies) and agreement of those competent authorities.80 All exemptions are also predicated on the absence of any current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties 81 and on the existence of adequately sound and robust risk management practices that are consistent with the level of complexity of the derivatives transaction.82

As an overview, the methodologies for calculating initial and variation margin as agreed under the BCBS/IOSCO Framework state that the margin collected from a counterparty should (i) be consistent across entities covered by the requirements and reflect the potential future exposure (initial margin) and current exposure (variation margin) associated with the particular portfolio of non-centrally cleared derivatives, and (ii) ensure that all counterparty risk exposures are covered fully with a high degree of confidence.

With respect to the calculation of initial margin, as a minimum the BCBS/IOSCO Framework generally provides that:

• Initial margin requirements will not apply to counterparties that have less than EUR 8 billion of gross notional in outstanding derivatives.

• Initial margin may be subject to a EUR 50 million threshold applicable to a consolidated group of affiliated counterparties.

• All margin transfers between parties may be subject to a de-minimis minimum transfer amount not to exceed EUR 500,000.

• The potential future exposure of a non-centrally cleared derivative should reflect an extreme but plausible estimate of an increase in the value of the instrument that is consistent with a one-tailed 99% confidence interval over a 10-day horizon, based on historical data that incorporates a period of significant financial stress.

• The required amount of initial margin may be calculated by reference to either (i) a quantitative portfolio margin model or (ii) a standardized margin schedule.

• When initial margin is calculated by reference to an initial margin model, the period of financial stress used for calibration should be identified and applied separately for each broad asset class for which portfolio margining is allowed.

• Models may be either internally developed or sourced from the counterparties or third-party vendors but in all such cases, models must be approved by the appropriate supervisory authority.

• Quantitative initial margin models must be subject to an internal governance process that continuously assesses the value of the model's risk assessments, tests the model's assessments against realized data and experience, and validates the applicability of the model to the derivatives for which it is being used.

• An initial margin model may consider all of the derivatives that are approved for model use that are subject to a single legally enforceable netting agreement.

• Initial margin models may account for diversification, hedging, and risk offsets within well-defined asset classes such as currency/rates, equity, credit, or commodities, but not across such asset classes and provided these instruments are covered by the same legally enforceable netting agreement and are approved by the relevant supervisory authority.

• The total initial margin requirement for a portfolio consisting of multiple asset classes would be the sum of the initial margin amounts calculated for each asset class separately.

• Derivatives for which a firm faces zero counterparty risk require no initial margin to be collected and may be excluded from the initial margin calculation.

• Where a standardized initial margin schedule is appropriate, it should be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under the BCBS/IOSCO Framework and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives in a legally enforceable netting set. The BCBS/IOSCO Framework provides the following standardized margin rates: 83

• For a regulated entity that is already using a schedule-based margin to satisfy requirements under its required capital regime, the appropriate supervisory authority may permit the use of the same schedule for initial margin purposes, provided that it is at least as conservative.

• The choice between model- and schedule-based initial margin calculations should be made consistently over time for all transactions within the same well defined asset class.

• Initial margin should be collected at the outset of a transaction, and collected thereafter on a routine and consistent basis upon changes in measured potential future exposure, such as when trades are added to or subtracted from the portfolio.

• In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of initial margin in a timely fashion.

With respect to the calculation of variation margin, as a minimum the BCBS/IOSCO Framework generally provides that:

• The full amount necessary to fully collateralize the mark-to-market exposure of the non-centrally cleared derivatives must be exchanged.

• Variation margin should be calculated and exchanged for derivatives subject to a single, legally enforceable netting agreement with sufficient frequency (e.g., daily).

• In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of variation margin in a timely fashion.

In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of initial margin, the Commission's Final Margin Rule generally provides that:

• Initial margin is intended to address potential future exposure, i.e., in the event of a counterparty default, initial margin protects the non-defaulting party from the loss that may result from a swap or portfolio of swaps, during the period of time needed to close out the swap(s).84

• Potential future exposure is to be an estimate of the one-tailed 99% confidence interval for an increase in the value of the uncleared swap or netting portfolio of uncleared swaps due to an instantaneous price shock that is equivalent to a movement in all material underlying risk factors, including prices, rates, and spreads, over a holding period equal to the shorter of 10 business days or the maturity of the swap or netting portfolio.85

• The required amount of initial margin may be calculated by reference to either (i) a risk-based margin model or (ii) a table-based method.86

• All data used to calibrate the initial margin model shall incorporate a period of significant financial stress for each broad asset class that is appropriate to the uncleared swaps to which the initial margin model is applied.87

• CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.88

• An initial margin model may calculate initial margin for a netting portfolio of uncleared swaps covered by the same eligible master netting agreement.89

• An initial margin model may reflect offsetting exposures, diversification, and other hedging benefits for uncleared swaps that are governed by the same eligible master netting agreement by incorporating empirical correlations within the following broad risk categories, provided the CSE validates and demonstrates the reasonableness of its process for modeling and measuring hedging benefits: Commodity, credit, equity, and foreign exchange or interest rate.90

• Empirical correlations under an eligible master netting agreement may be recognized by the model within each broad risk category, but not across broad risk categories.91

• If the initial margin model does not explicitly reflect offsetting exposures, diversification, and hedging benefits between subsets of uncleared swaps within a broad risk category, the CSE shall calculate an amount of initial margin separately for each subset of uncleared swaps for which such relationships are explicitly recognized by the model and the sum of the initial margin amounts calculated for each subset of uncleared swaps within a broad risk category will be used to determine the aggregate initial margin due from the counterparty for the portfolio of uncleared swaps within the broad risk category.92

• Where a risk-based model is not used, initial margin must be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under § 23.154(c)(i) 93 and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives under the same eligible master netting agreement.94

• A CSE shall not be deemed to have violated its obligation to collect or post initial margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).95

In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of variation margin, the Commission's Final Margin Rule generally provides that:

• Each business day, a CSE must calculate variation margin amounts for itself and for each counterparty that is an SD, MSP, or financial end user. Such variation margin amounts must be equal to the cumulative mark-to-market change in value to the CSE of each uncleared swap, adjusted for any variation margin previously collected or posted with respect to that uncleared swap.96

• Variation margin must be calculated using methods, procedures, rules, and inputs that to the maximum extent practicable rely on recently-executed transactions, valuations provided by independent third parties, or other objective criteria.97

• CSEs may comply with variation margin requirements on an aggregate basis with respect to uncleared swaps that are governed by the same eligible master netting agreement.98

• A CSE shall not be deemed to have violated its obligation to collect or post variation margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).99

In keeping with the BCBS/IOSCO Framework, with respect to the calculation of initial margin, the EU's margin requirements generally provide:

• Initial margin protects counterparties against potential losses which could stem from movements in the market value of the derivatives position occurring between the last exchange of variation margin before the default of a counterparty and the time that the OTC derivatives are replaced or the corresponding risk is hedged.100 It is the collateral collected by a counterparty to cover its current and potential future exposure in the interval between the last collection of margin and the liquidation of positions or hedging of market risk following a default of the other counterparty.101

• The assumed variations in the value of the non-centrally cleared OTC derivative contracts within the netting set for the calculation of initial margins using an initial margin model shall be based on a one-tailed 99% confidence interval over a margin period of risk (“MPOR”) of at least 10 days.102

• Counterparties shall calculate the amount of initial margin to be collected using either a standardized approach or an initial margin model or both.103

• Parameters used in initial margin models shall be calibrated, at least annually, based on historical data from a time period with a minimum duration of three years and a maximum duration of five years.

• The data used for calibrating the parameters of initial margin models shall include the most recent continuous period from the date on which the calibration is performed and at least 25% of those data shall be representative of a period of significant financial stress (stressed data).104

• Where a counterparty uses an initial margin model, that model may be developed by any of, or both, counterparties or by a third party agent.

• Where a counterparty uses an initial margin model developed by a third party agent, the counterparty shall remain responsible for ensuring that that model complies with the EU's margin rules.105

• Initial margin models shall only include non-centrally cleared OTC derivative contracts within the same netting set.106

• Initial margin models may provide for diversification, hedging and risk offsets arising from the risks of the contracts within the same netting set, provided that the diversification, hedging or risk offset is only carried out within the same underlying asset class as referred to in these requirements.

• Diversification, hedging, and risk offsets may only be carried out within the following underlying asset classes: (a) Interest rates, currency and inflation; (b) equity; (c) credit; (d) commodities and gold; (e) other.107

• In the event of a dispute over the amount of initial margin due, counterparties shall provide at least the part of the initial margin amount that is not being disputed within the same business day of the calculation date determined in accordance with Article 9(3).108

In keeping with the BCBS/IOSCO Framework, with respect to the calculation of variation margin, the EU's margin requirements generally provide:

• FCs and NFC+s shall mark-to-market on a daily basis the value of outstanding contracts. Where market conditions prevent marking-to-market, reliable and prudent marking-to-model shall be used.109

• The amount of variation margin to be collected by a counterparty shall be the aggregation of the values calculated for purposes of variation margin of all contracts in the netting set, minus the value of all variation margin previously collected, minus the net value of each contract in the netting set at the point of entry into the contract, and plus the value of all variation margin previously posted.110

• In the event of a dispute over the amount of variation margin due, counterparties shall provide at least the part of the variation margin amount that is not being disputed.111

Based on the foregoing and the representations of the applicant, the Commission has determined that the amounts of initial and variation margin calculated under the methodologies required under the EU's margin rules would be similar to those calculated under the methodologies required under the Final Margin Rule. Specifically, under the Final Margin Rule and the EU's margin rules:

• The definitions of initial and variation margin are similar, including the description of potential future exposure agreed under the BCBS/IOSCO Framework;

• Margin models and/or a standardized margin schedule may be used to calculate initial margin;

• Criteria for historical data to be used in initial margin models is similar;

• Eligibility for netting is similar;

• Correlations may be recognized within broad risk categories, but not across such risk categories;

• The required method of calculating initial margin using standardized margin rates is essentially identical; and

• The proscribed standardized margin rates are essentially identical.

Accordingly, the Commission finds that the methodologies for calculating the amounts of initial and variation margin for non-centrally cleared OTC derivatives under the laws of the EU are comparable in outcome to those of the Final Margin Rule.

Pursuant to the BCBS/IOSCO Framework, initial margin models may be either internally developed or sourced from counterparties or third-party vendors but in all such cases, models must be approved by the appropriate supervisory authority.112

In keeping with the BCBS/IOSCO Framework, the Final Margin Rule generally requires:

• CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.113

• The Commission or a registered futures association will approve models that demonstrate satisfaction of all of the requirements for an initial margin model set forth above in Section IV(E)(1), in addition to the requirements for annual review; 114 control, oversight, and validation mechanisms; 115 documentation; 116 and escalation procedures.117

• CSEs must notify the Commission and the registered futures association in writing 60 days prior to extending the use of an initial margin model to an additional product type; making any change to the model that would result in a material change in the CSE's assessment of initial margin requirements; or making any material change to modeling assumptions.

• The Commission or the registered futures association may rescind its approval, or may impose additional conditions or requirements if the Commission or the registered futures association determines, in its discretion, that a model no longer complies with the requirements for an initial margin model summarized above in Section IV(E)(1).

The EU's margin rules generally require:

• Upon request, counterparties using a non-standardized initial margin model shall provide the competent authorities with any documentation relating to the risk management procedures relating to such model at any time.118

Based on the foregoing and the representations of the applicant, the Commission has determined that the EU margin rules' requirement that an FC/NFC+ make documentation supporting an initial model available to a competent authority at any time is comparable in outcome to, the regulatory approval requirements of the Final Margin Rule. While the Commission recognizes that keeping documents open to regulatory review is not the same as requiring specific pre-approval from a regulator, the EC has represented that competent authorities within the Member States responsible for supervising FCs and, where applicable NFC+s, as part of their ongoing prudential regulation and supervision will enforce applicable legislation and control whether the models adopted by these entities comply with the requirements under the EU margin rules. Furthermore, Article 12 of EMIR grants the competent authorities in each Member State the authority to impose fines in case of infringement of the rules promulgated under EMIR, such as the RTS.119 Such infringement could include an FC's or NFC+'s violations of the provisions under Section 4 of the RTS that establish the general requirements for initial margin models.120

With respect to the timing and manner for collection or posting of initial margin, the Final Margin Rule generally provides that:

• Where a CSE is required to collect initial margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to hold initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires.

• Where a CSE is required to post initial margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires.

• Required initial margin amounts must be posted and collected by CSEs on a gross basis (i.e., amounts to be posted may not be set-off against amounts to be collected from the same counterparty).

With respect to the timing and manner for collection or posting of variation margin, the Final Margin Rule generally provides that:

• Where a CSE is required to collect variation margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to collect the required variation margin amount, if any, each business day as re-calculated each business day until such uncleared swap is terminated or expires.121

• Where a CSE is required to post variation margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post the required variation margin amount, if any, each business day as re-calculated each business day until such uncleared swap is terminated or expires.122

With respect to both initial and variation margin, a CSE shall not be deemed to have violated its obligation to collect or post margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to § 23.504(b)(4).123

With respect to the timing and manner for collection or posting of initial margin, the EU's margin rules generally provide that:

• Counterparties shall calculate initial margin no later than the business day following one of these events: (a) Where a new non-centrally cleared OTC derivative contract is executed or added to the netting set; (b) where an existing non-centrally cleared OTC derivative contract expires or is removed from the netting set; (c) where an existing non-centrally cleared OTC derivative contract triggers a payment or a delivery other than the posting and collecting of margins; (d) where the initial margin is calculated in accordance with the standardized approach and an existing contract is reclassified in terms of the asset category referred to by the RTS as a result of reduced time to maturity; (e) where no calculation has been performed in the preceding 10 business days.124

• The posting counterparty shall provide the initial margin within the same business day of the calculation date.125

• Where two counterparties are located in the same time-zone, the calculation shall be based on the netting set of the previous business day.126

• Where two counterparties are not located in the same time-zone, the calculation shall be based on the transactions in the netting set which are entered into before 16:00 hours of the previous business day of the time-zone where it is first 16:00 hours.127

• In the event of a dispute over the amount of initial margin due, counterparties shall provide at least the part of the initial margin amount that is not being disputed within the same business day of the calculation date.128

With respect to the timing and manner for collection or posting of variation margin, the EU's margin rules generally provide that:

• Counterparties shall calculate variation margin at least on a daily basis.129

• The posting counterparty shall provide the variation margin as follows: (a) Within the same business day of the calculation date; (b) where certain conditions are met,130 within two business days of the calculation date.131

• In the event of a dispute over the amount of variation margin due, counterparties shall provide at least the part of the variation margin amount that is not being disputed.132

Having compared the EU's margin requirements applicable to the timing and manner of collection and payment of initial and variation margin to the Commission's corresponding margin requirements, the Commission finds that the EU's margin requirements are, despite apparent differences in certain respects, comparable in outcome.

Under the Final Margin Rule, where initial margin is required, a CSE must calculate the amount of initial margin each business day. The EU's margin rules only require initial margin to be calculated after certain events, including the addition or removal of a non-centrally cleared OTC derivative from the netting set or at least within 10 days after the last initial margin calculation. While this is different from the Final Margin Rule's requirement that the amount of initial margin be calculated each business day, the EC has explained that the more sophisticated counterparties subject to the EU margin rules actively operate in non-centrally cleared OTC derivatives to the point where the RTS requirement to recalculate whenever there is a change to the netting set will in practice require these types of counterparties to recalculate daily. Because of this, the EC views the 10-day allowance under Article 9(2)(e) of the RTS as a backstop only and one that is likely to be exercised only in the case of a static portfolio. The Commission believes that as a result of these entities still exchanging variation margin, and thereby eliminating current exposure, this difference will be mitigated.

With respect to the timing of collecting/posting margin, the Final Margin Rule requires CSEs to collect/post any required margin amount within one business day of calculation which, under the Final Margin Rule, must occur daily. In contrast, the EU's margin rules allow for a variation margin posting date within two business days of the calculation date (T+2) when certain conditions are met.133 As explained in the Recitals to the RTS, additional time for posting of variation margin is allowed only where compensated by an adjustment to initial margin by an adequate recalculation of MPOR.134 Where initial margin is required, an adequate recalculation of MPOR under the RTS would occur by increasing the MPOR by the number of days in between, and including, the calculation and collection dates or by increasing the initial margin calculated with the standardized approach taking into account a MPOR increased by the number of days in between, and including, the calculation and collection dates.135 Where no initial margin requirements apply, additional time is permitted for posting of variation margin if the posting counterparty has provided, at or before the variation margin calculation date, an advance amount of eligible collateral calculated in the same manner as required for initial margin with an MPOR at least equal to the number of days in between, and including, the calculation and collection dates.136

While the RTS conditions to a delay in the exchange of variation margin do not make the EU's rule in this area the same as the Final Margin Rule, they do serve to mitigate the potential risks, as described above, by increasing the initial margin's MPOR by the corresponding number of days associated with a delay in the exchange of variation margin. Furthermore, although the EU's allowance for a delay of up to 10 days to recalculate initial margin is not the same as the Final Margin Rule's daily recalculation requirement, as detailed above, the EC has represented that, in practice, it expects the most sophisticated counterparties subject to the EU margin rules to recalculate initial margin on a daily basis. Thus, the Commission finds that the requirements of the EU margin rules with respect to the timing and manner for collection or payment of initial and variation margin are comparable in outcome to the Final Margin Rule.

The BCBS/IOSCO Framework provides that initial margin could be subject to a threshold not to exceed EUR 50 million. The threshold is applied at the level of the consolidated group to which the threshold is being extended and is based on all non-centrally cleared derivatives between the two consolidated groups.

Similarly, to alleviate operational burdens associated with the transfer of small amounts of margin, the BCBS/IOSCO Framework provides that all margin transfers between parties may be subject to a de-minimis minimum transfer amount not to exceed EUR 500,000.

In keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts the Final Margin Rule generally provides that:

• CSEs may agree with their counterparties that initial margin may be subject to a threshold of no more than $50 million applicable to a consolidated group of affiliated counterparties.137

• CSEs are not required to collect or to post initial or variation margin with a counterparty until the combined amount of initial margin and variation margin to be collected or posted is greater than $500,000 (i.e., a minimum transfer amount).138

In keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts, the EU's margin requirements generally provide that:

• Counterparties may provide in their risk management procedures that initial margin collected is reduced by an amount up to EUR 50 million where neither counterparty belongs to any group or the counterparties are part of different groups; or EUR 10 million where both counterparties belong to the same group.139

• Counterparties may provide in their risk management procedures that no collateral is collected from a counterparty where the amount due from the last collection of collateral is equal to or lower than the amount agreed by the counterparties. The minimum transfer amount shall not exceed EUR 500,000 or the equivalent amount in another currency.140

Based on the foregoing and the representations of the applicant, the Commission has determined that the EU requirements for margin threshold levels or amounts, in the case of FCs and NFC+s, are comparable in outcome to those required by the Final Margin Rule, in the case of CSEs.

The Commission notes that at current exchange rates, EUR 50 million is approximately $59 million, while EUR 500,000 is approximately $588,000. Although these amounts are greater than those permitted by the Final Margin Rule, the Commission recognizes that exchange rates will fluctuate over time and thus the Commission finds that such requirements under the laws of the EU are comparable in outcome to those of the Final Margin Rule.

With respect to risk management controls for the calculation of initial margin, the Final Margin Rule generally provides that:

• CSEs are required to have a risk management unit pursuant to § 23.600(c)(4). Such risk management unit must include a risk control unit tasked with validation of a CSE's initial margin model prior to implementation and on an ongoing basis, including an evaluation of the conceptual soundness of the initial margin model, an ongoing monitoring process that includes verification of processes and benchmarking by comparing the CSE's initial margin model outputs (estimation of initial margin) with relevant alternative internal and external data sources or estimation techniques, and an outcomes analysis process that includes back testing the model.141

• In accordance with § 23.600(e)(2), CSEs must have an internal audit function independent of the business trading unit and the risk management unit that at least annually assesses the effectiveness of the controls supporting the initial margin model measurement systems, including the activities of the business trading units and risk control unit, compliance with policies and procedures, and calculation of the CSE's initial margin requirements under this part.142

• At least annually, such internal audit function shall report its findings to the CSE's governing body, senior management, and chief compliance officer.143

With respect to risk management controls for the calculation of variation margin, the Final Margin Rule generally provides that:

• CSEs must maintain documentation setting forth the variation methodology with sufficient specificity to allow a counterparty, the Commission, a registered futures association, and any applicable prudential regulator to calculate a reasonable approximation of the margin requirement independently.

• CSEs must evaluate the reliability of its data sources at least annually, and make adjustments, as appropriate.

• CSEs, upon request of the Commission or a registered futures association, must provide further data or analysis concerning the variation methodology or a data source, including: (a) The manner in which the methodology meets the requirements of the Final Margin Rule; (b) a description of the mechanics of the methodology; (c) the conceptual basis of the methodology; (d) the empirical support for the methodology; and (e) the empirical support for the assessment of the data sources.

With respect to risk management controls for the calculation of initial margin, the EU's margin requirements generally provide that:

• Counterparties shall establish an internal governance process to assess the appropriateness of the initial margin model on a continuous basis, including all of the following: (a) An initial validation of the model by suitably qualified persons who are independent from the persons developing the model; (b) a follow up validation whenever a significant change is made to the initial margin model and at least annually; and (c) a regular audit process to assess the following: (i) The integrity and reliability of the data sources; (ii) the management information system used to run the model; (iii) the accuracy and completeness of data used; (iv) the accuracy and appropriateness of volatility and correlation assumptions.144

• The documentation of the risk management procedures relating to the initial margin model shall meet all of the following conditions: (a) It shall allow a knowledgeable third-party to understand the design and operational detail of the initial margin model; (b) it shall contain the key assumptions and the limitations of the initial margin model; (c) it shall define the circumstances under which the assumptions of the initial margin model are no longer valid.145

• Counterparties shall document all changes to the initial margin model. That documentation shall also detail the results of the validations carried out after those changes.146

Based on the foregoing and the representations of the applicant, the Commission has determined that the EU requirements applicable to FCs and NFC+s pertaining to risk management controls for the calculation of initial and variation margin are substantially the same as the corresponding requirements under the Final Margin Rule. Specifically, the Commission finds that under both the EU's requirements and the Final Margin Rule, a CSE is required to establish a unit that is tasked with comprehensively managing the entity's use of an initial margin model, including establishing controls and testing procedures. Accordingly, the Commission finds that the EU's requirements pertaining to risk management controls over the use of initial margin models are comparable in outcome to the controls required by the Final Margin Rule.

As explained in the BCBS/IOSCO Framework, to ensure that counterparties can liquidate assets held as initial and variation margin in a reasonable amount of time to generate proceeds that could sufficiently protect collecting entities from losses on non-centrally cleared derivatives in the event of a counterparty default, assets collected as collateral for initial and variation margin purposes should be highly liquid and should, after accounting for an appropriate haircut, be able to hold their value in a time of financial stress. Such a set of eligible collateral should take into account that assets which are liquid in normal market conditions may rapidly become illiquid in times of financial stress. In addition to having good liquidity, eligible collateral should not be exposed to excessive credit, market and FX risk (including through differences between the currency of the collateral asset and the currency of settlement). To the extent that the value of the collateral is exposed to these risks, appropriately risk-sensitive haircuts should be applied. More importantly, the value of the collateral should not exhibit a significant correlation with the creditworthiness of the counterparty or the value of the underlying non-centrally cleared derivatives portfolio in such a way that would undermine the effectiveness of the protection offered by the margin collected. Accordingly, securities issued by the counterparty or its related entities should not be accepted as collateral. Accepted collateral should also be reasonably diversified.

With respect to eligible collateral that may be collected or posted to satisfy an initial margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: 147

• Cash denominated in a major currency, being United States Dollar (USD); Canadian Dollar (CAD); Euro (EUR); United Kingdom Pound (GBP); Japanese Yen (JPY); Swiss Franc (CHF); New Zealand Dollar (NZD); Australian Dollar (AUD); Swedish Kronor (SEK); Danish Kroner (DKK); Norwegian Krone (NOK); any other currency designated by the Commission; or any currency of settlement for a particular uncleared swap.

• A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of Treasury.

• A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, a U.S. government agency (other than the U.S. Department of Treasury) whose obligations are fully guaranteed by the full faith and credit of the U.S. government.

• A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20 percent risk weight under the capital rules applicable to SDs subject to regulation by a prudential regulator.

• A publicly-traded debt security issued by, or an asset-backed security fully guaranteed as to the timely payment of principal and interest by, a U.S. Government-sponsored enterprise that is operating with capital support or another form of direct financial assistance received from the U.S. government that enables the repayments of the U.S. Government-sponsored enterprise's eligible securities.

• A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the Bank for International Settlements, the International Monetary Fund, or a multilateral development bank as defined in § 23.151.

• Other publicly-traded debt that has been deemed acceptable as initial margin by a prudential regulator as defined in § 23.151.

• A publicly-traded common equity security that is included in the Standard & Poor's Composite 1500 Index (or any other similar index of liquid and readily marketable equity securities as determined by the Commission) or an index that a CSE's supervisor in a foreign jurisdiction recognizes for purposes of including publicly traded common equity as initial margin under applicable regulatory policy, if held in that foreign jurisdiction.

• Securities in the form of redeemable securities in a pooled investment fund representing the security-holder's proportional interest in the fund's net assets and that are issued and redeemed only on the basis of the market value of the fund's net assets prepared each business day after the security-holder makes its investment commitment or redemption request to the fund, if the fund's investments are limited to securities that are issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of the Treasury, and immediately-available cash funds denominated in U.S. dollars; or securities denominated in a common currency and issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20% risk weight under the capital rules applicable to SDs subject to regulation by a Prudential Regulator, and immediately-available cash funds denominated in the same currency; and assets of the fund may not be transferred through securities lending, securities borrowing, repurchase agreements, reverse repurchase agreements, or other means that involve the fund having rights to acquire the same or similar assets from the transferee.

• Gold.

• A CSE may not collect or post as initial margin any asset that is a security issued by: The CSE or a margin affiliate of the CSE (in the case of posting) or the counterparty or any margin affiliate of the counterparty (in the case of collection); a bank holding company, a savings and loan holding company, a U.S. intermediate holding company established or designated for purposes of compliance with 12 CFR 252.153, a foreign bank, a depository institution, a market intermediary, a company that would be any of the foregoing if it were organized under the laws of the United States or any State, or a margin affiliate of any of the foregoing institutions; or a nonbank financial institution supervised by the Board of Governors of the Federal Reserve System under Title I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5323).148

• The value of any eligible collateral collected or posted to satisfy initial margin requirements must be reduced by the following haircuts: an 8% discount for initial margin collateral denominated in a currency that is not the currency of settlement for the uncleared swap, except for eligible types of collateral denominated in a single termination currency designated as payable to the non-posting counterparty as part of an eligible master netting agreement; and the discounts set forth in the following table: 149

With respect to eligible collateral that may be collected or posted to satisfy a variation margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: 150

• With respect to uncleared swaps with an SD or MSP, only immediately available cash funds that are denominated in: U.S. dollars, another major currency (as defined in § 23.151), or the currency of settlement of the uncleared swap.

• With respect to any other uncleared swaps for which a CSE is required to collect or post variation margin, any asset that is eligible to be posted or collected as initial margin, as described above.

• The value of any eligible collateral collected or posted to satisfy variation margin requirements must be reduced by the same haircuts applicable to initial margin described above.151

Finally, CSEs must monitor the value and eligibility of collateral collected and posted: 152

• CSEs must monitor the market value and eligibility of all collateral collected and posted, and, to the extent that the market value of such collateral has declined, the CSE must promptly collect or post such additional eligible collateral as is necessary to maintain compliance with the margin requirements of §§ 23.150 through 23.161.

• To the extent that collateral is no longer eligible, CSEs must promptly collect or post sufficient eligible replacement collateral to comply with the margin requirements of §§ 23.150 through 23.161.

With respect to eligible collateral that may be collected to satisfy an initial or variation margin obligation, the EU's margin requirements generally provide that counterparties may collect: 153

• Cash in the form of money credited to an account in any currency, or similar claims for the repayment of money, such as money market deposits.

• Gold.

• Debt securities issued by Member States' central governments or central banks.

• Debt securities issued by Member States' regional governments or local authorities whose exposures are treated as exposures to the central government of that Member State in accordance with Article 115(2) of Regulation (EU) No 575/2013.

• Debt securities issued by Member States' public sector entities whose exposures are treated as exposures to the central government, regional government or local authority of that Member State in accordance with Article 116(4) of Regulation (EU) No 575/2013.

• Debt securities issued by multilateral development banks listed in Article 117(2) of Regulation (EU) No 575/2013.

• Debt securities issued by the international organizations listed in Article 118 of Regulation (EU) No 575/2013.

• Debt securities issued by third countries' governments or central banks.

• Where the assets are not issued by the posting counterparty, not issued by entities that are part of the same group as the posting counterparty, or not otherwise subject to any wrong way risk, a counterparty may collect:

Debt securities issued by Member States' regional governments or local authorities whose exposures are not treated as exposures to the central government of that Member State;

Debt securities issued by Member States' public sector entities whose exposures are treated as exposures to the central government, regional government, or local authority of that Member State;

Debt securities issued by third countries' regional governments or local authorities whose exposures are treated as exposures to the central government, regional government, or local authority of that third country;

Debt securities issued by third countries' regional governments or local authorities whose exposures are not treated as exposures to the central government, regional government, or local authority of that third country;

Debt securities issued by credit institutions or investment firms including bonds referred to in Article 52(4) of Directive 2009/65/EC of the European Parliament and of the Council;

Corporate bonds;

The most senior tranche of a securitization, as defined in Article 4(61) of Regulation (EU) No 575/2013, that is not a re-securitization as defined in Article 4(63) of that Regulation;

Convertible bonds provided that they can be converted only into equities which are included in an index specified pursuant to point (a) of Article 197 (8) of Regulation (EU) No 575/2013;

Equities included in an index specified pursuant to point (a) of Article 197(8) of Regulation (EU) No 575/2013;

A counterparty may only use units or shares in undertakings for collective investments in transferable securities (UCITS) as eligible collateral where all the following conditions are met: (a) The units or shares have a daily public price quote; (b) the UCITS are limited to investing in assets that are eligible in accordance with Article 4(1); (c) the UCITS meet the criteria laid down in Article 132(3) of Regulation (EU) No 575/2013. For the purposes of point (b), UCITS may use derivative instruments to hedge the risks arising from the assets in which they invest. In addition, where a UCITS invests in shares or units of other UCITS, these conditions shall also apply to those UCITS.154

Where a UCITS or any of its underlying UCITS do not only invest in assets that are eligible collateral under the RTS, only the value of the unit or share of the UCITS that represents investment in eligible assets may be used as eligible collateral.155

Where non-eligible assets of a UCITS can have a negative value, the value of the unit or share of the UCITS that may be used as eligible collateral shall be determined by deducting the maximum negative value of the non-eligible assets from the value of eligible assets.156

• Counterparties must assess the credit quality of certain asset classes.157

• Counterparties shall adjust the value of collected collateral in accordance with either a methodology prescribed by the RTS 158 or a methodology using their own volatility estimates.159

• There are certain concentration limits for collateral collected as initial margin.160

I. Background

Upon request, FDA has classified the organophosphate test system as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act to a predicate device that does not require premarket approval (see 21 U.S.C. 360c(i)). We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k) and 21 CFR part 807.

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval (PMA) application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”).

Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.

For this device, FDA issued an order on May 2, 2013, finding the Quantitation of Organophosphate Metabolites in Urine by LC/MS/MS (liquid chromatography-tandem mass spectrometry (the two “MS” next to each other denote “tandem”)) not substantially equivalent to a predicate not subject to PMA. Thus, the device remained in class III in accordance with section 513(f)(1) of the FD&C Act when we issued the order.

On May 31, 2013, Elizabeth Hamelin, on behalf of the Centers for Disease Control and Prevention, Division of Laboratory Sciences/National Center for Environmental Health, submitted a request for classification of the Quantitation of Organophosphate Metabolites in Urine by LC/MS/MS. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on August 8, 2013, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 862.3652. We have named the generic type of device organophosphate test system, and it is identified as a device intended to measure organophosphate metabolites quantitatively in human urine from individuals who have signs and symptoms consistent with cholinesterase poisoning. The data obtained by this device is intended to aid in the confirmation and investigation of organophosphate exposure.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS MICHAEL MONSOOR (DDG 1001) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(a)(i), pertaining to the location of the forward masthead light at a height not less than 6 meters above the hull; Annex I, paragraph 2(g) pertaining to the placement of sidelights above the hull of the vessel; Rule 30(a)(i) and Annex I, paragraph 2(k) pertaining to the vertical separation between anchor lights, and the location of the forward anchor light at a height of not less than 6 meters above the hull; Annex I, paragraph 3(a), pertaining to the horizontal separation between the forward and after masthead lights; Annex I, paragraph 2(i)(iii), pertaining to the vertical spacing of task lights; and Annex I, paragraph 3(c), pertaining to the task lights placed at a horizontal distance of not less than 2 meters from the fore and aft centerline of the vessel. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior 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 because it is impracticable. We must establish the special local regulation by October 21, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to protect the persons and property from the dangers associated with the race.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Secret City Head Race from 6 a.m. through 6 p.m. on October 21, 2017 will be a safety concern for all navigable waters on the Clinch River extending from mile marker (MM) 49.5 to MM 54.0. The purpose of this rulemaking is to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event.

This rule establishes a special local regulation from 6 a.m. through 6 p.m. on October 21, 2017 for all navigable waters on the Clinch River from MM 49.5 to MM 54.0. The duration of the regulated area is intended to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.

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, duration, and time-of-day of the special local regulation. Vessel traffic will be able to safely navigate through the affected area before and after the scheduled event. Moreover, the Coast Guard will issue Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated area and the rule allows vessels to seek permission to enter the area.

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 some owners or operators of vessels intending to transit the special local regulation, 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.

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

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 the establishment of a special local regulation lasting twelve hours on one day extending less than five miles of the Clinch River from MM 49.5 to MM 54.0. It is categorically excluded from further review under paragraph 34(h) 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 100 as follows:

I. Background, Purpose and Legal Basis

On April 12, 2017, we published a notice in the Federal Register entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” announcing a temporary deviation from the regulations, with request for comments (see 82 FR 17562). The purpose of the deviation was to test the newly installed remote operational capabilities of the DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6, at Pennsauken Township, NJ, owned and operated by Conrail Shared Assets. The installation of the remote capabilities did not change the operational schedule of the bridge.1

During the initial test deviation performed from 8 a.m. on April 24, 2017, through 7:59 a.m. on October 21, 2017, the bridge owner identified deficiencies in the remote operation center procedures, bridge to vessel communications, and equipment redundancy. Comments concerning these deficiencies were submitted to the docket and provided to the Coast Guard and bridge owner by representatives from the Mariners' Advisory Committee for the Bay and River Delaware.

During the initial test deviation, we also published a notice of proposed rulemaking (NPRM) in the Federal Register, entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” (see 82 FR 29800). In the NPRM, we stated that we are proposing to modify the operating regulation that governs the DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6, at Pennsauken Township, NJ. This proposed regulation would allow the bridge to be remotely operated from the Conrail South Jersey dispatch center in Mount Laurel, NJ, instead of being operated by an on-site bridge tender. In the NPRM, we also stated we would not change the operating schedule of the bridge. The comment period for the notice and NPRM closed on August 18, 2017, and we received a total of fourteen comments. The Coast Guard will adjudicate all comments at the completion of this test.

The bridge owner implemented policies and provided training to address the procedural and communications deficiencies and implemented backup systems to mitigate potential equipment and systems failures. These changes were not fully evaluated during the test deviation ending October 21, 2017. Therefore, the Coast Guard has decided to issue a second test deviation to complete the evaluation of the changes incorporated into the remote operation system.

This test deviation will commence at 8 a.m. on October 21, 2017, and conclude at 7:59 a.m. on April 19, 2018. During the test deviation, a bridge tender will be stationed on-site at the bridge and will be able to immediately take local control of the bridge, as required.

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

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice.

Documents mentioned in this notice as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port, Sector Ohio Valley DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code 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 because it is impracticable. We must establish this safety zone by October 20, 2017 because of the safety issues involved and there is insufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to public interest in ensuring the safety of spectators and vessels during the event because immediate action is necessary to prevent possible loss of life and property. Broadcast Notices to Mariners (BNM) and sharing information with the waterway users will update mariners of the restrictions, requirements, and enforcement times during this temporary situation.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port, Sector Ohio Valley (COTP) has determined that potential hazards associated with the fireworks display from 8:15 p.m. through 8:30 p.m. on October 20, 2017 will be a safety concern for all navigable waters of the Cumberland River extending from mile marker (MM) 190.7 to MM 191.1. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the Light the Night Walk Fireworks Display.

This rule establishes a temporary safety zone from 8:15 p.m. through 8:30 p.m. on October 20, 2017. The temporary safety zone will cover all navigable waters of the Cumberland River extending from MM 190.7 to MM 191.1. The duration of the temporary safety zone is intended to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled fireworks display. No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative. Entry requests will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at 1-800-253-7475 or can be reached by VHF-FM channel 16. Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners and Broadcast Notice to Mariners.

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, duration, and time-of-year of the temporary safety zone. The temporary safety zone will only be in effect for fifteen minutes and covers an area of the waterway stretching less than one mile. Mariners may request authorization from the COTP or a designated representative to transit the temporary 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 some owners or operators of vessels intending to transit the special local regulation 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 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 special local regulated area that would prohibit entry to unauthorized vessels. 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:

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 because it is impracticable. This action is necessary to ensure the safety of life during the Arthur Rozzi Pyrotechnics display. It is impracticable to publish an NPRM because the Coast Guard must establish this safety zone by October 19, 2017 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to public interest in ensuring the safety of spectators and vessels during the event because immediate action is necessary to prevent possible loss of life and property. Broadcast Notices to Mariners (BNM) and sharing information with the waterway users will update mariners of the restrictions, requirements and enforcement times during this temporary situation.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the fireworks display from 7:45 p.m. through 8:45 p.m. on October 19, 2017 will be a safety concern for all navigable waters of the Ohio River extending from mile marker (MM) 469.5 to MM 470.1. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the Arthur Rozzi Pyrotechnics Display.

This rule establishes a temporary safety zone from 7:45 p.m. through 8:45 p.m. on October 19, 2017. The temporary safety zone will cover all waters of the Ohio River extending from MM 469.5 to MM 470.1. The duration of the temporary safety zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative.

Requests to enter the safety zone will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at 1-800-253-7475 or can be reached by VHF-FM channel 16. Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners and Broadcast Notice to Mariners.

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, duration, and time-of-year of the temporary safety zone. The temporary safety zone will only be in effect for one hour and covers an area of the waterway extending less than one mile. The Coast Guard expects minimum adverse impact to mariners from the temporary safety zone activation as the event has been advertised to the public. Also, mariners may request authorization from the COTP or a designated representative to transit the temporary 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 some owners or operators of vessels intending to transit the special local regulation 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 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 special local regulated area that would prohibit entry for one hour and covers an area of the waterway extending less than one mile on the Ohio River. 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:

The regulations at 34 CFR 600.51(c) state, “A foreign institution must comply with all requirements for eligible and participating institutions except when made inapplicable by the HEA or when the Secretary, through publication in the Federal Register, identifies specific provisions as inapplicable to foreign institutions.” Under this authority, the Secretary is identifying as inapplicable the regulatory provisions listed below from 34 CFR part 600, which determine whether an educational institution qualifies in whole or in part as an eligible institution of higher education under the HEA, and may apply to participate in programs authorized by the HEA.

We are taking this action to provide relief to foreign institutions affected by Hurricane Irma or Hurricane Maria. This action allows a foreign institution that can no longer operate in its home country due to the effects of Hurricane Irma or Hurricane Maria to temporarily operate in another country, contingent upon the foreign institution receiving approval from the Secretary for the relocation after providing:

• The plan and timeline for the temporary relocation, including details of the program offerings and an agreement with any institution at which the affected institution will temporarily relocate;

• Approval of the plan and timeline for the temporary relocation from the foreign institution's accrediting body, including an agreement by that accrediting body to visit and monitor operations at the temporary location;

• Documentation from the government of the country where the temporary campus will be located that the foreign institution will be allowed to operate the temporary location for the period of time specified in the timeline; and

• Any additional information the Secretary requires for approval.

The Secretary reserves the right to revoke through written notice her approval of a foreign institution for relocation upon evidence of waste, fraud, or abuse.

The Secretary is identifying as inapplicable the following regulations:

1. 34 CFR 600.52, definition of a “foreign institution,” paragraph (1)(i), requiring that a foreign institution not be located in a State;

2. 34 CFR 600.52, definition of a “foreign institution,” paragraph (1)(ii), requiring that, with the exception of the clinical training portion of a foreign medical, veterinary, or nursing program, a foreign institution (1) have no U.S. locations; (2) have no written arrangements, within the meaning of § 668.5, with institutions or organizations located in the United States for students enrolling at the foreign institution to take courses from institutions located in the United States; and (3) does not permit students to enroll in any course offered by the foreign institution in the United States, including research, work, internship, externship, or special studies within the United States, except that independent research done by an individual student in the United States for not more than one academic year is permitted if it is conducted during the dissertation phase of a doctoral program under the guidance of faculty, and the research can only be performed in a facility in the United States;

3. 34 CFR 600.52, definition of a “foreign institution,” paragraph (1)(iii), requiring a foreign institution to be legally authorized by the education ministry, council, or equivalent agency of the country in which the institution is located to provide an educational program beyond the secondary education level;

4. 34 CFR 600.52, definition of a “foreign institution,” paragraph (1)(iv), requiring a foreign institution to award degrees, certificates, or other recognized educational credentials in accordance with § 600.54(e) that are officially recognized by the country in which the institution is located;

5. 34 CFR 600.52, definition of a “foreign institution,” paragraph (2), requiring that, if an educational enterprise enrolls students both within a State and outside a State, and the number of students who would be eligible to receive title IV, HEA program funds attending locations outside a State is at least twice the number of students enrolled within a State, the locations outside a State must apply to participate as one or more foreign institutions and must meet all requirements of the definition of a “foreign institution,” and the other requirements applicable to foreign institutions;

6. 34 CFR 600.54(d)(1), requiring the additional locations of a foreign institution to separately meet the definition of a “foreign institution” in 34 CFR 600.52 if the additional location is located outside of the country in which the main campus is located, except as provided for the clinical training portion of a program of a foreign graduate medical school, veterinary school, or nursing school;

7. 34 CFR 600.55(a)(2)(iii), requiring that, as part of its clinical training, a foreign graduate medical school does not offer more than two electives consisting of no more than eight weeks per student at a site located in a foreign country other than the country in which the main campus is located or in the United States, unless that location is included in the accreditation of a medical program accredited by the Liaison Committee on Medical Education (LCME) or the American Osteopathic Association (AOA);

8. 34 CFR 600.55(b)(1)(i), requiring that a foreign graduate medical school be approved by an accrediting body that is legally authorized to evaluate the quality of graduate medical school educational programs and facilities in the country where the school is located; and

9. 34 CFR 600.55(h), requiring that a foreign graduate medical program offered to U.S. students:

• Must be located in the country in which the main campus of the school is located, except for the clinical training portion of the program, and must be in a country whose medical school accrediting standards are comparable to U.S. standards as determined by the NCFMEA, except for exempt clinical training sites in 34 CFR 600.55(h)(3)(ii), or clinical sites located in the United States.

• Unless a clinical training site is an exempt clinical training site under 34 CFR 600.55(h)(3)(ii), for students to be eligible to receive Direct Loan funds at any part of the clinical training portion of the program located in a foreign country other than the country where the main campus of the foreign graduate medical school is located or in the United States: (i) The school's medical accrediting agency must have conducted an on-site evaluation and approved the clinical training site, and (ii) the clinical instruction must be offered in conjunction with programs offered to students enrolled in accredited schools located in that approved foreign country.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

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

States are required to submit a progress report every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area 1 (Class I area). Specifically, the progress report evaluates progress toward the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from with the state. 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP under 40 CFR 51.308(h). The first progress report SIP is due five years after submittal of the initial regional haze SIP.

Minnesota submitted its regional haze plan to EPA on December 30, 2009, with a supplement submitted on May 8, 2012. Correspondingly, Minnesota submitted its five-year progress report and its determination of adequacy on December 30, 2014. EPA is approving Minnesota's progress report on the basis that it satisfies the applicable requirements of 40 CFR 51.308.

Two Class I areas are located in Minnesota, the Boundary Waters Canoe Wilderness Area (Boundary Waters) and the Voyageurs National Park (Voyageurs). Further, Minnesota emissions contribute to visibility impairment at a Class I area located out of state, the Isle Royale National Park (Isle Royale) in Michigan.

States must periodically submit a regional haze progress report that addresses the elements found in 40 CFR 51.308(g). States are required by 40 CFR 51.308(h) to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions listed in the rule based on information in the progress report.

The following sections discuss the information provided in Minnesota's progress report. Each section describes Minnesota's progress report SIP submission and provides EPA's analysis and proposed determination as to whether the submission meets the applicable requirements of 40 CFR 51.308.

In general, the Regional Haze Rule features two strategies for reducing visibility-impairing pollutants: Implementing best available retrofit technology (BART) and the long-term strategy (LTS). In Minnesota, BART applies to electric generating units (EGUs) and taconite facilities.

The Minnesota progress report described the implementation of regional haze controls at EGUs. Minnesota's 2009 Regional Haze SIP included source-specific BART determinations for subject EGUs. Minnesota had intended to rely on the Clean Air Interstate Rule (CAIR) EGU emissions cap and trade program, finalized on May 12, 2005 (70 FR 25162), which had been determined by EPA as “better than BART.” However, CAIR was remanded (without vacatur) by the Court of Appeals for the District of Columbia (D.C.) Circuit in December 2008, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). Therefore, Minnesota's 2009 Regional Haze SIP relied on the source-specific BART determinations performed by the state.

EPA finalized the Cross-State Air Pollution Rule (CSAPR), effective October 7, 2011 (76 FR 48208). Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program. However, numerous parties filed petitions for review of CSAPR, and at the end of 2011, the D.C. Circuit issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR. EME Homer City Generation, L.P. v. EPA, D.C. Cir. No. 11-1302 (December 30, 2011).

In December 2011, EPA proposed a rule to approve CSAPR as an alternative to determining source-by-source specific BART for sulfur dioxide (SO2) and nitrogen oxide (NOX) emissions from power plants. 76 FR 82219 (December 30, 2011). EPA finalized the rule on June 7, 2012. 77 FR 33642. Minnesota modified its EGU BART strategy, replacing source-specific BART determinations at subject facilities with participation in CSAPR. On January 5, 2012, Minnesota requested to use CSAPR participation to satisfy BART for its EGUs, which EPA approved on June 12, 2012 (77 FR 34801). EPA considers CSAPR to satisfy the BART requirements for Minnesota EGUs for SO2 and NOX.

On August 21, 2012, the Court of Appeals for the D.C. Circuit vacated CSAPR, keeping CAIR in effect while EPA developed a replacement rule. EPA appealed the ruling to the U.S. Supreme Court, which upheld CSAPR in a final decision issued on April 29, 2014.2 On October 23, 2014, the Court of Appeals granted EPA's motion to lift the stay of CSAPR and to toll CSAPR's compliance deadlines by three years. On November 21, 2014, EPA issued a rule that aligns the dates in the CSAPR rule text with the revised court-ordered schedule, including the implementation of Phase I in 2015. 79 FR 71663.

Minnesota used CSAPR to satisfy BART for its subject EGUs. The EGUs in Minnesota, including both units subject to BART and units not subject to BART, have reduced SO2 and NOX emissions even with the delay in implementing CSAPR. In the progress report, Minnesota shows that 2013 state-wide SO2 emissions from EGUs were 24,366 tons. That is below the CSAPR budget of 41,981 tons and a 76 percent decrease from 2002 emissions. Minnesota also shows that 2013 state-wide NOX emissions were 24,855 tons from EGUs. That is below the 29,572 tons CSAPR budget and a 71 percent decrease from 2002 emissions.

The Minnesota progress report described the implementation of regional haze controls at taconite facilities. Minnesota's 2009 Regional Haze SIP included source-specific BART determinations for subject taconite facilities. On February 6, 2013, EPA finalized a Federal Implementation Plan rule (FIP) with BART determinations and enforceable limits for Minnesota's subject taconite facilities for control of SO2 and NOX emissions. 78 FR 8706.

Compliance deadlines in the FIP ranged from a few months (for most SO2 limits) to five years from the SIP's effective date of March 8, 2013. The affected facilities, however, as well as the state of Michigan, filed petitions for reconsideration and review of the FIP rule. The Eighth Circuit Court of Appeals granted a stay of the rule on June 14, 2013. As of the date of Minnesota's progress report, December 30, 2014, the stay remained in effect while the parties sought to resolve the litigation.3 Subsequently, the stay was lifted on November 15, 2016.

The FIP provided BART limits for taconite furnaces. The delays in implementing the taconite FIP extended beyond the period Minnesota assessed in its progress report. In light of the stay of the FIP during the reporting period, Minnesota did not include any expected visibility improvements that will arise from the implementation of the FIP in its progress report analysis. Minnesota will evaluate visibility benefits from the taconite FIP in future regional haze plans and progress reports.

In its progress report, Minnesota described its Northeast Minnesota Plan, which is part of the LTS in its regional haze plan. The Northeast Minnesota Plan applies to sources in a six-county (Carlton, Cook, Itasca, Koochiching, Lake, and Saint Louis counties) area in northeastern Minnesota that emit at least 100 tons per year of either NOX, SO2, or both. The Northeast Minnesota Plan sets two targets from the base case for reductions in combined NOX and SO2 emissions.

In its progress report, Minnesota noted the additional emission reductions expected from several Federal programs. Minnesota considered the emission reductions from the Tier 2 Gasoline, Heavy-duty Highway Diesel, Non-road Diesel, and a variety of Maximum Achievable Control Technology programs in its regional haze plan. Minnesota did not rely on additional emissions controls from other states in its regional haze strategy. Additional emission reductions from the evaluated programs and from other states will not delay visibility improvement and may accelerate the improvement.

EPA concludes that Minnesota has adequately addressed the status of control measures in its regional haze SIP. Minnesota describes the implementation status of measures from its regional haze SIP including the status of control measures to meet BART, reasonable progress requirements, and the status of measures from on-the-book controls.

Minnesota provided its EGUs emissions of SO2 and NOX for 2002, 2009, and 2013, along with its CSAPR budgets. As discussed in III.A.1.a. of this rule, emissions of the relevant pollutants have sharply declined from 2002 to 2013, and are all below the CSAPR budgets.

EPA expects further SO2 and NOX emission reductions from EGUs and the taconite facilities as CSAPR and the taconite FIP are implemented. Minnesota should account for these future emission reductions in its plan for the 2018-2028 implementation period. Minnesota will reassess its RPGs and the adequacy of its regional haze SIP when preparing its second regional haze SIP to cover the 2018-2028 implementation period. That assessment will include its reliance upon CSAPR for emission reductions from EGUs, implementation of controls on its taconite facilities, and any other applicable emission controls.

The Northeast Minnesota Plan sets a 20 percent reduction target for 2012 and a 30 percent reduction target for 2018 of combined NOX and SO2 emissions from the 2002 base. Minnesota reported that the 2012 combined emissions from the Northeast Minnesota Plan sources meet the 2012 goal. Thus, Minnesota has made adequate progress to date in achieving emission reductions.

Although the progress report is an evaluation of the progress achieved, there are some new sources permitted in the Northeast Minnesota Plan area. Minnesota made a projection of 2018 combined emissions that adds permitted new sources, modifications, and potential new sources to the existing area sources that is less than the 2018 Northeast Minnesota Plan goal.

EPA finds that the summary of emission reductions achieved from control strategy implementation meets the applicable requirements.

Minnesota reported the 2013 visibility conditions for the 20 percent most impaired days (worst) and the 20 percent least impaired days (best) at Boundary Waters and Voyageurs. Those values indicate progress from the 2002 baseline toward the 2018 RPGs.

EPA finds that Minnesota properly reported the current visibility conditions for the most impaired and least impaired days, the difference between current conditions and baseline conditions for the most impaired and least impaired days, and the change in visibility for the most impaired and least impaired days over the past five years. Minnesota's visibility progress is on track as improvement has been shown for the 20 percent least impaired days and is on track for the 20 percent most impaired days at both Class I Federal areas, Boundary Waters and Voyageurs.

Minnesota provided its 2002 base emissions and projected 2018 emissions in its regional haze plan submitted in 2009. The progress report gives 2011 annual emissions for SO2, NOX, ammonia (NH3), and volatile organic compounds (VOC). These emissions can be compared to the 2002 base and 2018 projected emissions to evaluate progress.

Minnesota reports 2011 total SO2 emissions of 62,100 tons, lower than the 2018 goal of 108,000 tons. Minnesota noted that SO2 emissions have been steadily declining. Point sources comprise most of the SO2 emissions, and several projects at coal-burning EGUs have driven the decline in SO2 emissions.

Minnesota NOX emissions have declined to 299,000 tons in 2011, nearing the 2018 goal of 288,000. For NOX emissions, mobile sources are the main sector, and, as such, implementation of mobile source programs is expected to continue to decrease NOX emissions in Minnesota. Potential emission reductions from EGUs and taconite facilities, once implemented, will provide some further assistance. Minnesota appears to be on track to meet its 2018 RPG for NOX emissions given the reductions already achieved and further reductions expected because of the controls being implemented.

Minnesota projected its NH3 emissions to increase 37 percent from 2002 to 2018, while by 2011 NH3 emissions increased by 6.5 percent. Minnesota noted in its report that so far NH3 emissions are increasing at a lower rate than predicted, but there still is some uncertainly regarding the emissions growth rate. Non-point source, agricultural livestock manure management in particular, are the main sector for NH3 emissions in Minnesota.

Minnesota projects VOC emissions to decrease 23 percent from 2002 to 279,000 tons in 2018. Minnesota reports 273,000 tons of VOC emissions in 2011. Emissions are gradually decreasing from implementation of a variety of programs. The state's anthropogenic VOC emissions are mainly from mobile and non-point sources.

Minnesota noted that direct fine particulate matter (PM2.5) emissions have a minimal impact on visibility in Boundary Waters and Voyageurs. EPA examined the PM2.5 emissions inventories and found a downward trend in emissions.

Minnesota appears to be on-track for reaching the 2018 emission projections in its regional haze plan. EPA finds that Minnesota's analysis tracking emissions progress for the current five-year period has satisfied the applicable requirements.

Minnesota provided an assessment of its SO2, NOX, and NH3 emissions changes and of the five contributing states (Illinois, Iowa, Missouri, North Dakota, and Wisconsin).

Minnesota reported 2011 emissions, which show a 61 percent SO2 reduction from the 2002 base year, a 38 percent NOX reduction, and a 6.5 percent increase in NH3 emissions.

Iowa emissions (as indicated in its progress report) show a 37,400 ton SO2 reduction from 2002 to 2008, along with a 68,100 ton NOX reduction. Minnesota reviewed the public comment draft of the Missouri progress report. Missouri reported a 147,000 ton reduction in SO2 emissions and a 53,200 ton reduction in NOX emissions from 2005 to 2011. North Dakota provided emission information that shows a 67,000 ton, or 38 percent, SO2 reduction and a 51,000 ton or 22 percent NOX reduction from 2002 to 2011. Illinois and Wisconsin had not compiled emission data in time for Minnesota to evaluate for the report.

Minnesota also included emissions data from EPA's Clean Air Markets Division that show reductions in both SO2 and NOX emissions for each of the six states from 2005 to 2013. Collectively for the six states, SO2 emissions declined 645,000 tons or 57 percent decrease, and there was a 293,000 ton or 53 percent decrease in NOX emissions.

EPA finds that Minnesota properly assessed available information for any significant changes in anthropogenic emissions over the past five years to determine whether these changes have impeded progress in improving visibility. The five contributing states are in various stages in assessing emissions for progress reports making Minnesota's assessment of contributing states' emissions inconsistent state to state. The visibility data available to Minnesota indicates that visibility improvement is on track. Supplementing the data from other states, EPA's Clean Air Markets Division data show that significant, wide-spread SO2 and NOX emission declines have already occurred. Thus, there is no evidence that progress in Minnesota is being impeded by emissions from other states.

Minnesota has implemented, or expects to implement by 2018, all controls from its approved regional haze plan. The state noted in the progress report that its emissions are on track for the 2018 goals, including reductions that are ahead of pace for the key visibility impairing pollutants, SO2 and NOX. Minnesota expects that the implementation of CSAPR and other Federal programs will address the reasonable progress obligations of the contributing states.

Minnesota emissions contribute to visibility impairment at Isle Royale. Emission reductions from Minnesota sources that help visibility improvement at Boundary Waters and Voyageurs also support visibility improvement at Isle Royale. Minnesota has achieved greater SO2 emission reductions than predicted in both its own and Michigan's regional haze plans.

EPA finds that Minnesota has provided an assessment of the current strategy to determine if it is sufficient to meet reasonable progress goals at all Class I Federal areas impacted by Minnesota emissions. The available information indicates that Minnesota is implementing its controls. The visibility progress at both Boundary Waters and Voyageurs is on track and thus suggests Minnesota's current strategy is sufficient to meet its reasonable progress goals.

Minnesota states in its progress report that Interagency Monitoring of Protected Visual Environments (IMPROVE) sites operate at the Class I Federal areas, Boundary Waters and Voyageurs, which are in northeastern Minnesota. There are also two IMPROVE protocol sites in southern Minnesota operating near Blue Mounds State Park and Great River Bluffs State Park. Minnesota will continue to operate the IMPROVE network monitors based on Federal funding. If future reductions to the IMPROVE network occur, the state has a contingency plan to use the PM2.5 monitoring network. In addition, Minnesota commits to meeting the reporting requirements of 40 CFR 51.308(d)(4)(iv) for its Class I Federal areas.

EPA finds that Minnesota has adequately reviewed its visibility monitoring strategy, and concurs that it appears sufficient. No modifications to the monitoring strategy are needed at this time.

The determination of adequacy for the regional haze plan is required to be submitted at the same time as the progress report. The rule at 40 CFR 51.308(h) requires the state to select from four actions based on the state's evaluation of its regional haze plan.

Minnesota determined that its regional haze plan, including the 2012 supplement as approved into the Minnesota SIP, is adequate to meet the Regional Haze Rule requirements and expects to achieve the RPGs at Boundary Waters, Voyageurs, and Isle Royale. Thus, Minnesota submitted a negative declaration that further substantive revision of its regional haze plan is not needed at this time.

EPA finds that the current Minnesota regional haze plan is adequate to achieve its established goals. The reported information indicates that Minnesota is on track to meet its visibility improvement and emission reduction goals.

Minnesota published a public notice in the July 28, 2014, State Register. Minnesota offered a public meeting upon request. No one requested a public meeting. The state provided a public comment period of July 28, 2014, to August 27 2014, and received eight comment letters on its action. The comment letters, along with Minnesota's responses, are included in the progress report in Appendix F.

Minnesota consulted with Federal Land Managers (FLMs) on June 10, 2014. It provided a draft of the progress report to FLMs on June 20, 2014. The FLM comments, along with Minnesota's responses, are included in the progress report in Appendix F. Minnesota made revisions to the progress report based on FLM comments.

EPA finds that Minnesota has addressed the applicable public participation requirements in 40 CFR 51.308(i).

EPA is approving the regional haze progress report that Minnesota submitted on December 30, 2014, as a revision to the Minnesota SIP. EPA finds that Minnesota has satisfied the progress report requirements of 40 CFR 51.308(g). EPA also finds that Minnesota has met the requirements of 40 CFR 51.308(h) for a determination of the adequacy of its regional haze plan with its negative declaration.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 18, 2017 without further notice unless we receive relevant adverse written comments by November 17, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. Relevant public comments will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 18, 2017.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

States are required to submit a progress report every five years that evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area 1 (Class I area) within the state and in each Class I area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP. See 40 CFR 51.308(h). The first progress report must be submitted in the form of a SIP revision and is due five years after the submittal of the initial regional haze SIP. On June 24, 2011, Illinois submitted its first regional haze SIP in accordance with the requirements of 40 CFR 51.308. EPA approved Illinois' regional haze plan into its SIP on July 6, 2012, 77 FR 39943.

On February 1, 2017, Illinois submitted a SIP revision consisting of a report on the progress made in the first implementation period towards the RPGs for Class I areas outside of Illinois (progress report). Illinois does not have any Class I areas within its borders. This progress report included a determination that Illinois' existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. EPA is approving Illinois' progress report on the basis that it satisfies the requirements of 40 CFR 51.308.

On February 1, 2017, Illinois EPA submitted the progress report as a revision to its regional haze SIP to address progress made in the first planning period towards RPGs for Class I areas that are affected by emissions from Illinois' sources. The progress report included a determination of the adequacy of the state's existing regional haze SIP.

Illinois has no Class I areas within its borders. In the initial SIP, the following Class I areas are identified as sites that may be affected by emissions from within Illinois: Sipsey Wilderness Area (Alabama), Caney Creek Wilderness Area and Upper Buffalo Wilderness Area (Arkansas), Great Gulf Wilderness Area (New Hampshire), Boundary Waters Canoe Wilderness Area (Minnesota), Brigantine Wilderness Area (New Jersey), Great Smoky Mountains National Park (North Carolina, and Tennessee), Mammoth Cave National Park (Kentucky), Acadia National Park and Moosehorn Wilderness Area (Maine), Isle Royale National Park and Seney Wilderness Area (Michigan), Hercules-Glades Wilderness Area and Mingo Wilderness Area (Missouri), Lye Brook Wilderness (Vermont), James River Face Wilderness and Shenandoah National Park (Virginia), and Dolly Sods/Otter Creek Wilderness (West Virginia).

In developing the Long Term Strategy (LTS), the original Illinois regional haze SIP determined that “on-the-books” controls, together with best available retrofit technology (BART) controls, would constitute the measures necessary to address Illinois' contribution to visibility impairment in the Class I areas at which emissions from Illinois contribute. This was supported by modeling assessments from the Midwest Regional Planning Organization (MRPO) and in consultation with other states and Regional Planning Organizations.

The following sections discuss the information provided by Illinois in the progress report. Each section describes Illinois' applicable progress report submission along with EPA's analysis and proposed determination as to whether the submission met the applicable requirements of 40 CFR 51.308.

Illinois provided the status of implementation of all control measures as required by 40 CFR 51.308(g)(1). Illinois identified control measures regulated explicitly for the purposes of the regional haze program, as well as additional control measures that were expected to take effect within the first planning period. The regional haze controls implemented by Illinois include both BART and a LTS.

In its original regional haze SIP, Illinois relied primarily on three control strategies for meeting its regional haze requirements to ensure reasonable progress: 2 (1) Federal consent decrees for two petroleum refineries; (2) source-specific limits for three power plants that were included in Federally enforceable permits; and, (3) emission reductions from the vast majority of state's electric generating unit (EGU) fleet resulting from the Multi-Pollutant Standard (MPS) and the Combined Pollutant Standard (CPS) regulatory requirements found in Title 35 of the Illinois Administrative Code (35 IAC), Mercury Rule, Part 225, Subpart B—Control of Mercury Emissions from Coal-Fired Electric Generating Units (Part 225). These elements of Illinois' SIP satisfied the requirements for BART in 40 CFR 51.308(e). All three control strategies have been implemented or are being implemented on the schedules approved in the SIP.

In addition to these control measures being implemented, in Section 1.2 of the report Illinois identified a list of “on-the-books” control measures used in the MRPO's modeling for Illinois' SIP that the state expected to implement between 2002 and 2018. These “on-the-books” control measures are being implemented as planned or in a manner at least as stringent as anticipated at the time of the original haze plan submittal. More detailed information regarding the implementation dates of the various control measures can be found in Appendix A of the report.

Illinois did not rely on additional emissions controls from other states in its regional haze strategy. In Section 1.3 of the report, Illinois noted the following additional control measures not considered in Illinois' regional haze SIP which are expected to contribute to further reduction of sulfur dioxide (SO2) emissions before 2018: Compliance with the 2010 SO2 National Ambient Air Quality Standard, and the Federal Tier 3 Vehicle Emissions and Fuel Standard Program (2014).

The report noted that in 2015 Illinois adopted regulations that set statewide fuel sulfur standards for stationary sources at 1000 parts per million (ppm) for residual oil and 15 ppm for distillate fuel oil. These regulatory requirements were to be implemented by January 1, 2017.

EPA concludes that Illinois has adequately addressed the status of control measures in its regional haze SIP as required by 40 CFR 51.308(g)(1).

In its progress report, Illinois provided a summary of emission reductions achieved through implementation of control strategies described in the above paragraph as required by 40 CFR 51.308(g)(1).

Illinois' reliance upon the MPS and CPS from 35 IAC 225, the source-specific limits incorporated into Federally enforceable permits for three power plants, and requirements contained in Federal consent decrees for two petroleum refineries have resulted in significant emission reductions of nitrogen oxides (NOX) and SO2. In Section 2.0 of the progress report, Illinois provided emissions data from the base year 2002 for the regional haze rule, projections of emissions for 2015 and 2018, and actual emissions data from EPA's Air Markets Program Data. These data indicate that greater reductions of NOX and SO2 emissions have occurred in 2015 at regulated sources than were anticipated for the entire first implementation period ending in 2018.

The additional emission reductions reported in Section 2.0 were based on other factors such as the shutting down or conversion of coal-fired EGUs to combustion of other fuels, and control measures related to Federal requirements such as, Maximum Achievable Control Technology and the Mercury and Air Toxics Standards. The report shows that emission reduction of visibility-impairing pollutants in Illinois have been greater than anticipated at the time of its regional haze plan submittal.

EPA finds the summary of emission reductions achieved from control strategy implementation adequately addresses the applicable provisions of 40 CFR 51.308(g)(2).

Illinois does not have any Class I areas within its boundaries, and as the applicable provisions pertain only to states containing Class I areas, no further discussion is necessary. EPA concludes that Illinois has adequately addressed the applicable provisions of 40 CFR 51.308(g).

In its progress report, Illinois provided an analysis tracking the emissions progress over the past five years, as required by 40 CFR 51.308(g)(4). Illinois based its report on the most recent updated emissions inventory to account for emission changes during the applicable five-year period. The analysis includes emissions of SO2, NOX, ammonia (NH3), volatile organic compound (VOC), and direct emissions of fine particulate matter (PM2.5) for the years 2010 to 2014 (the most recent year for which Illinois has a full quality-assured inventory). In order to provide a five-year analysis with data from years with full quality-assured inventories, Illinois EPA has interpolated 2010 inventory data from its 2008 and 2011 inventories.

Table 1 below contains Illinois inventory data aggregated by source type for each visibility-impairing pollutant. This data shows significant reductions in Illinois emissions of SO2 (40% reduction) and NOX (15% reduction) while showing slight increases or decreases in emissions of PM2.5 (0.15% increase), VOC (0.5% increase), and NH3 (4% reduction).

An additional table in the report shows the significant reductions in SO2 and NOX emissions were driven primarily by reductions from the EGU sector. Illinois anticipates that this trend will continue in 2015 and beyond, due to further increases in the stringency of the state regulations and additional coal-fired EGUs in Illinois being retired or converted to natural gas combustion.

Emissions of VOC and PM2.5 appear to have increased slightly over the five-year period. However, Illinois EPA analysis indicates that this apparent increase is due mainly to changes in inventory methodologies. While VOC emissions in Illinois decreased for many subcategories in the inventory summary, these reductions are overwhelmed by the significant increase in the “Petroleum and Related Industries” subcategory. With respect to calculating the proportion of PM2.5 in source emissions, Illinois determined that the apparent increase in PM2.5 emissions is from the EGU sector, while overall PM emissions, fuel usage, and emissions of other pollutants for the EGU sector showed significant reductions.

Overall emissions of visibility-impairing pollutants in Illinois have declined over the five-year period between 2010 and 2014. Again, the regional haze SIP for Illinois control strategies focused primarily on reductions of SO2 and NOX.

EPA finds that the analysis tracking the emissions progress over the past five years adequately addresses the applicable provisions of 40 CFR 51.308(g).

The Regional Haze Rule at 40 CFR 51.308(g)(5) requires an assessment of any significant changes in emissions over the past five years that have impeded progress in improving visibility.

In the progress report, Illinois has not identified any significant changes in anthropogenic emissions within Illinois that have occurred over the last five years that would limit or impede progress in improving visibility. Illinois reports that there have been no significant unexpected increases in emissions in the past five years. Likewise, Illinois reports that there have been no projected decreases in pollutant emissions from the regional haze SIP that have not been realized. Data detailed in Sections 2.0 and 4.0 of Illinois' progress report show Illinois achieving emission reductions of SO2 and NOX beyond the projected emission reductions in the original regional haze SIP.

Because Illinois does not contain any Federal Class I areas, Illinois is not required to assess whether emission increases outside the state are causing a Class I area within the state to be adversely affected. Thus, EPA concludes that Illinois has adequately addressed the applicable provisions of 40 CFR 50.308.

In its progress report, Illinois submits that the elements and strategies outlined in its original regional haze SIP are sufficient to enable Illinois and states where Illinois contributes to visibility impairments to meet all established RPGs. To support this conclusion, Illinois has implemented, or will implement by 2018, all controls from its regional haze plan. In the progress report, Illinois states that good progress has been made in reducing in visibility-impairing pollutants in the last five years. The state noted that it is on track to meet its 2018 goals for emission reductions before the end of 2018 for key pollutants, SO2 and NOX. Section 2.0 of the progress report, provides actual emissions data showing significant emissions reductions in visibility impairing pollutants in 2015 that have already exceeded the projected emission reductions in the Illinois by 2018.

EPA agrees that Illinois' assessment of strategies outlined in its regional haze SIP has adequately addressed the applicable provisions of 40 CFR 50.308.

Illinois's progress report indicates that there are no Class I areas within its borders. EPA concludes that because Illinois does not have any Class I areas within its borders and therefore is not required to address the applicable provisions related to review of the state's visibility monitoring strategy, the state has adequately addressed the applicable provisions of 40 CFR 51.308.

The rule at 40 CFR 51.308(h) requires a determination of adequacy for the regional haze plan to be submitted at the same time as the progress report. The rule requires the state to select from four options based on the information given in the progress report. Illinois submitted a negative declaration that further substantive revisions to its regional haze plan are not needed at this time. Illinois determined that its regional haze plan is adequate to meet the regional haze rule requirements and expects Class I areas affected by Illinois to achieve the reasonable progress goals. The nearest Class I area outside the state of Illinois is either in southwestern Missouri or northern Michigan. See 77 FR 3966, 3967 (January 12, 2012). Illinois reports that it is on track to meet the visibility improvement and emission reduction goals. EPA agrees that the current Illinois regional haze plan is adequate to achieve these goals.

On June 23, 2016, Illinois provided an opportunity for FLMs to review the revision to Illinois' SIP reporting on progress made during the first implementation period toward RPGs for Class I areas outside the state that are affected by emissions from Illinois' sources. This was 60 days in advance of the public hearing.

Illinois' progress report includes the FLMs comments received and responses to those comments in Appendix A in the progress report.

Illinois also published notification for a public hearing and solicitation for comments in the Illinois Register on October 7, 2016, with the public comment period commencing on that day and ending on November 6, 2016. Illinois received no request for a public hearing. Illinois received one public comment during the public comment period. The state provided a response to the comment, regarding the Illinois regional haze report.

EPA finds that Illinois has addressed the applicable requirements in § 51.308(i) regarding FLM consultation.

EPA is approving the regional haze progress report submitted on February 1, 2017, as a revision to the Illinois SIP. Illinois has satisfied the progress report requirements of 40 CFR 51.308(g). EPA also finds that Illinois has met the 40 CFR 51.308(h) requirements for a determination of the adequacy of its regional haze plan with its negative declaration also submitted on February 1, 2017.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 18, 2017 without further notice unless we receive relevant adverse written comments by November 17, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 18, 2017.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

States are required to submit a progress report every five years that evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area within the State and in each mandatory Class I Federal area outside the State which may be affected by emissions from within the State. See 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of their existing regional haze SIP. See 40 CFR 51.308(h). The first progress report is due five years after the submittal of the initial regional haze SIP.

Michigan submitted its regional haze plan on November 5, 2010. EPA approved Michigan's regional haze plan into its SIP on December 3, 2012, 77 FR 71533.

In order to satisfy the requirements for Best Available Retrofit Technology (BART) for certain taconite ore processing facilities in Minnesota and Michigan, EPA promulgated a Federal Implementation Plan (taconite FIP) on February 6, 2013, 78 FR 8706. In Michigan, the taconite facility impacted by this FIP is the Tilden Mining Company. The taconite FIP was stayed by the Eighth Circuit Court of Appeals on June 14, 2013. EPA subsequently reached a settlement agreement with Cliffs Natural Resources and Arcelor Mittal that was fully executed on April 9, 2015. On April 12, 2016, EPA published a final rule that modifies the taconite FIP with the settlement agreement conditions, 81 FR 21672.

Michigan submitted its five-year progress report on January 12, 2016. The State submitted its determination of adequacy with the progress report.

There are two Class I areas in Michigan, Isle Royale National Park (Isle Royale) located on Lake Superior and Seney National Wildlife Refuge (Seney) located in Michigan's Upper Peninsula.

The emission reductions from several Federal programs contribute to visibility improvement in Michigan. In its regional haze plan, Michigan considered the emission reductions from the Tier 2 Gasoline, Heavy-duty Highway Diesel, Non-road Diesel, and a variety of Maximum Achievable Control Technology programs. Michigan elected to use the Cross-State Air Pollution Rule (CSAPR) to satisfy BART for its power plant units.

Under 40 CFR 51.308(g), states must periodically submit a regional haze progress report every five years that address the seven elements found in 40 CFR 51.308(g).

Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report, a determination of the adequacy of their existing regional haze SIP and to take one of four possible listed actions based on information in the progress report.

The Regional Haze Rule provides the required elements for five-year progress reports at 40 CFR 51.308(g). EPA finds that Michigan satisfied the 40 CFR 51.308(g) requirements with its progress report. EPA finds that, with its negative declaration, Michigan also satisfied the requirements for the determination of adequacy provided in 40 CFR 51.308(h).

The following sections discuss the information provided by Michigan in the progress report submission, along with EPA's analysis and determination of whether the submission met the applicable requirements of 51.308.

In its progress report, Michigan summarizes the status of the emissions reduction measures that were included in its 2010 regional haze SIP. Specifically, the report addresses the status of the on-the-books emissions reduction measures. The measures include applicable Federal programs including: Clean Air Interstate Rule—or CAIR; CSAPR; Tier II for on-highway mobile sources; heavy-duty diesel standards; low sulfur fuel standards; and Federal control programs for non-road mobile sources. Michigan used CSAPR to satisfy BART for its subject electric generating units (EGUs). Even with the delay in implementing CSAPR, the EGUs in Michigan subject to BART have reduced sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions. In the progress report, Michigan compares 2013 state-wide SO2 and NOX emissions from EGUs to 2009 emissions. In this period, SO2 emissions decreased from 310,000 tons to 230,109 tons, or by 26 percent. NOX emissions decreased from 144,440 tons to 122,653 tons, or by 15 percent.

Michigan also expects reductions of about 1,400 tons NOX per year, and 300 tons SO2 per year, from the implementation of the taconite FIP.

In its regional haze plan, Michigan noted the additional emission reductions expected from several Federal programs. Michigan considered the reductions from: Tier 2 Gasoline; Heavy-duty Highway Diesel; Non-road Diesel; and a variety of Maximum Achievable Control Technology programs. Michigan did not rely on additional emissions controls from other states in its regional haze strategy. The additional emission reductions from the programs and other states will not delay visibility improvement and may well accelerate the improvement.

Regarding the status of BART and reasonable progress control requirements for sources in the State, Michigan's progress report provides a summary of the five non-EGU sources identified in the 2010 Regional Haze SIP as subject to BART. These sources include the LaFarge Midwest Alpena Plant, Escanaba Paper Company, St. Marys Cement, Smurfit Stone Container Corporation and Tilden Mining Company. Three of the five BART sources are required to apply additional or more stringent controls beyond those required in the Michigan BART determinations due to USEPA disapprovals of the State BART determinations and issuance of additional FIPs.

EPA finds the implementation of Michigan's control measures adequate. EPA also expects SO2 and NOX emission reductions from the taconite facilities—most specifically, from the Tilden Mining Company in Michigan. However, given the implementation schedule in the taconite FIP, most of the resulting emission reductions will occur in the 2018-2028 implementation period.

EPA finds the summary of emission reductions achieved from control strategy implementation adequate.

In its regional haze SIP and progress report, Michigan focuses its assessment on NOX and SO2 emissions from EGUs as a result of the implementation of CAIR and CSAPR, as well as emissions from non-EGUs. In the progress report, Michigan listed emission reductions in terms of projected impacts on the two affected Class I areas—Isle Royale and Seney. Emissions reductions were presented based on the top ten in-state point sources impacting these two areas.

For the Isle Royale area, emission reduction for the top ten impacting point sources combined was 48,000 tons for SO2 and 8,400 tons for NOX. For the Seney area, emission reduction for the top 10 impacting point sources combined was 16,000 tons for SO2 and 2,700 tons for NOX.

EPA concludes that Michigan has adequately addressed the applicable requirements of 40 CFR 51.308. Michigan provides estimates of reductions of NOX and SO2 from EGUs and non-EGUs that have occurred since Michigan submitted its regional haze SIP. Given the large NOX and SO2 reductions that have actually occurred, further analysis of emissions from other sources or other pollutants was unnecessary in this first implementation period.

Michigan reports that visibility conditions at Isle Royale National Park have improved to 18.9 deciviews (dv) in 2013 from its 2000-2004 baseline of 21.59 dv for the 20 percent most impaired days. The State also reports that visibility conditions at Seney have improved to 20.6 dv in 2013, from its 2000-2004 baseline of 24.37 dv for the 20 percent most impaired days. The 2018 reasonable progress goal is 20.86 dv for Isle Royale and 23.58 dv for Seney. For the 20 percent least impaired days at Isle Royale, visibility has improved 2.7 dv in 2013, from the 2000-2004 baseline. At Seney, visibility has improved 3.8 dv in 2013, from the 2000-2004 baseline.

Michigan provided annual and five-year rolling averages for the impaired and least impaired days at both Isle Royale and Seney from 2000 to 2014.

EPA finds that Michigan properly reported the current visibility conditions for the most impaired and least impaired days, the difference between current conditions and baseline conditions for the most impaired and least impaired days, and the change in visibility for the most impaired and least impaired days over the past five years. Michigan's visibility progress is on track as improvement has been shown for the 20 percent least impaired days and is on pace for the 20 percent most impaired days at both affected Class I areas.

In its regional haze plan submitted in 2010, Michigan provided its 2005 base emissions and projected 2018 emissions. In the 2010 plan, Michigan compared the base data from 2005 with a 2009 emissions inventory constructed by the Lake Michigan Air Directors Consortium. The progress report gives current annual emissions for ammonia (NH3), NOX, SO2, coarse particulate matter (PM10), fine particulate matter (PM2.5), and reactive organic gases (ROG). These figures can be compared to the base and 2018 projected emissions. The emissions inventories from the 2005, 2009 and 2018 datasets include all point, nonpoint, on-road, non-road, marine-aircraft-rail (MAR), and other sources.

For SO2, Michigan reports 2005 base emissions of 439,145 tons, 2009 emissions of 303,159 tons, and projects 314,328 tons in 2018, which would be a 28 percent reduction from the 2005 base year. Michigan noted that SO2 emissions have been steadily declining. Point sources comprise 93 percent of SO2 emissions, so several projects at coal-burning EGUs have driven the decline in SO2 emissions.

For NOX, Michigan reports 2005 base emissions of 586,482 tons, 2009 emissions of 447,176 tons, and projects 309,549 tons in 2018, which would be a 47 percent decrease from the 2005 base year. For NOX emissions, mobile sources are the main contributing sector, and, as such, implementation of mobile source programs will continue to decrease NOX emissions in Michigan with expected reductions from EGUs and taconite facilities providing some assistance.

For PM10, Michigan reports a 2005 base of 98,181 tons, 2009 emissions of 105,301 tons, and projects 98,753 tons in 2018, which is an increase of less than 1% from the 2005 base year. For PM2.5, Michigan reports a 2005 base of 85,839 tons, 2009 emissions of 96,720, and projects 90,485 tons in 2018, which is an increase of 5.3% from the 2005 base year. In the 2010 Regional Haze SIP, Michigan predicted these particulate matter increases, but it was deemed insignificant relative to the visibility improvements from the large reductions of NOX and SO2 emissions over those same time periods. NOX and SO2 emissions reductions have a much greater impact on visibility improvement.

Table 1 below shows the emissions reductions from 2005-2009 versus projected 2018 emission reductions from the 2010 Michigan regional haze SIP submission.

For NH3, Michigan reports a 2005 base of 67,489 tons, 2009 emissions of 73,369 tons, and projects 78,156 tons in 2018, which is an increase of 15.8% from the 2005 base year. Non-point source, agricultural livestock manure management in particular, are the main sector for NH3 emissions in Michigan.

For ROG emissions, Michigan reports a 2005 base of 564,643 tons, 2009 emissions of 485,771 tons, and projects 396,921 tons in 2018, which is a decrease of 30% from the 20005 base year. Michigan's anthropogenic ROG emissions are mainly from mobile and non-point sources. These emissions are gradually decreasing from implementation of a variety of programs.

EPA finds that Michigan has satisfied the requirement of an analysis tracking emissions progress for the current five-year period. Michigan appears to be on track for reaching its 2018 emission projections.

Michigan provided an assessment of SO2, NOX, and NH3 emissions changes in-state and for the three states (Illinois, Minnesota and Wisconsin) that contribute to visibility impairment at Class I areas in Michigan.

Michigan reported 2009 emissions, which show a 28 percent SO2 reduction from the 2005 base year, a 50 percent NOX reduction, and an eight percent increase in NH3 emissions.

Michigan also included emissions data from EPA's Clean Air Markets Division (CAMD) that show reductions in both SO2 and NOX emissions for each of the three contributing states from 2009 to 2013. For the Isle Royale Class I area, it is evident that the emission reduction for the top ten impacting point sources combined was largest for SO2 with a reduction of almost 48,000 tons over the 2009-13 period. A reduction of NOx for these 10 sources combined was determined at approximately 8,400 tons. These reductions account for more than one-third of statewide point source NOX emissions reductions and over one-half of statewide point source SO2 reductions for the 2009-2013 period. The source with by far the largest combined NOX and SO2 reductions was the DTE Monroe Power Plant with combined NOX/SO2 reductions of 47,000 tons.

EPA finds that Michigan properly assessed available information for significant changes in emissions over the past five years that have impeded progress in improving visibility. The three contributing states are still in various stages in assessing emissions for progress reports. Minnesota's progress report was submitted in December, 2014. Progress reports for Illinois and Wisconsin had not yet been submitted as of the date of Michigan's submittal. Thus, Michigan had not completed the assessment of contributing states' emissions. Still, Michigan gathered the information it could, and the visibility data indicates visibility improvement is on-track. Supplementing the available data, EPA's CAMD data show significant, widespread SO2 and NOX emission declines have already occurred. There is no evidence that progress is being impeded.

Michigan has implemented, or expects to implement by 2018, all controls from its approved regional haze plan. Michigan noted in the progress report that its emissions are on track for the 2018 goals, including reductions that are ahead of pace for the key visibility-impairing pollutants, SO2 and NOX. Michigan expects that the implementation of CSAPR and other Federal programs will address the reasonable progress obligations of the contributing states.

Emission reductions from Michigan sources that help visibility improvement at Isle Royale and Seney support visibility improvement. Michigan has achieved greater SO2 emission reductions than predicted in its regional haze plan.

EPA finds that Michigan has provided an assessment of the current strategy, demonstrating that it is sufficient to meet reasonable progress goals at all Class I areas impacted by Michigan emissions. Michigan is implementing its controls. The visibility progress at both Isle Royale and Seney is on track and suggests that Michigan's current strategy is sufficient to meet its reasonable progress goals.

Michigan stated in its progress report that Interagency Monitoring of Protected Visual Environments (IMPROVE) sites operate at both Class I areas, Isle Royale and Seney. Michigan will continue to operate the IMPROVE network monitors, based on Federal funding. The State has a contingency plan to use the PM2.5 monitoring network if needed due to future reductions to the IMPROVE network. Michigan commits to meeting the reporting requirements of 40 CFR 51.308(d)(4)(iv) for its Class I areas.

EPA finds that Michigan has met the visibility monitoring strategy review requirements.

The determination of adequacy for the regional haze plan is required to be submitted at same time as the progress report. The rule requires the State to select from four options based on the information given in the progress report.

Michigan submitted a negative declaration indicating that further substantive revision of its regional haze plan is not needed at this time. Michigan determined that its regional haze plan is adequate to meet the Regional Haze Rule requirements and expects to achieve the reasonable progress goals at Isle Royale and Seney.

EPA finds that the current Michigan regional haze plan is adequate to achieve its established goals. Michigan is on track to meet the visibility improvement and emission reduction goals.

Michigan provided an opportunity for the public and Federal Land Managers (FLMs) to review Michigan's progress report by November 18, 2015. Michigan's progress report includes in Appendix B, the FLM's comments and Michigan's response to those comments. Appendix C includes the public comments and Michigan's response to those comments.

Michigan also published notification for a public hearing and solicitation for full public comment concerning the draft five-year progress report in widely distributed county publications. No public hearing was requested.

EPA finds that Michigan has addressed the applicable requirements in 51.308(i) regarding FLM consultation.

EPA is approving the regional haze progress report submitted on January 12, 2016, as a revision to the Michigan SIP. We find that Michigan has satisfied the progress report requirements of 40 CFR 51.308(g). We find that Michigan has also met the 40 CFR 51.308(h) requirements for a determination of the adequacy of its regional haze plan with its negative declaration also submitted on January 12, 2016.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the State plan if relevant adverse written comments are filed. This rule will be effective December 18, 2017 without further notice unless we receive relevant adverse written comments by November 17, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. Public comments will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 18, 2017.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

On July 17, 2014, the District of Columbia (the District) through the District Department of Energy and the Environment (DDOEE) submitted a SIP revision addressing the infrastructure requirements under section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS.

On June 2, 2010, the EPA strengthened the SO2 primary standards, establishing a new 1-hour primary standard at the level of 75 parts per billion (ppb), based on the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations (hereafter “the 2010 1-hour SO2 NAAQS”). At the same time, the EPA also revoked the previous 24-hour and annual primary SO2 standards. See 75 FR 35520 (June 22, 2010). See 40 CFR 50.11. The previous SO2 air quality standards were set in 1971, including a 24-hour average primary standard at 140 ppb and an annual average primary standard at 30 ppb. See 36 FR 8186 (April 30, 1971).

SO2 is one of a group of highly reactive gases known as “oxides of sulfur.” Nationally, the largest sources of SO2 emissions are fossil fuel combustion at power plants and other industrial facilities. Smaller sources of SO2 emissions include industrial processes such as extracting metal from ore, and the burning of high sulfur containing fuels by locomotives, large ships, and non-road equipment. SO2 is linked with a number of adverse effects on the respiratory system.

The CAA requires states to submit, within three years after promulgation of a new or revised NAAQS, SIPs meeting the applicable elements of sections 110(a)(1) and (2).1 Several of these applicable elements are delineated within section 110(a)(2)(D)(i) of the CAA. Section 110(a)(2)(D)(i) generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on neighboring states due to interstate transport of air pollution. There are four prongs within section 110(a)(2)(D)(i) of the CAA; section 110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section 110(a)(2)(D)(i)(II) includes prongs 3 and 4. According to the CAA's good neighbor provision located within section 110(a)(2)(D)(i)(I), a state's SIP must contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that “contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” Under section 110(a)(2)(D)(i)(I) of the CAA, EPA gives independent significance to the matter of nonattainment (prong 1) and to that of maintenance (prong 2).

On July 17, 2014, the District, through DDOEE, submitted a revision to its SIP to satisfy the infrastructure requirements of section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS, including section 110(a)(2)(D)(i)(I). On April 13, 2015 (80 FR 19538), the EPA approved the District's infrastructure SIP submittal for the 2010 1-hour SO2 NAAQS for all applicable elements of section 110(a)(2) with the exception of 110(a)(2)(D)(i)(I).2 This rulemaking action is addressing the portions of the District's infrastructure submittal for the 2010 1-hour SO2 NAAQS that pertain to transport requirements.3

The portion of the District's July 17, 2014 SIP submittal addressing interstate transport (for section 110(a)(2)(D)(i)(I)) includes an emissions inventory and air quality data that concludes that the District does not have sources that can contribute with respect to the 2010 1-hour SO2 NAAQS to nonattainment in, or interfere with maintenance in, any other state. The submittal also included currently available air quality monitoring data which alleged that SO2 levels continue to be well below the 2010 1-hour SO2 NAAQS in the District and in any areas surrounding or bordering the District. EPA has reviewed current monitoring data for SO2 and finds monitor data within the District, and in areas surrounding the District, continue to show no nonattainment issues with regards to the SO2 NAAQS.

Additionally, the District described in its submittal several existing SIP-approved measures and other federally enforceable source-specific measures, including measures pursuant to permitting requirements under the CAA, that apply to SO2 sources within the District. The District alleges with these measures, SO2 emissions within the District are minimal. The EPA finds that the District's existing SIP provisions, as identified in the July 17, 2014 SIP submittal, are adequate to prevent the District's emission sources from significantly contributing to nonattainment or interfering with maintenance in another state with respect to the 2010 1-hour SO2 NAAQS. In light of these measures, the EPA does not expect SO2 emissions in the District to increase significantly, and therefore does not expect monitors in the District and nearby states to have difficulty continuing to attain or maintain attainment of the NAAQS. A detailed summary of EPA's review and rationale for approval of this SIP revision as meeting CAA section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS may be found in the Technical Support Document (TSD) for this rulemaking action, which is available online at www.regulations.gov, Docket number EPA-R03-OAR-2014-0701.

EPA is approving the portions of the District's July 17, 2014 SIP revision addressing interstate transport for the 2010 1-hour SO2 NAAQS as these portions meet the requirements in section 110(a)(2)(D)(i)(I) of the CAA. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 18, 2017 without further notice unless EPA receives adverse comment by November 17, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, addressing the District's interstate transport for the 2010 1-hour SO2 NAAQS, 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 whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Lead is a metal found naturally in the environment and present in some manufactured products. However, lead has serious public health effects and depending on the level of exposure can adversely affect the nervous system, kidney function, immune system, reproductive and developmental systems and the cardiovascular system. Infants and young children are especially sensitive to even low levels of lead, which may contribute to behavioral problems, learning deficits and lowered intelligence quotient. The major sources of lead for air emissions have historically been from fuels used in on-road motor vehicles (such as cars and trucks) and industrial sources. As a result of EPA's regulatory efforts to remove lead from on-road motor vehicle gasoline, emissions of lead from the transportation sector declined by 95 percent between 1980 and 1999, and levels of lead in the air decreased by 94 percent between 1980 and 1999.

On November 12, 2008 (73 FR 66964), EPA established the 2008 primary and secondary lead NAAQS at 0.15 micrograms per cubic meter (μg/m3) based on a maximum arithmetic three-month mean concentration for a three-year period. 40 CFR 50.16.

On November 22, 2010 (75 FR 71033), EPA published its initial air quality designations and classifications for the 2008 lead NAAQS based upon air quality monitoring data for calendar years 2007-2009. These designations became effective on December 31, 2010. A portion of Fulton County was designated as nonattainment for lead, specifically portions of Swan Creek and York Townships. 40 CFR 81.336.

On April 27, 2017, Ohio requested EPA to designate the applicable Fulton County area as attainment of the lead NAAQS. Ohio documented that its request meets the redesignation criteria of CAA section 107.

Ohio used the emissions inventory to find that there were no area, mobile, or nonroad sources of lead emissions that contributed to nonattainment. The Bunting Bearings LLC facility (Bunting) in the village of Delta is the only point source of lead emissions in the nonattainment area. Bunting manufactures continuous cast products in copper alloys, typically bronze, that contain lead. The lead component of the alloys is important as it allows for machining the bronze.

The requirements for redesignating an area from nonattainment to attainment are found in CAA section 107(d)(3)(E). There are five criteria for redesignating an area. First, the Administrator must determine that the area has attained the applicable NAAQS based on current air quality data. Second, the Administrator must have fully approved the applicable SIP for the area under CAA section 110(k). The third criterion is for the Administrator to determine that the air quality improvement is the result of permanent and enforceable emission reductions. Fourth, the Administrator must have fully approved a maintenance plan meeting the CAA section 175A requirements. The fifth criterion is that the state has met all of the applicable requirements of CAA section 110 and part D.

On May 26, 2015, EPA determined that Fulton County has attained the 2008 lead NAAQS. 80 FR 29964. EPA made its clean data determination based upon complete, quality-assured and certified ambient air monitoring data for the 2012-2014 period. The Fulton County area attained the 2008 lead NAAQS, with a design value of 0.09 µg/m3 for 2012-2014, well below the 0.15 µg/m3 standard.

EPA has reviewed the current monitoring data for Fulton County, Ohio. The latest available monitoring data continue to show attainment of the 2008 lead NAAAQS. The 2014-2016 design value for the County is 0.12 µg/m3.

EPA has determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for the Fulton County area under section 110 of the CAA (general SIP requirements). In addition, with the exceptions of the RACM/RACT requirements under section 172(c)(1) and the emissions inventory under section 172(c)(3), all applicable requirements of the Ohio SIP for purposes of redesignation have either been approved or have been suspended, by either a clean data determination or determination of attainment. EPA is also approving Ohio's 2013 emissions inventory as meeting the section 172(c)(3) comprehensive emissions inventory requirement as well as approving the RACM provisions as meeting the section 172(c)(1) requirement. Thus, we are determining that Ohio's submission meets all SIP requirements currently applicable for purposes of redesignation under part D of title I of the CAA, in accordance with sections 107(d)(3)(E)(ii) and 107(d)(3)(E)(v).

In making these determinations, EPA has ascertained which SIP requirements are applicable for purposes of redesignation, and concluded that the Ohio SIP includes measures meeting those requirements and that they are fully approved under section 110(k) of the CAA. Further discussion of EPA's review of Ohio's submittal regarding these criteria follows.

Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: (1) Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; (4) include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, New Source Review (NSR) permit programs; (5) include criteria for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and (7) provide for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state.

EPA interprets the “applicable” requirements for an area's redesignation to be those requirements linked with a particular area's nonattainment designation. Therefore, EPA believes that the section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status, such as the “infrastructure SIP” elements of section 110(a)(2), are not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment, and thus EPA does not interpret such requirements to be relevant applicable requirements to evaluate in a redesignation. For example, the requirement to submit state plans addressing interstate transport obligations under section 110(a)(2)(D)(i)(I) continue to apply to a state regardless of the designation of any one particular area in the state, and thus are not applicable requirements to be evaluated in the redesignation context.

EPA has applied this interpretation consistently in many redesignations over a period of decades. See e.g., 81 FR 44210 (July 7, 2016) (final redesignation for the Sullivan County, Tennessee area); 79 FR 43655 (July 28, 2014) (final redesignation for Bellefontaine, Ohio lead nonattainment area); 61 FR 53174-53176 (October 10, 1996) and 62 FR 24826 (May 7, 1997) (proposed and final redesignation for Reading, Pennsylvania ozone nonattainment area); 61 FR 20458 (May 7, 1996) (final redesignation for Cleveland-Akron-Lorain, Ohio ozone nonattainment area); and 60 FR 62748 (December 7, 1995) (final redesignation of Tampa, Florida ozone nonattainment area). See also 65 FR 37879, 37890 (June 19, 2000) (discussing this issue in final redesignation of Cincinnati, Ohio 1-hour ozone nonattainment area); 66 FR 50399 (October 19, 2001) (final redesignation of Pittsburgh, Pennsylvania 1-hour ozone nonattainment area).

EPA has reviewed the Ohio SIP and has determined that it meets the general SIP requirements under section 110 of the CAA to the extent the requirements are applicable for purposes of redesignation. EPA has previously approved provisions of Ohio's SIP addressing section 110 requirements, including provisions addressing lead, at 40 CFR 52.1870.

On October 12, 2011, and supplemented on June 7, 2013, Ohio submitted its infrastructure SIP elements for the 2008 lead NAAQS as required by CAA section 110(a)(2). EPA approved Ohio's infrastructure SIP requirements for the 2008 lead NAAQS on October 6, 2014. 79 FR 60075. The requirements of section 110(a)(2) are statewide requirements that are not linked to the lead nonattainment status of the Fulton County area or Ohio's redesignation request.

EPA has determined that upon approval of the base year emissions inventories and RACM provisions discussed in this rulemaking, the Ohio SIP will meet the applicable SIP requirements for the Fulton County area applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas.

Section 172(c) sets out general nonattainment plan requirements. A thorough discussion of these requirements can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) (“General Preamble”). EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the General Preamble, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. 57 FR 13564. EPA noted that the requirements for reasonable further progress (RFP) and other measures designed to provide for an area's attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the September 4, 1992, Processing Requests to Redesignate Areas to Attainment: Policy Memorandum (Calcagni Memorandum).

EPA's understanding of section 172 also forms the basis of its Clean Data Policy. Under the Clean Data Policy, EPA promulgates a determination of attainment, published in the Federal Register and subject to notice-and-comment rulemaking, and this determination formally suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). The Clean Data Policy has been codified in regulations regarding the implementation of the ozone and fine particulate matter NAAQS. 70 FR 71612 (November 29, 2005) and 72 FR 20586 (April 25, 2007). The Clean Data Policy has also been specifically applied in a number of lead nonattainment areas where EPA has determined that the area is attaining the lead NAAQS. 79 FR 46212 (August 7, 2014) (proposed determination of attainment of Lyons, Pennsylvania lead nonattainment area); 80 FR 51127 (determination of attainment of Eagan, Minnesota lead nonattainment area). EPA finalized a Clean Data Determination under this policy for the Fulton County lead nonattainment area on May 26, 2015. 80 FR 29964.

EPA's long-standing interpretation regarding the applicability of section 172(c) attainment planning requirements for an area that is attaining a NAAQS applies in this redesignation of the Fulton County lead nonattainment area as well, except for the applicability of the requirement to implement all reasonably available control measures under section 172(c)(1). On July 14, 2015, the United States Court of Appeals for the Sixth Circuit (6th Circuit) ruled that to meet the requirement of section 107(d)(3)(E)(ii), states are required to submit plans addressing RACM/RACT under section 172(c)(1) and EPA is required to approve those plans prior to redesignating the area, regardless of whether the area is attaining the standard. Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015). As Ohio is within the jurisdiction of the 6th Circuit, EPA is acting in accordance with the Sierra Club decision by approving RACM provisions in parallel with this redesignation action.1

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment of the primary NAAQS. Under this requirement, a state must consider all available control measures, including reductions that area available from adopting RACT on existing sources, for a nonattainment area and adopt and implement such measures as are reasonably available in the area as components of the area's attainment demonstration. EPA is today approving Ohio's RACM submission. Therefore, Ohio has met its requirements under CAA sections 172(c)(1) and 107(d)(3)(E)(v).

The remaining section 172(c) “attainment planning” requirements are not applicable for purposes of evaluating Ohio's redesignation request. Specifically, the RFP requirement under section 172(c)(2), which is defined as progress that must be made toward attainment, the requirement to submit section 172(c)(9) contingency measures, which are measures to be taken if the area fails to make reasonable further progress to attainment, and the section 172(c)(6) requirement that the SIP contain control measures necessary to provide for attainment of the standard, are not applicable requirements that Ohio must meet here because the Fulton County area has monitored attainment of the 2008 lead NAAQS. As noted, EPA issued a determination of attainment (or clean data determination) for the Fulton County area in May 2015, which formally suspended the obligation to submit any of the attainment planning SIPs. 80 FR 29964 (May 26, 2015).

Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. Ohio submitted 2008 and 2013 emission inventories with its redesignation request. The 2013 inventory can be used as the most accurate and current inventory. As discussed in section III.B., EPA is approving the 2013 base year inventory as meeting the section 172(c)(3) emissions inventory requirement for the Fulton County area.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Ohio's current NSR program January 10, 2003. 68 FR 1366. In addition, the state's maintenance plan does not rely on nonattainment NSR, therefore having a fully approved NSR program is not an applicable requirement, but, nonetheless, EPA has approved the state's program.2

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. No additional measures are needed to provide for attainment because attainment has been reached.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). EPA has determined that the Ohio SIP meets the section 110(a)(2) applicable requirements for purposes of redesignation.

CAA section 176(c) requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway and transit projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). Considering the elimination of lead additives in gasoline, transportation conformity does not apply to the lead NAAQS. 73 FR 66964, 67043 n.120. EPA approved Ohio's general conformity SIP on March 11, 1996. 61 FR 9646.

Upon final approval of Ohio's comprehensive 2013 emissions inventories and approval of RACM for the Fulton County lead area, EPA will have fully approved the Ohio SIP for the Fulton County area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the September 4, 1992, Processing Requests to Redesignate Areas to Attainment: Policy Memorandum (Calcagni memorandum)); Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)). EPA also relies on measures approved in conjunction with a redesignation action. See 68 FR 25413 (May 12, 2003) (approving I/M program for St. Louis) and 68 FR 25413, 25426 (May 12, 2003). Ohio has adopted and submitted, and EPA has fully approved, required SIP provisions addressing the 2008 lead standards. Of the CAA requirements applicable to this redesignation request only two remain applicable, the emissions inventory requirement of section 172(c)(3) and the RACM requirement of section 172(c)(1).

EPA is approving Ohio's 2013 emissions inventories for the Fulton County area as meeting the requirement of section 172(c)(3) of the CAA, and approving RACM provisions meeting the requirement of 172(c)(1). No SIP provisions are currently disapproved, conditionally approved, or partially approved in the Fulton County area under section 110(k) in accordance with section 107(d)(3)(E)(ii).

To support the revision of an area's designation from nonattainment to attainment, CAA section 107(d)(3)(E)(iii) requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions. Permanent and enforceable emission reductions result from the implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable emission reductions.

Bunting is the lone source of lead emissions in the Fulton County nonattainment area. Ohio implemented a preventative maintenance plan (PMP) for Bunting. The PMP specifies the required inspections to be performed, requires continuous operation of a fabric filter bag leak detection system, and specifies the correct actions Bunting is to take following an inspection suggesting a leak or an alarm of the leak detection system. The PMP was implemented to correct control equipment malfunctions and poor housekeeping that caused additional lead emissions from the Bunting facility. Ohio incorporated the PMP requirements into the Air Pollution Permits-to-install and operate P0121822, P0120836, and P0121942 issued to Bunting on February 28, 2017. Those permits are permanent and Federally enforceable.

In conjunction with its request to redesignate the Fulton County nonattainment area to attainment, Ohio requested a SIP revision to provide for maintenance of the 2008 lead NAAQS in the area through 2030.

The required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment are contained in section 175A of the CAA. Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation”. EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation”. Calcagni memorandum at 9. Eight years after redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the subsequent 10 years.

To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future lead violations.

The Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a maintenance plan should address the following items: The attainment emissions inventory, a maintenance demonstration showing maintenance for the 10 years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.

Ohio's maintenance plan shows that the Fulton County area's emissions will remain below the attainment year levels through 2030.

Ohio provided lead emissions inventories for the nonattainment year (2008), the attainment year (2013), an interim year (2021), and a future year (2030). The lead emissions in tons per year (TPY) for Fulton County, Ohio are listed in Table 1.

Ohio included a section 175(A) maintenance plan in its submission. In the plan, Ohio has provided both an emissions inventory and air dispersion modeling of the emission limits resulting from the PMP to demonstrate that the area is expected to maintain the standard into the future. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni memorandum at 9-10. A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).

The plan demonstrates maintenance of the 2008 lead standard through 2030 by showing that current and future emissions of lead in the area remain at or below attainment year emission levels. In addition, the area can show modeled attainment of the NAAQS. The emissions inventory comparison showing the decline in emissions between 2013 and 2030 indicates maintenance. The modeling Ohio conducted also supports the conclusion that the Fulton County area will maintain attainment into the future.

A summary of the air dispersion modeling for Bunting was included in Ohio's submission. The modeling evaluated the PMP measures including the emission limits from Air Pollution Permits-to-install and operate P0108083, P0121822, P0120836, and P0121942. Ohio used the American Meteorology Society/Environmental Protection Agency Regulatory Model, known as AERMOD. That analysis yielded a maximum impact of 0.12 µg/m3, which is below the 2008 lead NAAQS of 0.15 µg/m3. This modeling analysis is valid for the Fulton County redesignation because the Bunting control measures are responsible for the emission reductions that brought the area into attainment.

Ohio's maintenance plan submission shows that the Fulton County area's lead emissions will remain below the attainment year inventories through 2030. See Table 1. The reductions in lead emissions in the Fulton County area result from the permanent and enforceable control measures for Bunting, the lone lead source in the area. Monitoring data show that the Fulton County area ambient lead concentrations have remained below the NAAQS since the PMP was applied to Bunting. Because of the control measures implemented, it is reasonable to expect the emissions to remain at a level that meets the standard. Thus, it is reasonable to expect the Fulton County area will continue to attain the 2008 lead NAAQS through 2030. EPA has determined that Ohio's submission demonstrates that the area will continue to maintain the 2008 lead NAAQS at least through 2030. In addition, the air dispersion modeling indicates that with the permitted emission limitation implemented the Fulton County area ambient lead concentration will be below the 2008 lead NAAQS. Based on the showing, in accordance with section 175A, that the Ohio's maintenance plan provides for maintenance for at least 10 years after redesignation, EPA is approving the redesignation request and maintenance plans.

Ohio has committed to monitor ambient lead levels in the Fulton County area during the maintenance period to confirm continued maintenance of the 2008 lead NAAQS, and to continue to operate an adequate monitoring network. EPA has determined that the Fulton County, Ohio area lead monitoring network is adequate to confirm maintenance.

Ohio will also continue to enter its air monitoring data into the Air Quality System in accordance with Federal guidelines. It will also submit periodic emissions inventories to EPA as required by the Federal Consolidated Emissions Reporting Rule. 67 FR 39602, June 10, 2002. Both actions will help to verify continued attainment of the NAAQS in accordance with 40 CFR part 58.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. CAA section 175A requires that the maintenance plan include such contingency measures. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. Section 175A(d) of the CAA.

Ohio's contingency plan defines a warning level and action level response. The warning level response will trigger when a lead monitor three-month rolling average exceeds 0.135 µg/m3 in the maintenance area. If a warning level response is triggered, Ohio will conduct a study to determine whether the lead values indicate a trend toward exceeding the standard and what control measure would be necessary to reverse the trend within 12 months of the conclusion of the calendar year. The action level response will be prompted by the determination of the warning level study that a reverse of the trend is needed, or by the three-month rolling average exceeding 0.143 µg/m3. The action level response will require Ohio to work with the entity found to be responsible for the ambient concentration to evaluate and implement the needed control measures to bring the area into attainment within 18 months of the conclusion of the calendar year that triggered the response.

Should the 2008 lead NAAQS be violated during the maintenance period, Ohio will implement one or more contingency measures. The contingency measures will be considered based on the cause of the elevated lead levels. Potential measures include improvements to existing control devices, the addition of a secondary control device, and improvements to housekeeping and maintenance.

EPA has determined that Ohio's maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan.

As required by section 175A(b) of the CAA, Ohio commits to submit to the EPA an updated lead maintenance plan eight years after redesignation of the Fulton County area to cover an additional ten-year period beyond the initial ten-year maintenance period.

For the reasons set forth above, EPA is approving Ohio's 2008 lead maintenance plan for the Fulton County area as meeting the requirements of CAA section 175A.

Section 172(c)(3) of the CAA requires areas to submit a comprehensive, accurate, and current emissions inventory. Ohio provided such an inventory in its submission.

Ohio identified Bunting as the lone source of lead emissions in the Fulton County nonattainment area. Thus, the emissions from Bunting represent the emissions of the Fulton County area. In 2013, the lead emissions were 0.0035 TPY. See Table 1.

EPA approves the lead emissions inventories submitted by Ohio in April 2017 as fully meeting the comprehensive inventory requirement of section 172(c)(3) of the CAA for the Fulton County area for the 2008 lead NAAQS.

Based on the 6th Circuit decision discussed above, EPA requires areas in the jurisdiction of the 6th Circuit to have approved RACM/RACT provisions in order to be redesignated. Ohio performed a RACM analysis for Bunting. EPA is approving the existing controls and maintenance provisions for Bunting as fulfilling this requirement. Bunting has combined limits in Federally enforceable permits for the units controlled by each of its three baghouses. Baghouse A has a combined limit of 0.150 pound lead per hour (lb/hr) for the exhaust of units P006 to P011, P013, P020 to P025, P029 to P032, P035, and P036. Baghouse B has a combined limit of 0.150 lb/hr for units P014 to P019 and P028. Baghouse C has a combined limit of 0.075 lb/hr for unit P005. The current controls and PMP have brought the area into attainment and constitute RACM, which meets the requirement of CAA section 172(c)(1).

EPA has determined that the Fulton County area is attaining the 2008 lead NAAQS and that the area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus approving the request from Ohio to change the legal designation of the Fulton County area from nonattainment to attainment for the 2008 lead standard. EPA is approving Ohio's maintenance plan for the Fulton County area as a revision to the Ohio SIP because we have determined that the plan meets the requirements of section 175A of the CAA. EPA is approving the emission controls in Air Pollution Permits-to-install and operate P0108083, P0121822, P0120836, and P0121942 as meeting the RACM/RACT requirements of CAA section 172(c)(1). EPA is approving the 2013 emissions inventory as meeting the comprehensive emissions inventory requirements of section 172(c)(3) of the CAA. EPA is taking these actions in accordance with the CAA and EPA's implementation regulations regarding the 2008 lead NAAQS.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 18, 2017 without further notice unless we receive relevant adverse written comments by November 17, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. Public comments will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 18, 2017.

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

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

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

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

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

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

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

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

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

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

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 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 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR parts 52 and 81 are amended as follows:

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

EPA is approving Illinois' request to redesignate the Chicago and Granite City areas from nonattainment to attainment for the 2008 lead NAAQS under section 107(d)(3)(E) of the Clean Air Act (CAA) and taking several related actions. These actions include approval of, as revisions to the Illinois SIP, Illinois': Lead maintenance plan for the areas under section 175A; 2012 lead emission inventories under section 172(c)(3); and rules applying emission limits and other control requirements to lead sources in the Chicago and Granite City areas.

EPA's analysis for taking these actions is discussed in Section IV below.

Lead is a metal found naturally in the environment as well as in manufactured products. Lead may have serious public health effects depending on the level of exposure. Lead can adversely affect the nervous system, kidney function, immune system, reproductive system, and cardiovascular system. Infants and young children are especially sensitive to even low levels of lead, which may contribute to behavioral problems, learning deficits, and lowered IQ. The major sources of lead for air emissions have historically been from fuels used in on-road motor vehicles (such as cars and trucks) and industrial sources. As a result of EPA's regulatory efforts to remove lead from on-road motor vehicle gasoline, emissions of lead from the transportation sector dramatically declined by 95 percent between 1980 and 1999, and levels of lead in the air decreased by 94 percent between 1980 and 1999.

Today, the highest levels of lead in the air are usually found near lead smelters. The major sources of lead emissions to the air today are ore and metals processing and piston-engine aircraft operating on leaded aviation gasoline.

On November 12, 2008 (73 FR 66964), EPA established the 2008 primary and secondary lead NAAQS at 0.15 micrograms per cubic meter (μg/m3) based on a maximum arithmetic 3-month mean concentration for a 3-year period. See 40 CFR 50.16.

On November 22, 2010 (75 FR 71033), EPA published its initial air quality designations and classifications for the 2008 lead NAAQS based upon air quality monitoring data for calendar years 2007-2009. These designations became effective on December 31, 2010. In this initial round, the Granite City area was designated nonattainment for the 2008 lead NAAQS. On November 22, 2011 (76 FR 72097), EPA published a second and final round of designations for the 2008 lead NAAQS based upon air quality monitoring data for calendar years 2008-2010. These designations became effective on December 31, 2011. In this second round, the Chicago area was designated nonattainment for the 2008 lead NAAQS. See 40 CFR 81.314.

On January 9, 2014, Illinois EPA submitted to EPA an attainment demonstration for the 2008 lead NAAQS. This submission included a request to incorporate into the Illinois SIP new rules at Title 35 Illinois Administrative Code (Ill. Adm. Code) Part 226. On June 17, 2014, Illinois EPA supplemented this submission with additional information regarding the state rulemaking process.

On September 22, 2016, Illinois EPA requested that the Granite City and Chicago lead nonattainment areas be redesignated to attainment for the 2008 lead NAAQS and submitted the maintenance plan for the areas as a proposed revision to the Illinois SIP. In this September 22, 2016, submission, Illinois EPA withdrew most parts of the previous two submissions, but did not withdraw the request that EPA approve, as a revision to the Illinois SIP, the requirements at 35 Ill. Adm. Code Part 226 to limit lead emissions in the areas. Illinois similarly did not withdraw certain attachments and support documents, such as emissions inventories and modeling data, that are relevant to this request. On February 16, 2017, Illinois EPA clarified certain details regarding the maintenance plan components of its September 22, 2016 submission.

The CAA sets forth the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS based on current air quality data; (2) the Administrator has fully approved an applicable SIP for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable emission reductions resulting from implementation of the applicable SIP, Federal air pollution control regulations, or other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and (5) the state containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and the requirements for nonattainment areas under part D of the CAA.

The bases for EPA's actions follow.

In accordance with section 179(c) of the CAA, 42 U.S.C. 7509(c), EPA is determining that the Chicago and Granite City areas have attained the 2008 lead NAAQS. This determination is based upon complete, quality-assured, and certified ambient air monitoring data that show the areas have monitored attainment of the lead NAAQS.

Under EPA regulations at 40 CFR 50.16, the 2008 primary and secondary lead standards are met when the maximum arithmetic 3-month mean concentration for a 3-year period, as determined in accordance with 40 CFR part 50, appendix R, is less than or equal to 0.15 μg/m3 at all relevant monitoring sites in the subject area. EPA refers to this maximum rolling three-month average over a three-year period as the “design value.”

40 CFR part 58, appendix A outlines the quality assurance requirements necessary for providing “sufficient information to assess the quality of the monitoring data.” 40 CFR part 58, appendix D provides network design criteria requirements which describe “specific requirements for the number and location of . . . [monitoring] sites for specific pollutants . . .”. Within appendix D, Section 4.5 states that “[a]t a minimum, there must be one source-oriented SLAMS (State and Local Air Monitoring Station) site located to measure the maximum Pb concentration in ambient air resulting from each non-airport Pb source which emits 0.50 or more tons per year. . . .

EPA has reviewed the ambient air monitoring data for the Chicago and Granite City areas in accordance with the provisions of 40 CFR part 50, appendix R, and 40 CFR part 58, appendix A and appendix D. All data considered are complete, quality-assured, certified, and recorded in EPA's Air Quality System (AQS) database.

As defined at 40 CFR 81.314, the Chicago area is comprised of the portions of Cook County that are bounded by Damen Avenue on the west, Roosevelt Road on the north, the Dan Ryan Expressway on the east, and the Stevenson Expressway on the south. According to analysis conducted by Illinois EPA in 2011, the H. Kramer & Co. (H. Kramer) facility was capable of causing exceedances of the NAAQS in the absence of any other sources in the area.1 As described in Illinois EPA's September 22, 2016 submission, after the 2012 shutdown of the Fisk Electric Generating Station, H. Kramer became the only source of lead emissions in the Chicago area. H. Kramer manufactures brass and bronze ingots, and a portion of the facility is devoted to producing metal alloys that often contain lead as a minor constituent.

After Illinois EPA identified H. Kramer as capable of causing exceedances of the NAAQS in the Chicago area, Illinois adopted rules that limit emissions from the H. Kramer facility, and require additional control measures. As discussed in detail below, in this action EPA is approving a request from Illinois EPA to incorporate these rules into the Illinois SIP. Since H. Kramer implemented the controls required by these rules, monitored values of lead in the area have been below the health-based standard.

The Cook County Department of Environmental Control in conjunction with Illinois EPA operates two Federal reference method (FRM) source-oriented SLAMS monitors at 1241 W 19th Street in Chicago, Illinois, which are used to determine whether the Chicago area has attained the 2008 lead NAAQS. In the AQS database, this monitoring site is denoted with site ID 17-031-0110 and the two monitors are denoted with parameter occurrence code (POC) #1 and POC #9. In a rulemaking on August 24, 2015 (80 FR 51127), EPA determined that the Chicago area was attaining the 2008 lead NAAQS, with a design value of 0.05 μg/m3 for the three-year period of 2012-2014. EPA is affirming that determination today with monitoring data from the most recent three-year period of 2014-2016 based on data from the SLAMS monitors identified above.

The data shown in Tables 1 and 2 are complete, quality-assured, and certified and show 0.04 μg/m3 as the highest three-month rolling average, well below the standard of 0.15 μg/m3. The September 22, 2016, submittal from Illinois EPA requested redesignation to attainment based on data from the three-year period of 2013-2015, which showed that the Chicago area was meeting the 2008 lead NAAQS with a design value of 0.04 μg/m3. In this action, EPA is redesignating the Chicago area based on more recent monitoring data for the three-year period of 2014-2016, which also has a design value of 0.04 μg/m3.

EPA's review of this data indicates that the Chicago area has attained and should continue to attain the 2008 lead NAAQS.

As defined at 40 CFR 81.314, the Granite City area is comprised of the portions of Madison County that are bounded by Granite City Township and Venice Township. According to initial analysis conducted by Illinois EPA in 2010, the Mayco Industries LLC (Mayco) facility was one of several sources with lead emissions in the Granite City nonattainment area.3 As described in its September 22, 2016, submission, Illinois EPA conducted further analysis and determined that Mayco was the most significant source of lead emissions in the Granite City area, and was capable of causing exceedances of the NAAQS in the absence of any other sources in the area. Mayco is a secondary lead production facility and a fabricator of several lead-containing products. Mayco manufactures lead shot for ammunition, lead-containing products for naval applications, and lead wool used to create flexible materials for radiation protection.

After Illinois EPA identified Mayco as the primary contributor to the exceedance of the NAAQS in the Granite City area, Illinois adopted rules that limit emissions from the Mayco facility, and require additional control measures. As discussed in detail below, in this action EPA is approving a request from Illinois EPA to incorporate these rules into the Illinois SIP. Since Mayco implemented the controls required by these rules, monitored values of lead in the area have been below the health-based standard.

Illinois EPA operates two FRM source-oriented SLAMS monitors at 15th Street and Madison Avenue in Granite City, Illinois, which are used to determine whether the Granite City area has attained the 2008 lead NAAQS. In the AQS database, this monitoring site is denoted with site ID 17-119-0010 and the two monitors are denoted with POC #1 and POC #9.

The data shown in Tables 3 and 4 are complete, quality-assured, and certified and show 0.04 μg/m3 as the highest three-month rolling average, well below the standard of 0.15 μg/m3. The September 22, 2016, submittal from Illinois EPA requested redesignation to attainment based on data for the three-year period of 2013-2015, which showed that the Granite City area was meeting the 2008 lead NAAQS with a design value of 0.06 μg/m3. In this action, EPA is redesignating the Granite City area based on the more recent monitoring data for the three-year period of 2014-2016, which has a lower design value of 0.04 μg/m3.

EPA's review of this data indicates that the Granite City area has attained and should continue to attain the 2008 lead NAAQS.

With the exception of the emissions inventory requirement under section 172(c)(3), EPA has approved all applicable requirements of the Illinois SIP for the areas under Section 110(k) (EPA action on plan submissions), in accordance with section 107(d)(3)(E)(ii). As discussed below, EPA is approving Illinois' 2012 emissions inventory as meeting the section 172(c)(3) comprehensive emissions inventory requirement as part of this action.

Additionally, the Illinois SIP meets all currently applicable SIP requirements for purposes of redesignation of the Chicago and Granite City areas under section 110 of the CAA (general SIP requirements), and Illinois' submittal meets all SIP requirements applicable under part D of the CAA (plan requirements for nonattainment areas in general), in accordance with section 107(d)(3)(E)(v).

Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, New Source Review (NSR) permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development. EPA has historically referred to SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(2) as “infrastructure SIP” submissions.

Additionally, section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. EPA has historically referred to SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(2)(D) as “transport SIP” submissions.

EPA interprets the “applicable” requirements for an area's designation to be those requirements linked with a particular area's nonattainment designation. Therefore, the section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status, such as the infrastructure SIP elements of section 110(a)(2) and transport SIP submittal requirements under section 110(a)(2)(D), are not applicable requirements for purposes of redesignation. This is because a state remains subject to these requirements after an area is redesignated to attainment, and therefore these requirements are not relevant in evaluating a redesignation request.

EPA has applied this interpretation consistently in many redesignations for decades. See 81 FR 44210 (July 7, 2016) (final redesignation for the Sullivan County, Tennessee area); 79 FR 43655 (July 28, 2014) (final redesignation for Bellefontaine, Ohio lead nonattainment area); 61 FR 53174-53176 (October 10, 1996) and 62 FR 24826 (May 7, 1997) (proposed and final redesignation for Reading, Pennsylvania ozone nonattainment area); 61 FR 20458 (May 7, 1996) (final redesignation for Cleveland-Akron-Lorain, Ohio ozone nonattainment area); and 60 FR 62748 (December 7, 1995) (final redesignation of Tampa, Florida ozone nonattainment area). See also 65 FR 37879, 37890 (June 19, 2000) (discussing this issue in final redesignation of Cincinnati, Ohio 1-hour ozone nonattainment area); 66 FR 53094 (October 19, 2001) (final redesignation of Pittsburgh, Pennsylvania 1-hour ozone nonattainment area).

We have reviewed the Illinois SIP and determined that it meets the general SIP requirements under section 110 of the CAA to the extent those requirements are applicable for purposes of redesignation. EPA has previously approved provisions of Illinois' SIP addressing section 110 requirements (including provisions addressing lead) at 40 CFR 52.745.

Upon approval of Illinois' 2012 emissions inventory for each area, the Illinois SIP will meet the nonattainment area requirements for the Chicago and Granite City areas for purposes of redesignation under part D of the CAA, including the requirements under sections 172 and 176, which are discussed further below.

For purposes of evaluating this redesignation request, the applicable SIP requirements of section 172 are contained in sections 172(c)(1) through (9), which address requirements for nonattainment areas. A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Section 172(c)(1) requires nonattainment plans to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA interprets this requirement to impose a duty on all states to consider all available control measures for all nonattainment areas and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Because the Chicago and Granite City areas have attained the 2008 lead NAAQS, Illinois does not need to address additional measures to provide for attainment, and the requirements under section 172(c)(1) are no longer considered to be applicable so long as the area continues to attain the standard until redesignation. (40 CFR 51.918).

Section 172(c)(2) provides that nonattainment plans must require reasonable further progress (RFP), which is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of the Chicago and Granite City redesignations because the areas have monitored attainment of the 2008 lead NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. The requirement to submit contingency measures under section 172(c)(9) is similarly not applicable for purposes of redesignation. Id.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. In their redesignation request, Illinois submitted inventories of actual lead emissions in 2012 for each source in the Chicago and Granite City areas that may have contributed to an exceedance of the NAAQS. At 40 CFR 51.117, EPA provides a threshold at which lead emissions must be included in an inventory; as shown in Illinois' submittal, no other source in either area emits at or above the threshold level of 0.5 or more tons of lead per year. EPA is approving the 2012 inventories, summarized in Table 5 below, as meeting the section 172(c)(3) emissions inventory requirement for the Chicago and Granite City areas.

Section 172(c)(4) requires nonattainment plans to identify and quantify allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Illinois' current NSR program as meeting the requirements of section 172(c)(4) and 172(c)(5) on May 13, 2003 (68 FR 25504).

Section 172(c)(6) requires nonattainment plans to include enforceable emission limitations, and such other control measures, means or techniques as may be necessary or appropriate to provide for attainment of the standard. Because the areas have reached attainment has been reached, no additional measures are needed to provide for attainment.

Section 172(c)(7) requires nonattainment plans to meet the applicable provisions of section 110(a)(2). As discussed above, the Illinois SIP meets the applicable provisions of section 110(a)(2) for purposes of redesignation.

Section 172(c)(8) allows for equivalent modeling, emission inventory, and planning procedures in certain circumstances upon application by the State, which is not applicable to this action.

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway and transit projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). In light of the elimination of lead additives in gasoline, transportation conformity does not apply to the lead NAAQS. See 73 FR 66964, 67043 n.120. In addition, EPA approved Illinois' general conformity SIP on December 23, 1997 (62 FR 6700).

Upon final approval of Illinois' comprehensive 2012 emissions inventories, EPA will have fully approved the Illinois SIP for the Chicago and Granite City areas under section 110(k) of the CAA for all requirements applicable to the attainment status of the areas. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the September 4, 1992, Processing Requests to Redesignate Areas to Attainment: Policy Memorandum 4 (Calcagni memorandum)); Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures EPA may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Illinois has adopted and submitted, and EPA has fully approved, provisions addressing various required SIP elements under lead standards.

Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. EPA made a final determination of attainment for the Chicago area (also known as a clean data determination) on August 24, 2015 (80 FR 51127). Pursuant to 40 CFR 51.1004(c), EPA's determination that the area has attained the 2008 lead standard suspended the requirement to submit certain planning SIPs related to attainment, including attainment demonstration requirements, the RACM requirements of 172(c)(3), the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures under section 172(c)(9) of the CAA. As discussed above, since EPA's final determination of attainment in 2015, the Chicago area has continued to attain the standard and should remain in attainment. Because in today's rulemaking we are determining that the Granite City area has also attained the standard, EPA is suspending those same requirements under section 172 and 182(b)(1) of the CAA for the Granite City area.

As a result, the only remaining requirement under section 172 to be evaluated is the emissions inventory required under section 172(c)(3). In this action, EPA is approving Illinois' 2012 emissions inventories for the Chicago and Granite City areas as meeting the requirement of section 172(c)(3) of the CAA. No Chicago area or Granite City area SIP provisions regarding lead under Section 172 of the CAA are currently disapproved, conditionally approved, or partially approved.

As part of this action, EPA is approving Illinois EPA's request to modify the Illinois SIP to include the requirements at 35 Ill. Adm. Code Part 226. As discussed below, the rules at 35 Ill. Adm. Code Part 226 place new control requirements and emission limits on lead sources in the Chicago and Granite City areas, and are more stringent than the previous SIP-approved rules. Inclusion of these rules into the SIP means that these requirements are permanent and enforceable.

In developing the proposed SIP revisions, Illinois EPA assessed the practices and processes at the H. Kramer and Mayco facilities that contributed to exceedances of the NAAQS in the Chicago area and Granite City area, respectively. Illinois determined that emissions from the stacks at each facility were not appropriately limited, and that certain parts of the Mayco manufacturing process were not controlled at all. Illinois also determined that fugitive emissions from each facility were a significant factor in the exceedances of the NAAQS, and were caused by a lack of proper enclosure under negative pressure, as well as insufficient housekeeping and cleaning procedures. Illinois structured its new rule to address the specific deficiencies at the H. Kramer and Mayco facilities that contributed to the exceedances of the lead NAAQS.

35 Ill. Adm. Code Part 226, titled “Standards and Limitations for Certain Sources of Lead”, which became effective at the state level on April 21, 2014, applies to nonferrous metal production facilities in the Chicago and Granite City areas. In practice, the rule applies to the H. Kramer and Mayco facilities, which are the only two nonferrous metal production facilities in the areas. The rule provides lead emission standards and requires specific emission controls based on the equipment and manufacturing processes that are used at each facility; requires affected sources to operate under specified state or federal permitting programs; requires that owners or operators of lead emission units install, maintain, and operate monitoring equipment; sets requirements for recording and submitting monitoring data; requires that subject owners or operators operate pressure differential and leak detection systems at all times; requires total enclosure of specified lead emission units when the unit is operating or housekeeping activities are being performed; provides options for measurement of all natural draft openings and the total surface area of the total enclosure; requires inward flow of air through all natural draft openings; requires monthly inspections; requires the owner or operator of a lead emission unit to operate a fugitive dust operating program, and specifies areas, activities, and events subject to this program; provides specific emissions testing requirements; includes specific recordkeeping and reporting requirements, including a requirement to submit semiannual reports to Illinois EPA; and states that records must be maintained for at least five years.

In its September 22, 2016, submission, Illinois EPA showed that the implementation of the requirements of 35 Ill. Adm. Code Part 226 has resulted in a substantial decrease in emissions from the H. Kramer and Mayco facilities. As part of its analysis of these areas, Illinois EPA determined emissions prior to the April 21, 2014, effective date of 35 Ill. Adm. Code Part 226 at each facility based on stack testing. For 2012, the H. Kramer facility reported 200 lbs of emissions, and the Mayco facility reported 903 lbs of emissions. Illinois then conducted modeling to calculate allowable emissions from each facility under 35 Ill. Adm. Code Part 226 for 2014 and future years. Illinois determined that H. Kramer should emit no more than 99.9889 lbs/year, and Mayco should emit no more than 418.2620 lbs/year. This modeling is discussed in detail below. As shown in Table 6, Illinois' modeling shows that the emissions reductions correlate with a decrease in monitored ambient lead levels.

Based on the information provided in its submission, Illinois has demonstrated that the observed air quality improvements in the Chicago and Granite City areas are due to the requirements at 35 Ill. Adm. Code Part 226. Relative to emissions in 2012, Illinois' analysis shows that these requirements result in emission reductions of at least 50% from both H. Kramer in the Chicago area and Mayco in the Granite City area. Furthermore, Illinois believes these emission reduction estimates are conservative because the reductions were calculated based on allowable emissions under the rule, and actual emissions are likely to be lower.6

In conjunction with Illinois' request to redesignate the Chicago and Granite City nonattainment areas to attainment status, Illinois has submitted, as a SIP revision, a plan to provide for maintenance of the 2008 lead NAAQS in the areas through 2030. EPA has reviewed the maintenance plan and finds that it meets the requirements of section 175A of the CAA as explained further below.

Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after EPA approves a redesignation to attainment. Eight years after redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future NAAQS violations.

EPA's September 4, 1992, Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a maintenance plan should address the following items: The attainment emissions inventory, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.

Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni memorandum at 9. Where the modeling method of showing maintenance is used, a state must show that “the future mix of sources and emission rates will not cause a violation of the NAAQS.” Id. Modeling should “contain a summary of the air quality concentrations expected to result from application of the control strategy” and “identify and describe the dispersion model or other air quality model used to project ambient concentrations.” Id.

Illinois developed emissions inventories for lead for 2014, one of the years in the period during which the Chicago and Granite City areas monitored attainment of the 2008 lead standard. Illinois EPA calculated this inventory for the H. Kramer and Mayco facilities based on allowable emissions considering the emission limits and control requirements under 35 Ill. Adm. Code Part 226, and requested that the resulting emissions totals be used to satisfy the maintenance plan requirements of section 175A. This approach is consistent with the modeling that Illinois conducted to show that future emissions of lead will not cause a violation of the NAAQS.

These allowable emissions levels for the 2014 attainment year, summarized in Table 7 below, satisfy the pertinent maintenance plan requirements of section 175A.

Illinois' plan demonstrates maintenance of the 2008 lead standard through 2030 by showing modeled attainment of the standard for projected future emissions, even at the highest levels of emissions allowed by the new rules at 35 Ill. Adm. Code Part 226, which are discussed in detail above.

As clarified by Illinois EPA on February 16, 2017, the Illinois maintenance plan demonstrates how the projected level of emissions from affected sources is sufficient to permanently maintain the lead NAAQS. The maintenance plan relies on a January 9, 2014, submission of emissions inventories and modeling data, as well as a June 17, 2014, submission requesting that EPA add 35 Ill. Adm. Code Part 226 into the Illinois SIP. Illinois EPA modeling shows that these rules, once approved as part of the SIP, should permanently limit emissions to a level at which the 2008 lead NAAQS is maintained for ten years and beyond in the Chicago and Granite City areas.

Illinois EPA conducted this modeling for both areas using EPA's dispersion model, AERMOD, as required at 40 CFR part 51, appendix W. Model output was processed using EPA's LEADPOST software. In undertaking this modeling, Illinois followed relevant EPA guidance, and appropriately considered meteorology, terrain, and stack height.

Based on monitoring data and estimated emissions from nearby sources, the modeling assumes a background lead concentration of 0.02 μg/m3 for both the Chicago and Granite City areas. This assumption is conservative because the most recent monitoring data for the Chicago and Granite City areas show total ambient lead concentrations near this value. The modeling then applies the new rules at 35 Ill. Adm. Code Part 226 to the affected sources in each area, and calculates maximum allowable emissions from these sources. Adding the background concentration to the maximum allowable emissions, Illinois EPA's modeling shows that the maximum three-month rolling average of lead is 0.128253 μg/m3 for the Chicago area and 0.128333 μg/m3 for the Granite City area, which are within the 2008 lead NAAQS standard of 0.15 μg/m3. Because this would be the maximum level of lead emissions allowed under permanent and enforceable SIP-approved rules, Illinois EPA has shown an ability to maintain the NAAQS for ten years and beyond.

Illinois currently operates lead monitors in the Chicago and Granite City area. Illinois' maintenance plan includes a commitment to continue to operate its EPA-approved monitoring network as necessary to demonstrate ongoing compliance with the NAAQS.

Illinois remains obligated to continue to quality-assure monitoring data and enter all data into AQS in accordance with Federal guidelines. Illinois has committed to using these data, supplemented with additional information as necessary, to assure that the area continues to attain the standard. Illinois will also continue to develop and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (67 FR 39602, June 10, 2002) to track future levels of emissions. Both of these actions will help to verify continued attainment in accordance with 40 CFR part 58.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.

Illinois' contingency plan is triggered when there is a violation of the lead NAAQS occurring after redesignation to attainment. Within six months of certification of monitoring data showing an exceedance of the NAAQS, Illinois will complete a comprehensive study to determine the cause or causes of the violation, and the control measure or measures necessary to mitigate the problem. This study will consider the number, location, and severity of the violations; the weather patterns contributing to high concentrations of lead; contributing emissions sources; emissions trends, including timeliness of implementation of scheduled control measures; current and recently-identified control technologies; and air quality contributions from outside the maintenance area.

If the study shows that additional controls of sources within the area is appropriate, the Illinois contingency plan is to incrementally lower emission limits and implement associated measures at the unit or units that are shown to be the cause or causes of the NAAQS violation. The selection of measures will be based upon several factors, including emissions reduction potential, timing of implementation, and social considerations. Illinois EPA will solicit input from interested and affected parties prior to selecting the appropriate measures. The process will include publication for notices, an opportunity for public hearing, and other actions required by Illinois law.

Illinois' contingency measures, as well as the commitment to implement SIP requirements as necessary, satisfy the pertinent requirements of section 175A(d).

As required by section 175A(b) of the CAA, Illinois committed to submit to EPA an updated lead maintenance plan eight years after redesignation of the Chicago and Granite City areas to cover an additional ten-year period beyond the initial ten-year maintenance period.

For the reasons set forth above, EPA is approving, as a SIP revision, Illinois' 2008 lead NAAQS maintenance plan for the Chicago and Granite City areas because the plan meets the requirements of CAA section 175A.

Approval of this redesignation request changes the official designation of the Chicago, Illinois and Granite City, Illinois areas for the 2008 lead NAAQS, found at 40 CFR part 81, from nonattainment to attainment. This action also approves, as revisions to the Illinois SIP, the rules at 35 Ill. Adm. Code Part 226, the maintenance plan for the 2008 lead standard in the Chicago and Granite City areas, and Illinois' 2012 emissions inventories for the Chicago and Granite City areas pursuant to section 172(c)(3) of the CAA.

As discussed above, section 172(c)(3) of the CAA requires areas to submit a comprehensive emissions inventory including all lead sources in the nonattainment area. EPA is approving the Illinois 2012 emissions inventories outlined in Table 5 for the Chicago and Granite City areas as fulfilling this requirement.

In its September 22, 2016, submission, Illinois EPA requested that EPA approve 35 Ill. Adm. Code Part 226 as a revision to the Illinois SIP as control measures to maintain attainment in the Chicago and Granite City areas. As discussed above, these rules control emissions from lead sources, specifically at the H. Kramer and Mayco facilities, and inclusion of these rules into the SIP makes these measures permanent and enforceable. In today's action, EPA is approving Illinois' request to modify the SIP to include these rules.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 18, 2017 without further notice unless we receive relevant adverse written comments by November 17, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 18, 2017.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Illinois Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 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 State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

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 18, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR parts 52 and 81 are amended as follows:

A summary of the Commission's Report and Order, ET Docket No. 15-99, FCC 17-33, adopted March 27, 2017, and released March 29, 2017, was published in the Federal Register on June 14, 2017 (82 FR 27178). This document specifies an applicability date of July 14, 2017 for the amendments to 47 CFR 2.106 NG8, 80.203(p), and 80.357(b)(1) in FCC 17-33, and corrects the amendatory instructions so the revisions to 47 CFR 90.103(b) in FCC 17-33 can be incorporated in the final regulations.

Accordingly, 47 CFR parts 2, 80, and 90 are corrected by making the following correcting amendments:

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

The 2017 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,463 metric tons (mt), 5,490 mt, and 16,117 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 46422, October 5, 2017). The 2017 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,843 mt, 11,106 mt and 11,789 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 46422, October 5, 2017).

The Norton Sound Economic Development Corporation has requested that NMFS exchange 175 mt of flathead sole CDQ reserves and 180 mt of rock sole CDQ reserves for 355 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 175 mt of flathead sole CDQ reserves and 180 mt of rock sole CDQ reserves for 355 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017), and revised by flatfish exchange (82 FR 46422, October 5, 2017), are further revised as follows:

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Norton Sound Economic Development Corporation in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 10, 2017.

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

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