Federal Register Vol. 82, No.206,

This rule, affecting 7 CFR part 1217, is authorized under the Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This rule establishes a de minimis quantity exemption threshold under the Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order), codified at 7 CFR part 1217. This part is administered by the Softwood Lumber Board (Board) with oversight by USDA's Agricultural Marketing Service (AMS). In Resolute Forest Products Inc., v. USDA, et al. (Resolute), the court found that, on the basis of the estimates and information submitted by the government to the court for review, the selection of 15 mmbf as the de minimis quantity (to be exempted) under part 1217 was arbitrary and capricious and that part 1217 was therefore promulgated unlawfully. The court did not vacate (or terminate) part 1217; the court remanded the matter to USDA and program requirements remain in effect.

To address the court's decision, USDA conducted a new analysis to determine a reasonable and appropriate de minimis quantity exemption. USDA analyzed various thresholds of exemption: 10, 15, 20, 25, and 30 mmbf. USDA also considered proposing no de minimis exemption. USDA's analysis of the data resulted in a determination that a de minimis level of 15 mmbf is reasonable and appropriate. The analysis was published in a proposed rule on May 30, 2017 (82 FR 24583). This final rule establishes the de minimis quantity threshold under part 1217 at 15 mmbf.

The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include the products of forestry, which includes softwood lumber.

The 1996 Act provides for a number of optional provisions that allow the tailoring of orders for different commodities. Section 516 of the 1996 Act provides permissive terms for orders. Section 516 states that an order may include an exemption of de minimis quantities of an agricultural commodity. Further, section 516(g) of the 1996 Act provides authority for other action that is consistent with the purpose of the statute and necessary to administer a program.

The softwood lumber program took effect in August 2011 (76 FR 46185) and assessment collection began in January 2012. Under part 1217, assessments are collected from domestic (U.S.) manufacturers and importers and are used by the Board for projects that promote market growth for softwood lumber products used in single and multi-family dwellings as well as commercial construction. The Board is composed of 19 industry members (domestic manufacturers and importers) who are appointed by the Secretary of Agriculture. The purpose of the program is to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States.

The term `domestic manufacturer' is defined in § 1217.8 to mean any person who is a first handler engaged in the manufacturing, sale and shipment of softwood lumber in the United States during a fiscal period and who owns, or shares in the ownership and risk of loss of manufacturing of softwood lumber or a person who is engaged in the business of manufacturing, or causes to be manufactured, sold and shipped such softwood lumber in the United States beyond personal use. The term does not include persons who re-manufacture softwood lumber that has already been subject to assessment. The term `manufacture' is defined in § 1217.13 to mean the process of transforming (or turning) softwood logs into softwood lumber.

Domestic manufacturers are essentially sawmills that turn softwood logs into lumber. A domestic manufacturer may be a company that is a single sawmill, or it may be a company that is composed of multiple sawmills.

The term `importer' is defined in § 1217.11 to mean any person who imports softwood lumber from outside the United States for sale in the United States as a principal or as an agent, broker, or consignee of any person who manufactures softwood lumber outside the United States for sale in the United States, and who is listed in the import records as the importer of record for such softwood lumber. Import records are maintained by the U.S. Customs and Border Protection (Customs or CBP). Both domestic manufacturers and importers may be referred to in this rulemaking as “entities.”

Pursuant to § 1217.50, the Board is authorized to incur expenses for research and promotion projects as well as administration. The Board's expenses are paid by assessments upon domestic manufacturers and importers. Pursuant to § 1217.52(b), and subject to the exemptions specified in § 1217.53, each domestic manufacturer and importer must pay an assessment to the Board at the rate of $0.35 per thousand board feet of softwood lumber, except that no entity has to pay an assessment on the first 15 mmbf of softwood lumber otherwise subject to assessment in a fiscal year. Domestic manufacturers pay assessments based on the volume of softwood lumber shipped within the United States and importers pay assessments based on the volume of softwood lumber imported to the United States. Pursuant to paragraphs (d) and (j) in § 1217.52, respectively, domestic manufacturers and importers who pay their assessments to the Board must do so no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was shipped or imported.

Section 1217.53 prescribes exemptions from assessment. Pursuant to paragraph (a) of that section, the original de minimis quantity exemption threshold under part 1217 was 15 mmbf. Thus, U.S. manufacturers and importers that domestically ship and/or import less than 15 mmbf feet annually have been exempt from paying assessments. Domestic manufacturers and importers that ship or import less than the de minimis quantity of softwood lumber must apply to the Board each year for a certificate of exemption and provide documentation as appropriate to support their request.

Pursuant to paragraph (b) of § 1217.53, domestic manufacturers and importers that ship or import 15 mmbf or more annually do not pay assessments on their first 15 mmbf domestically shipped or imported. This exemption is intended for the purpose of creating an equality amongst those within the industry with regard to the program's assessment. Just as those that manufacture or import under 15 mmbf do not have to pay assessments, those at or above this level may reduce their assessable volume by 15 mmbf.1 For example, an entity that ships or imports 20 mmbf annually only has to pay assessments on 5 mmbf of softwood lumber. This exemption creates fairness; it levels the playing field because all entities, regardless of size, do not have to pay assessments on their first 15 mmbf shipped or imported. For purposes of this document, this exemption is referred to as the “equity exemption.” Pursuant to paragraphs (c) and (d) of § 1217.53, respectively, exports of softwood lumber from the United States and organic softwood lumber are also exempt from assessment.

Pursuant to § 1217.70, domestic manufacturers and importers who pay their assessments directly to the Board must submit with their payment a report that specifies the quantity of softwood lumber domestically shipped or imported. Pursuant to § 1217.71, all domestic manufacturers and importers must maintain books and records necessary to verify reports for a period of 2 years beyond the fiscal year to which they apply, including those exempt. These records must be made available during normal business hours for inspection by Board staff or USDA.

The original 15 mmbf quantity exemption threshold is referenced in other Order provisions. Section 1217.40 specifies that the Board is composed of domestic manufacturers and importers who domestically ship or import 15 mmbf or more of softwood lumber annually. Section 1217.41 specifies that persons interested in serving on the Board must also domestically ship or import 15 mmbf or more softwood lumber annually. Finally, § 1217.101 regarding referendum procedures specifies that eligible domestic manufacturers and importers that can vote in referenda must domestically ship or import 15 mmbf or more of softwood lumber annually.

The softwood lumber program was implemented after notice and comment rulemaking and a May 2011 referendum demonstrating strong support for the program. Pursuant to § 1217.81(a), the program had to pass by a majority of those voting in the referendum who also represented a majority of the volume voted. Sixty-seven percent of the entities who voted, who together represented 80 percent of the volume, in the referendum favored implementation of the program. Entities that domestically shipped or imported 15 mmbf or more of softwood lumber annually were eligible to vote in the referendum. As previously mentioned, the program took effect in August 2011 and assessment collection began in January 2012.

The softwood lumber program has continued to operate at the 15 mmbf exemption threshold since its inception. During these years, the Board has funded a variety of activities designed to increase the demand for softwood lumber. The Board funded a U.S. Tall Wood Building Prize Competition that is helping to showcase the benefits of building tall structures with wood. The Board also funds research on wood standards; a communications program, which includes continuing education courses for architects and engineers; and a construction and design program that provides technical support to architects and structural engineers about using wood.

The Secretary has authority under section 516 of the 1996 Act to exempt any de minimis quantity of an agricultural commodity otherwise covered by an order: “An order issued under this subchapter may contain . . . authority for the Secretary to exempt from the order any de minimis quantity of an agricultural commodity otherwise covered by the order. . . .” 7 U.S.C. 7415(a). A de minimis quantity exemption allows an industry to exempt from assessment small entities that could be unduly burdened from an order's requirements (i.e., assessment and quarterly reporting obligations). Because the 1996 Act does not prescribe the methodology or formula for computing a de minimis quantity, the Secretary has discretion to determine a reasonable and appropriate quantity and establish this level through notice and comment rulemaking. Pursuant to section 525 of the 1996 Act, 7 U.S.C. 7424, the Secretary may issue such regulations as may be necessary to carry out an order.

In evaluating the merits of a de minimis quantity for the softwood lumber program, USDA considered several factors. These factors include: an estimate of the total quantity of softwood lumber covered under part 1217 (quantity assessed and quantity exempted); available funding to support a viable program; free rider implications; and the impact of program requirements on entities (above and below a de minimis threshold). USDA reviewed such factors in light of all available data and information to determine whether a de minimis quantity is reasonable. USDA balanced the multiple factors to assess whether one exemption threshold would work better than another when the factors are considered collectively. The analysis was based on the current assessment rate of $0.35 per thousand board feet.2

The following tables are republished from USDA's analysis of the de minimis quantity under the softwood lumber program contained in the May 2017 proposed rule (82 FR 24583).

Table 1 shows the estimate of the supply of U.S. softwood lumber used in the analysis, accounting for both U.S. shipments and imports. U.S. shipments were estimated using capacity3 data from Forest Economic Advisors (FEA). Total imports was estimated using data from CBP.

Table 2 shows assessable volume and revenue at exemption levels of 30, 25, 20, 15 and 10 mmbf, as well as with no exemptions. The table accounts for both the de minimis and equity exemptions under part 1217, and an assessment rate of $0.35 per thousand board feet.

The substance of these special conditions has been subject to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable.

In addition, since the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received, the FAA finds it unnecessary to delay the effective date and finds that good cause exists for adopting these special conditions 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 December 19, 2014, Boeing applied for a type certificate design change to Type Certificate (TC) No. T00001SE to install high-wall suites in the passenger compartment of Boeing Model 777-300ER airplanes.

The Model 777 series airplane is a swept-wing, conventional-tail, twin-engine, turbofan- powered, transport-category airplane. The airplane has seating for 365 passengers and a maximum takeoff weight of 775,000 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-300ER airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00001SE 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 777-300ER 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 type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified 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 777-300ER 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 777-300ER airplane will incorporate the following novel or unusual design features:

A passenger cabin with six high-wall suites arranged in two rows of three suites each.

The Boeing Model 777-300ER airplane will include, as a customer option, a passenger cabin with six high-wall suites arranged in two rows of three suites each, in a 1-1-1 configuration. The suites have doors and walls that are taller than has been previously certified by the FAA on Boeing 777 series airplanes. The walls extend from the floor to the ceiling or close to the ceiling.

The characteristics of the suite design are unique such that the suites are not fully open to the cabin, as are conventional mini-suites with partial-height surrounds, and they are not remote from the main cabin, as are overhead crew rests. Likewise, unique but suitable fire-protection requirements for smoke detection and firefighting are needed for this configuration. Furthermore, the proposed suite design necessitates the development of additional conditions that do not currently exist within associated airworthiness standards, including, but not limited to, alerting and lighting when oxygen masks are needed, crew procedures for managing hazards and suite occupants, and maintaining cabin-egress route dimensions after deformations of the walls and seats.

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 777-300ER airplane with high-wall, single-occupant suites with doors installed. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating 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 series of airplane. It is not a rule of general applicability.

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 777-300ER airplanes.

Note: In these special conditions, “suite” means high-wall suite.

1. Where suites are installed, a supplemental oxygen system must provide the following:

a. The supplemental oxygen system for each suite must include a minimum of two oxygen masks and meet the same 14 CFR part 25 regulations as do the supplemental oxygen system for the main passenger-cabin occupants.

b. An aural alert to warn occupants and to indicate the need to don oxygen masks in the event of decompression. The aural alert must activate concurrently with deployment of the oxygen masks in the main passenger cabin.

c. The illumination level of the normal suite lighting system must be activated automatically and must be sufficient for each occupant to locate a deployed oxygen mask.

d. If a chemical oxygen generator is used as the oxygen supply source, the suite oxygen installation must meet §§ 25.795(d) and 25.1450.

2. A smoke-detection or fire-detection system (or systems) must be provided that monitors each occupiable space within the suite. Flight tests must be conducted to show compliance with this requirement. If a fire occurs, each system (or systems) in the affected suite 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 suite area where detection has occurred.

c. A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight.

3. Passenger-management procedures must be provided should occupants need to be moved in the event of smoke detection, or firefighting within the suite or where suites are installed:

a. A limitation must be included in the airplane flight manual (AFM) or other suitable means requiring that crewmembers be trained in the suite passenger-management procedures.

b. Approved procedures describing methods for suite passenger management must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

4. The design of each suite, and the location of the firefighting equipment where suites are installed, must allow the crewmembers to conduct effective firefighting in the suite. For a manual, hand-held extinguishing system (designed as the sole means to fight a fire) for the suite:

a. A limitation must be included in the AFM or other suitable means requiring that crewmembers be trained in the firefighting procedures.

b. Each suite design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the suite compartment.

c. The time for a crewmember in the main passenger cabin to react to the fire alarm and gain access to the suite must not exceed the time it would take for the compartment to become filled with smoke, thus making it difficult to locate the fire source(s).

d. Approved procedures describing methods for searching the suite compartment for fire source(s) must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

5. A means must be provided to prevent hazardous quantities of smoke or extinguishing agent originating in each suite from entering any other occupiable compartments.

a. Small quantities of smoke may penetrate from the suite into other occupied areas during the one-minute smoke detection time.

b. Hazardous quantities of smoke may not enter any occupied compartment during access to manually fight a fire in the suite. A small amount of smoke may enter the occupied compartments while a firefighter enters and exits the suite, and is not considered hazardous provided the smoke dissipates quickly.

c. Flight tests must be conducted to show compliance with this requirement.

6. If waste-disposal receptacles are fitted in the suite, the suite must be equipped with an automatic fire-extinguishing system that meets the performance requirements of § 25.854(b).

7. Each stowage compartment in the suite must be completely enclosed. All enclosed stowage compartments within the suite compartment that are not limited to stowage of emergency equipment or airplane- supplied equipment (i.e., bedding) must meet the design criteria described in the table below. Enclosed stowage compartments greater than 57 feet 3 inches cubic interior volume are not permitted by these special conditions.

8. Where suites are installed, the design of each suite must:

a. Maintain minimum main aisle(s), cross aisle(s), and passageway(s) requirements of § 25.815 when subjected to the ultimate inertia forces listed in § 25.561(d).

b. Prevent structural failure or deformation of components that could block access to the available evacuation routes (e.g., seats, doors, contents of stowage compartments, etc.).

9. In addition to the requirements of § 25.562 for seat systems, which are occupiable during taxi, takeoff, and landing, the suite structure must be designed for the additional loads imposed by the seats as a result of the conditions specified in § 25.562(b).

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on May 2, 2017 (82 FR 20450). The NPRM was prompted by reports of skin doublers that disbonded from their skin panels. The NPRM proposed to require repetitive inspections of fuselage skin panels, and applicable on-condition actions. We are issuing this AD to detect and correct disbonded skin panels, which could result in fuselage skin cracking, rapid decompression, and loss of structural integrity of the airplane.

We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE does not affect the ability to accomplish the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) and added paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative methods of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Boeing requested that the “Explanation of Certain Compliance Times” section in the preamble of the NPRM be revised to clarify that only disbonded skin panels need to be replaced. Boeing noted that, if a panel is disbonded, it is considered a suspect panel that went through improper processing during the phosphoric acid anodization phase of manufacturing. Boeing stated that the suspect panel could develop an additional disbond, which could lead to further damage, and then the inspections described in the service information might not be adequate.

We acknowledge the commenter's request to clarify that only disbonded skin panels need to be replaced, for the reasons provided by the commenter. We agree with the rationale for the request. However, the “Explanation of Certain Compliance Times” section only appears in the preamble of the NPRM and is not carried over into this final rule; therefore, no change to this final rule is necessary regarding this issue.

Qantas requested that we include previously accomplished repairs as terminating actions in paragraph (i) of the proposed AD. Qantas requested that paragraph (i) of the proposed AD be revised to include a provision for previously installed repairs (solid skin panel replacements) that were approved by an authorized representative of the Boeing Commercial Airplanes Organization Designation Authorization (ODA) via FAA Form 8110-3, “Statement of Compliance with the Federal Aviation Regulations.” Qantas stated that Boeing ODA-approved repairs completed prior to issuance of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, were not addressed in the NPRM. Qantas also suggested that solid skin panel replacements approved via FAA Form 8100-9, “Statement of Compliance with Airworthiness Standards,” be included as terminating action. Qantas stated that including skin panel replacements approved via FAA Form 8100-9 as terminating action could help avoid operators' requests for AMOCs. In addition, Qantas recommended that the language used for approved repairs by an authorized representative of the Boeing ODA be revised, as it is not specific to FAA Form 8110-3 or FAA Form 8100-9.

We agree with the commenter's request. Paragraph (i)(1) of this AD (paragraph (i) of the proposed AD) addresses previously installed repairs approved by an authorized representative of the Boeing ODA. Existing Boeing ODA-approved repairs or preventative modifications are included in notes in Part 1, Part 2, and Part 8 of the Accomplishment Instruction and in note (a) to tables 1 through 8 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016. Note (a) states, “If any Boeing ODA approved preventative modification or repair was previously installed via FAA Form 8100-9 or [structural repair manual] SRM repair doubler (except disbond repair), initial and repeat inspections are not required at the repaired location only.”

However, repairs that were not approved by the Boeing ODA and replacements not done using Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, were not addressed in the proposed AD. Therefore, we have redesignated paragraph (i) (in the proposed AD) as paragraph (i)(1) and added paragraph (i)(2) to this AD to state that any skin panel replacement done before the effective date of this AD terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the replacement was done using a skin panel manufactured on or after April 1, 1997, and the replacement was done using an FAA-approved method. A replacement accomplished using an FAA-approved method would still address the unsafe condition and the need for the inspections required by paragraph (g) of this AD would be terminated.

We have also added paragraph (i)(3) to this AD to state that any FAA-approved reinforced repair doubler (except disbond repair) installed before the effective date of this AD terminates the inspections required by paragraph (g) of this AD at the repaired location only.

Southwest Airlines (SWA) requested that we allow the terminating action specified in paragraph (i) of the proposed AD to terminate the initial inspections in paragraph (g) of the proposed AD and not only the repetitive inspections in paragraph (g) of the proposed AD. Specifically, SWA requested that paragraph (i) of the proposed AD be revised to include the provision that replacement of any skin panel in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as specified in paragraph (h)(2) of the proposed AD, terminates the requirement for the initial inspection specified in paragraph (g) of the proposed AD, for the replaced skin panel only. SWA noted that an operator could replace a skin panel prior to doing the initial inspection specified in paragraph (g) of the proposed AD, therefore the operator would not be required to do the initial or repetitive inspections specified in paragraph (g) of the proposed AD.

We agree with the commenters' requests. We have clarified paragraph (i)(1) of this AD (paragraph (i) of the proposed AD) to state that accomplishment of any skin panel replacement using a skin panel manufactured on or after April 1, 1997, terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the replacement is done as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD.

SWA requested that paragraph (j) of the proposed AD be revised to include a provision that replacement of skin panels, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of the proposed AD, terminates all of the requirements of AD 2003-14-06, Amendment 39-13225 (68 FR 40759, July 9, 2003; corrected July 21, 2003 (68 FR 42596) (“AD 2003-14-06”)). SWA noted that an operator could replace a skin panel prior to doing the initial inspection specified in paragraph (g) of the proposed AD; therefore, the operator would not be required to do the initial or repetitive inspections specified in paragraph (g) of the proposed AD, and all of the requirements of AD 2003-14-06 would be terminated.

We agree with the commenter's request. We redesignated paragraph (j) in the proposed AD as paragraph (j)(1) and added paragraph (j)(2) to this AD to include a statement that replacement of any skin panel with a skin panel manufactured on or after April 1, 1997, as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD, terminates all of the requirements of AD 2003-14-06 for that skin panel only.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016. The service information describes procedures for repetitive inspections of fuselage skin panels for cracking, corrosion, and existing disbond repairs; and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 169 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary on-condition actions that will be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these on-condition actions:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The NPRM published in the Federal Register on June 2, 2017 (82 FR 25556) (“the NPRM”). The NPRM was prompted by reports of fuel leaks in the engine and APU EFP cartridge/canister electrical connectors and conduits. The NPRM proposed to require repetitive inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct fuel leaks in certain fuel pumps to remove a potential fuel ignition hazard.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-32R1, dated October 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0521.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response.

Request To Delay Issuance Until the Release of New Service Information

Bombardier, Inc., indicated its intent to revise Bombardier Service Bulletin 604-28-022, dated October 19, 2015; and Bombardier Service Bulletin 605-28-010, dated October 19, 2015. Bombardier, Inc., stated that these revisions will change the inspection instructions. Bombardier, Inc., further added that it plans to publish new service information to introduce similar inspections on Model CL-650 airplanes.

We infer that Bombardier, Inc., is requesting that we delay the issuance of this final rule until after the revised service information is released and then refer to the revised service information. We disagree with the commenter's request. We do not consider that delaying this action until release of the planned service information is warranted since the service information incorporated by reference in this AD adequately addresses the unsafe condition. We might consider additional rulemaking once the revised service information is released, or if new service information is issued for Model CL-650 airplanes, which are not included in the applicability of this AD. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Bombardier, Inc., has issued Service Bulletin 604-28-022, dated October 19, 2015; and Service Bulletin 605-28-010, dated October 19, 2015. This service information describes procedures for repetitive general visual inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. These documents are distinct since they apply to airplanes in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 121 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

For Model CL-600-2B16 airplanes having serial numbers 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981, we estimate the following costs to do any necessary replacements that would be required based on the results of the required inspection. We have no way of determining the number of aircraft that might need these replacements:

Legal Authority

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

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

Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.2 The Administrator transmitted notice of his intent to place ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I on a temporary basis to the Assistant Secretary for Health of HHS by letter. Notice for these actions was transmitted on the following dates: May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl). The Assistant Secretary responded by letters dated June 9, 2017 (ortho-fluorofentanyl) and July 14, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), and advised that based on review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications or approved new drug applications for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl. The Assistant Secretary also stated that the HHS has no objection to the temporary placement of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl into Schedule I of the CSA. The DEA has taken into consideration the Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl under section 505 of the FDCA, 21 U.S.C. 355. The DEA has found that the control of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, and as required by 21 U.S.C. 811(h)(1)(A), a notice of intent to issue a temporary order to schedule ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl was published in the Federal Register on September 12, 2017. 82 FR 42754.

To find that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

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

Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, summarized below, indicate that these synthetic opioids have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis, and the Assistant Secretary's June 9, 2017 and July 14, 2017 letters are available in their entirety under the tab “Supporting Documents” of the public docket of this action at www.regulations.gov under FDMS Docket ID: DEA-2017-0005 (Docket Number DEA-473).

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

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

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

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

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

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

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

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

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

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

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl indicate that these substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through letters dated May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), notified the Assistant Secretary of the DEA's intention to temporarily place these substances in Schedule I. A notice of intent was subsequently published in the Federal Register on September 12, 2017. 82 FR 42754.

In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein sets forth the grounds for his determination that it is necessary to temporarily schedule ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I of the CSA, and finds that placement of these synthetic opioids into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety.

Because the Administrator hereby finds it necessary to temporarily place these synthetic opioids into Schedule I to avoid an imminent hazard to the public safety, this temporary order scheduling ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl is effective on the date of publication in the Federal Register, and is in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2).

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

Upon the effective date of this temporary order, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl will become subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of Schedule I controlled substances including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be registered with the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958 and in accordance with 21 CFR parts 1301 and 1312, as of October 26, 2017. Any person who currently handles ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, and is not registered with the DEA, must submit an application for registration and may not continue to handle ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl as of October 26, 2017, unless the DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of Schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of these substances in a manner not authorized by the CSA on or after October 26, 2017 is unlawful and those in possession of any quantity of these substances may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person who does not desire or is not able to obtain a Schedule I registration to handle ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, must surrender all quantities of currently held ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl.

3. Security. ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are subject to Schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), and in accordance with 21 CFR 1301.71-1301.93, as of October 26, 2017.

4. Labeling and packaging. All labels, labeling, and packaging for commercial containers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be in compliance with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. Current DEA registrants shall have 30 calendar days from October 26, 2017, to comply with all labeling and packaging requirements.

5. Inventory. Every DEA registrant who possesses any quantity of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl on the effective date of this order must take an inventory of all stocks of these substances on hand, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

6. Records. All DEA registrants must maintain records with respect to ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR parts 1304, and 1312, 1317 and § 1307.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all recordkeeping requirements.

7. Reports. All DEA registrants who manufacture or distribute ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of October 26, 2017.

8. Order Forms. All DEA registrants who distribute ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of October 26, 2017.

9. Importation and Exportation. All importation and exportation of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be in compliance with 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312 as of October 26, 2017.

10. Quota. Only DEA registered manufacturers may manufacture ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of October 26, 2017.

11. Liability. Any activity involving ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl not authorized by, or in violation of the CSA, occurring as of October 26, 2017, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

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

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

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

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

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

As noted above, this action is an order, not a rule. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. However, if this were a rule, pursuant to the Congressional Review Act, “any rule for which an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the federal agency promulgating the rule determines.” 5 U.S.C. 808(2). It is in the public interest to schedule these substances immediately to avoid an imminent hazard to the public safety. This temporary scheduling action is taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie 21 U.S.C. 811(h), that is, the DEA's need to move quickly to place these substances into Schedule I because it poses an imminent hazard to the public safety, it would be contrary to the public interest to delay implementation of the temporary scheduling order. Therefore, this order shall take effect immediately upon its publication. The DEA has submitted a copy of this temporary order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808 because, as noted above, this action is an order, not a rule.

For the reasons set out above, the DEA amends 21 CFR part 1308 as follows:

The final and temporary regulations that are the subject of these corrections are §§ 1.871-15, 1.871-15T, 1.1441-1, 1.1441-2, 1.1441-7, and 1.1461-1, promulgated under sections 871(m) and 7805 of the Internal Revenue Code. These regulations affect foreign persons that hold certain financial products providing for payments that are contingent upon or determined by reference to U.S. source dividends, as well withholding agents with respect to dividend equivalents and certain other parties to section 871(m) transactions and their agents.

As published, TD 9815 contains errors that may prove to be misleading and are in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

The Village of Islamorada Florida with concurrence of Florida Department of Transportation, the bridge owner, has requested a temporary change in the operating regulation for the Snake Creek Bridge on US Highway 1 crossing Snake Creek in Islamorada, Florida. The bridge has a vertical clearance of 27 feet in the closed position. With the passing of Hurricane Irma, the lower Keys have been devastated. With this increased time between openings, this deviation will allow a more uninterrupted flow of vehicle traffic carrying restorative supplies into the lower Keys without severely hindering vessel traffic. The Snake Creek Drawbridge currently operates under 33 CFR 117.331.

The deviation period is from 7 a.m. on September 29, 2017 to 7 a.m. on November 1, 2017. During this period, the bridge will open on signal, except that from 7 a.m. to 7 p.m. the draw need only open every two hours, on the hour.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

On August 22, 2017, the Coast Guard published a temporary deviation entitled, “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Indian River, Titusville, FL” in the Federal Register (82 FR 39665). Under that temporary deviation, from 8 a.m. on August 17, 2017 to 4 p.m. on September 26, 2017, the bridge would remain closed to navigation from 8 a.m. to noon and from 1 p.m. to 4 p.m., Monday through Friday. The bridge owner, NASA, has requested an extension of time for the temporary deviation from the operating schedule that governs the NASA Railroad Bridge (Jay Jay Bridge) to complete bridge repairs, due to delays and storm damage related to Hurricane Irma. The bridge is a single leaf bascule railroad bridge with a seven foot vertical clearance in the closed position. The normal operating schedule for the bridge is found in 33 CFR 117.261(j).

The deviation period is from 8 a.m. on September 27, 2017 to 4 p.m. on October 31, 2017. During this period, the bridge is allowed to remain closed to navigation from 8 a.m. to noon and from 1 p.m. to 4 p.m., Monday through Friday.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

I. Background

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources. On March 21, 2011 (76 FR 15372), EPA promulgated SSI unit new source performance standards, 40 CFR part 60, subpart LLLL, and emission guidelines, subpart MMMM. The designated facilities to which the EG apply are existing SSI units that: (1) Commenced construction on or before October 14, 2010; (2) that meet the definition of a SSI unit as defined in § 60.5250; and (3) are not exempt under § 60.5065.

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Also, 40 CFR part 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (i.e., negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a 111(d)/129 plan.

Philadelphia AMS has determined that there are no SSI units subject to the requirements of Sections CAA 111(d) and 129 of the CAA in their respective air pollution control jurisdiction. Accordingly, Philadelphia AMS submitted a negative declaration letter to EPA certifying this fact on March 28, 2012. The negative declaration letter and EPA's technical support document for this action are available in the docket for this the docket for this rulemaking and available online at www.regulations.gov.

In this direct final action, EPA is amending part 62 to reflect receipt of the negative declaration letter from Philadelphia AMS. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the revision if adverse comments are filed. This rule will be effective on December 26, 2017 without further notice unless EPA receives adverse comment by November 27, 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely notifies the public of EPA receipt of a negative declaration from an air pollution control agency without any existing SSI units in their jurisdiction. This action imposes no requirements. Accordingly, EPA certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves the negative declaration for existing SSI units from the Philadelphia AMS and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to approve or disapprove a CAA section 111(d)/129 plan negative declaration submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a CAA section 111(d)/129 negative declaration, to use VCS in place of a section 111(d)/129 negative declaration that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 26, 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 approving a negative declaration submitted by Philadelphia AMS for SSI units may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 62 is amended as follows:

Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Background information. On December 27, 2016, the EPA proposed revisions to the POTW NESHAP based on our RTR. In this action, we are finalizing decisions and revisions for the rule. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in Response to Public Comments on the EPA's Residual Risk and Technology Review for the Publicly Owned Treatment Works Source Category in Docket ID No. EPA-HQ-OAR-2016-0490. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket.

Organization of this document. The information in this preamble is organized as follows:

Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. The standards are directly applicable to the affected sources. Federal, state, local, and tribal governments are affected as discussed below. By definition, a POTW is owned by a municipality, state, intermunicipal or interstate agency, or any department, agency, or instrumentality of the federal government (see 40 CFR 63.1595 of subpart VVV). To determine whether your facility is affected, you should examine the applicability criteria in the POTW NESHAP. Specifically, if a POTW is a Group 2 POTW 1 that is a major source of hazardous air pollutant (HAP) emissions or a Group 1 POTW regardless of the HAP emissions, and the POTW meets the criteria for development and implementation of a pretreatment program according to 40 CFR 403.8, then the POTW is affected by these standards. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the Internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at http://www.epa.gov/stationary-sources-air-pollution/publicly-owned-treatment-works-potw-national-emission-standards. Following publication in the Federal Register, the EPA will post the Federal Register version and key technical documents at this same Web site.

Additional information is available on the RTR Web site at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. This information includes an overview of the RTR program, links to project Web sites for the RTR source categories, and detailed emissions and other data we used as inputs to the risk assessments.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 26, 2017. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC South Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.

For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.

In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).2 For more information on the statutory authority for this rule, see the proposed rule published on December 27, 2016 (81 FR 95352).

The EPA promulgated the NESHAP for the POTW source category (henceforth referred to as the “POTW NESHAP”) on October 26, 1999 (64 FR 57572). The standards are codified at 40 CFR part 63, subpart VVV. The POTW NESHAP was amended on October 21, 2002 (67 FR 64742). As amended in 2002, the POTW source category consists of new and existing POTW treatment plants that are located at a POTW that is a major source of HAP emissions and that meets the criteria for development and implementation of a pretreatment program as defined by 40 CFR 403.8 under the Clean Water Act (CWA). Additional information about the National Pretreatment Program can be found in the December 27, 2016, RTR proposal (81 FR 95374). The source category covered by this MACT standard currently includes thirteen facilities.

As used in this regulation, the term POTW refers to both any POTW that is owned by a state, municipality, or intermunicipal or interstate agency and, therefore, eligible to receive grant assistance under the Subchapter II of the CWA, and any federally owned treatment works as that term is described in section 3023 of the Solid Waste Disposal Act. For more information see the December 27, 2016, RTR proposal (81 FR 95352). The source category includes any intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment. The wastewater treated by these facilities is generated by industrial, commercial, and domestic sources.

The 2002 POTW NESHAP is subcategorized based on whether the POTW is providing treatment for wastewaters received from an industrial user as the means by which that industrial user complies with another NESHAP. The 2002 POTW NESHAP defined an “industrial POTW” as “a POTW that accepts a waste stream regulated by another NESHAP and provides treatment and controls as an agent for the industrial discharger. The industrial discharger complies with its NESHAP by using the treatment and controls located at the POTW. For example, an industry discharges its benzene-containing waste stream to the POTW for treatment to comply with 40 CFR part 61, subpart FF—National Emission Standards for Benzene Waste Operations. This definition does not include POTW treating waste streams not specifically regulated under another NESHAP.” An “industrial POTW” is subject to the 2002 POTW NESHAP regardless of the HAP emissions (i.e., the POTW does not have to be a major source). In contrast, a “non-industrial POTW” was defined in the 2002 POTW NESHAP as “a POTW that does not meet the definition of an industrial POTW as defined above.” A “non-industrial POTW” must be a major source to be subject to the 2002 POTW NESHAP. For more information, see the December 27, 2016, RTR proposal (81 FR 95357).

The amount and type of HAP emitted from a POTW is dependent on the composition of the wastewater streams discharged to a POTW by industrial users. The primary HAP emitted from the POTW that were identified as subject to the POTW NESHAP include acetaldehyde, acetonitrile, chloroform, ethylene glycol, formaldehyde, methanol, methylene chloride, tetratchloroethylene, toluene, and xylenes. The HAP present in the wastewater entering a POTW can biodegrade, adhere to sewage sludge, volatilize to the air, or pass through (remain in the wastewater discharge) to receiving waters. Emissions can occur at any point at the POTW, including collection systems and wastewater treatment units located at the POTW treatment plant.

The POTW NESHAP specifies requirements for the industial and non-industrial POTW subcategories. Under the 2002 POTW NESHAP, an existing “industrial POTW” must meet the requirements of the industrial user's NESHAP. A new or reconstructed “industrial POTW” must meet the requirements of the industrial user's NESHAP or the requirements for new or reconstructed non-industrial POTW, whichever is more stringent.

There are no control requirements in the 2002 POTW NESHAP for existing “non-industrial POTW.” However, new or reconstructed “non-industrial POTW” must equip each treatment unit up to, but not including, the secondary influent pumping station, with a cover. In addition, all covered units, except the primary clarifier, must route the air in the headspace above the surface of the wastewater to a control device that meets the requirements for closed-vent systems and control devices found in the NESHAP from Off-Site Waste and Recovery Operations (40 CFR part 63, subpart DD). As an alternative, a new or reconstructed “non-industrial POTW” can demonstrate that all units up to, but not including, the secondary influent pumping station emit a HAP fraction of 0.014 or less. The HAP fraction emitted is the fraction of HAP in the wastewater entering the POTW that is emitted to the atmosphere. For additional information, see the December 27, 2016, RTR proposal (81 FR 95357).

On December 27, 2016, the EPA published a proposed rule in the Federal Register for the POTW NESHAP, 40 CFR part 63, subpart VVV, that took into consideration the RTR analyses. In the proposed rule, we proposed that the risks are acceptable and the current standards provide an ample margin of safety to protect public health. Additionally, we did not identify any developments in practices, processes, and control technologies for the POTW source category as part of the technology review. During this rulemaking, we evaluated other revisions to the 2002 POTW NESHAP outside of the RTR. We proposed to revise the names and definitions of the industrial and non-industrial subcategories to be called Group 1 and Group 2 POTW. We also proposed to include requirements to limit emissions from collection systems and the POTW treatment plant; requirements for existing, new, or reconstructed Group 1 POTW to comply with both the requirements in the POTW NESHAP and those in the applicable NESHAP for which the POTW acts as a control agent; and HAP emission limits for existing Group 2 POTW. In addition, we proposed to clarify the applicability criteria; require initial notification for existing Group 1 and Group 2 POTW; revise regulatory provisions pertaining to emissions during periods of SSM; add requirements for electronic reporting; and make other miscellaneous edits and technical corrections.

This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the POTW source category. This action also finalizes other changes to the NESHAP, including revised names and definitions of the subcategories, clarified applicability criteria, revised regulatory provisions pertaining to emissions during periods or SSM, initial notification requirements for existing Group 1 and Group 2 POTW, requirements for new or reconstructed Group 1 POTW to comply with both the requirements in the POTW NESHAP and those in the applicable NESHAP for which the POTW acts as a control agent, requirements for electronic reporting, and other miscellaneous edits and technical corrections. As explained in section IV of this preamble, we are not taking final action at this time on several provisions that were proposed, including standards for pretreatment, the inclusion of collection systems in the major source determination, and the HAP fraction emission limit for existing Group 1 and Group 2 POTW.

We determined that risks resulting from emissions from the POTW source category are acceptable. Specifically, the maximum individual cancer risk (MIR) is 2-in-1 million based on allowable emissions and 1-in-1 million based on actual emissions, well below the presumptive limit of acceptability (100-in-1 million), and other health information indicates there is no appreciable risk of adverse chronic or acute non-cancer health effects due to HAP emissions from the source category. Additionally, emissions of 2-methylnaphthalene, the only HAP emitted from the POTW source category that is known to be persistent and bio-accumulative in the environment (PB-HAP), did not exceed the worst-case Tier I screening emission rate or any ecological benchmarks. Therefore, revisions to the standards are not necessary to reduce risk to an acceptable level or to prevent an adverse environmental effect. Further, considering risk and non-risk factors, we determined that the 2002 POTW NESHAP requirements provide an ample margin of safety to protect public health. Therefore, we are not finalizing revisions to the standards under CAA section 112(f)(2).

We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. Therefore, we are not finalizing revisions to the MACT standards under CAA section 112(d)(6).

Consistent with Sierra Club v. EPA, 552 F.3d 1019 (D.C. Cir. 2008), the EPA has established standards in this rule that apply at all times. We have revised Table 1 to Subpart VVV of Part 63 (the General Provisions applicability table) in several respects to eliminate the incorporation of those General Provisions that stated or were tied to the SSM exemption. These revisions to Table 1 are explained in detail in the proposed rule preamble at 81 FR 95780-95782. Further, in conjunction with the elimination of the incorporation of these General Provisions requirements, we have (1) added a general duty to minimize emissions in 40 CFR 63.1582(e) and 63.1586(e), see 81 FR at 95380 (col. 2-3); (2) incorporated performance testing requirements for control devices in 40 CFR 63.694, see 81 FR at 95781 (col. 1); (3) added language to Table 1 related to monitoring that is identical to 40 CFR 63.8(d)(3) (which is no longer incorporated) but with certain revisions to reflect the ending of the SSM plan requirement, see 81 FR at 95381 (col. 2); (4) made the recordkeeping requirements in 40 CFR 63.696(h) and 63.1589(d) applicable to periods that were previously covered by SSM-related provisions, see 81 FR 95381 (col. 2-3); and (5) amended the reporting requirements in 40 CFR 63.1590 which, in conjunction with the existing reporting requirements in 40 CFR 63.693 and 63.1590(a), will adequately provide for reporting that was previously governed by SSM-related provisions, see 81 FR at 95382.

The EPA is not revising the applicability of 40 CFR part 63, subpart VVV as proposed on December 27, 2016. Instead, the EPA is finalizing minor clarifying changes to the applicability criteria that are in the 2002 POTW NESHAP. The renaming of the subcategories (from “industrial” to “Group 1” and from “non-industrial” to “Group 2) and the definitions of Group 1 and Group 2 POTW are being finalized as proposed, and as discussed below. However, for clarification, the EPA has removed the statements regarding ownership and operation of POTW in regards to which POTW are required to develop and implement a pretreatment program as defined by 40 CFR 403.8. This change clarifies that any Group 1 POTW (regardless of HAP emissions) or Group 2 POTW that is a major source of HAP is subject to the POTW NESHAP if the POTW also meets the criteria for development and implementation of a pretreatment program, regardless of whether the POTW, state, or other entity implements the pretreatment program.

As proposed, the EPA is revising the names and definitions for the subcategories identified in the POTW NESHAP. The EPA is renaming an “industrial POTW treatment plant” as a “Group 1” POTW treatment plant and a “non-industrial POTW treatment plant” as a “Group 2” POTW treatment plant. The EPA expects that this clarification will address any confusion that could have been caused by the previous subcategory names “industrial POTW treatment plant” and “non-industrial treatment plant” because POTW in both subcategories treat wastewater from industrial users. The key difference between Group 1 and Group 2 is that a Group 1 POTW acts as an agent for an industrial user by accepting and controling the industrial user's waste stream regulated under another NESHAP. By contrast, a Group 2 POTW may treat the waste stream from an industrial user, but does not act as the industrial user's agent to comply with another NESHAP.

In the final rule (40 CFR 63.1586(a)), existing Group 1 and Group 2 POTW treatment plants must comply with the initial notification requirements in 40 CFR 63.1591(a) of subpart VVV. This notification requirement was not required for these existing sources in the 2002 POTW NESHAP, but was proposed in the December 27, 2016, proposal, and is consistent with notification requirements that were applicable to new or reconstructed Group 2 sources under the 2002 POTW NESHAP.

The EPA is finalizing, as proposed, the requirement that new Group 1 POTW comply with both the requirements of the other NESHAP for which they act as an agent of control for an industrial user and the requirements for new Group 2 POTW in this final rule. The requirements for new Group 2 POTW are unchanged from the 2002 POTW NESHAP and provide the option of complying with either (a) cover all primary treatment units and route emissions through a closed vent system to a control device or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units.

The EPA is finalizing electronic reporting requirements for new POTW consistent with the proposed rule. Specifically, new POTW must electroncally submit all annual reports and certain performance test reports. The EPA believes that the electronic submittal of these reports will increase the usefulness of data contained in those reports, is in keeping with current trends in data availability, will further assist in the protection of public health and the environment, and will ultimately result in less burden on the regulated community.

The EPA is finalizing the following technical corrections as proposed:

• Revising all references to “new or reconstructed POTW” to refer to “new POTW” because the definition of “new” includes reconstructed POTW.

• Combining text from 40 CFR 63.1581 and 63.1582 because the language was redundant and confusing. This includes revising 40 CFR 63.1581 to include all combined text and revising 40 CFR 63.1583(c) to include the text from the current 40 CR 63.1582(c).

• Revising 40 CFR 63.1586(b)(1) to require covers “designed and operated to prevent exposure of the wastewater to the atmosphere” instead of “designed and operated to minimize exposure of the wastewater to the atmosphere.” This clarification has also been made to the definition of “cover” in 40 CFR 63.1595.

• Revising 40 CFR 63.1587 to include compliance requirements that are currently found in 40 CFR 64.1584 and 63.1587, and deleting 40 CFR 63.1584.

• Clarifying the method for calculating the HAP fraction emitted and moving the detailed instructions for calculating the HAP fraction emitted from 40 CFR 63.1588(c)(4) to 40 CFR 63.1588(c)(3). The requirements remaining in 40 CFR 63.1588(c)(4) address monitoring for continuous compliance.

• Revising 40 CFR 63.1588(a)(3) to clarify that a cover defect must be repaired within 45 “calendar” days; currently the paragraph says “45 days.”

• Adding definitions of existing source/POTW and new source/POTW to 40 CFR 63.1595 to clarify the date that determines whether a POTW is existing or new.

• Renaming the title of 40 CFR 63.1588 to “How do Group 1 and Group 2 POTW treatment plants demonstrate compliance?” from “What inspections must I conduct?” The new title better reflects the contents of this section.

• Removing the details on how to calculate the HAP fraction emitted from the definition of HAP fraction emitted. The procedure for how to calculate the HAP fraction emitted is provided within the text of the rule. Having a summarized version of this procedure in the definition could cause confusion.

• Revising two references to dates to insert the actual dates. The phrase “six months after October 26, 1999” was replaced with “April 26, 2000”; and the phrase “60 days after October 26, 1999” was replaced with “December 27, 1999.” These changes do not result in a change in the date, but only clarify the specific dates being referenced.

• Clarifying that the reports required in 40 CFR 63.1589(b)(1) include the records associated with the HAP loading and not just the records associated with the HAP emissions determination.

• Removing the definition of “Reconstruction” in 40 CFR 63.1595 as “Reconstruction” is already defined in the General Provisions of 40 CFR 63.2.

The revisions to the MACT standards being promulgated in this action are effective on October 26, 2017.

The compliance date for existing Group 1 POTW is found in the applicable NESHAP for which the industrial user is subject to wastewater requirements. The compliance date for existing Group 2 POTW constructed or reconstructed on or before December 1, 1998, remains April 26, 2000. While we do not expect any additional existing Group 1 or Group 2 POTW beyond the 13 identified, we have chosen to include an additional compliance date of October 26, 2018 for existing Group 1 and Group 2 sources to submit their initial notification. We understand from public comments that POTW are evaluating their potential emissions and additional POTW may find they are subject to the rule. These POTW are only required to submit a notification that they are subject to the rule, and the additional time given for compliance of this notification submittal will provide time for completion of the necessary emission calculations. The 13 existing sources that are subject to the rule and were previously identified have already met this notification requirement and do not need to resubmit a notification. New sources constructed or reconstructed after December 27, 2016, must comply with all of the standards immediately upon the effective date of the standard, October 26, 2017, or upon startup, whichever is later. While we did not identify any new sources that are subject to the rule since the original rule was published in 1999, we are including a transition period until October 26, 2020 for any new sources constructed or reconstructed between December 1, 1998, and December 27, 2016, to comply with the revisions in this rule.

As we proposed, the EPA is finalizing the requirement for owners and operators of POTW to submit electronic copies of certain required performance test reports and annual reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public.

The EPA Web site that stores the submitted electronic data, WebFIRE, is easily accessible and provides a user-friendly interface. By making records, data, and reports addressed in this rulemaking readily available, the EPA, the regulated community, and the public will benefit when the EPA conducts its CAA-required technology reviews. As a result of having reports readily accessible, our ability to carry out comprehensive reviews will increase and be achieved within a shorter period of time.

We anticipate fewer or less substantial Information Collection Requests (ICRs) in conjunction with prospective CAA-required technology reviews may be needed, which results in a decrease in time spent by industry to respond to data collection requests. We also expect the ICRs to contain less extensive stack testing provisions, as we will already have stack test data electronically. Reduced testing requirements would be a cost savings to industry. The EPA should also be able to conduct these required reviews more quickly. While the regulated community may benefit from a reduced burden of ICRs, the general public benefits from the agency's ability to provide these required reviews more quickly, resulting in increased public health and environmental protection.

Air agencies, as well as the EPA, can benefit from more streamlined and automated review of the electronically submitted data. Standardizing report formats allows air agencies to review reports and data more quickly. Having reports and associated data in electronic format facilitates review through the use of software “search” options, as well as the downloading and analyzing of data in spreadsheet format. Additionally, air agencies and the EPA can access reports wherever and whenever they want or need, as long as they have access to the Internet. The ability to access and review reports electronically assists air agencies in determining compliance with applicable regulations more quickly and accurately, potentially allowing a faster response to violations, which could minimize harmful air emissions. This benefits both air agencies and the general public.

For a more thorough discussion of electronic reporting required by this rule, see the discussion in the preamble of the proposal. In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data will save industry, air agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories and air quality regulations and enhancing the public's access to this important information.

For each decision or amendment, this section provides a description of what we proposed and what we are finalizing, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. Comments not discussed in this preamble, comment summaries, and the EPA's responses can be found in the comment summary and response document available in the docket (Docket ID No. EPA-HQ-OAR-2016-0490).

Pursuant to CAA section 112(f), we conducted a residual risk review and presented the results of the review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the December 27, 2016, RTR proposal (81 FR 95372). The residual risk review for the POTW source category included assessment of cancer risk, chronic non-cancer risk, and acute non-cancer risk due to inhalation exposure, as well as multipathway exposure risk and environmental risk. The results of the risk assessment are presented briefly in this preamble and in more detail in the residual risk document, Residual Risk Assessment for Publicly Owned Treatment Works Source Category in Support of the October 2017 Risk and Technology Review Final Rule, 3 which is available in the docket for this rulemaking.

The results indicated that maximum inhalation cancer risk to the individual most exposed is 2-in-1 million based on allowable emissions and 1-in-1 million based on actual emissions, which is well below the presumptive limit of acceptability (i.e., 100-in-1 million). In addition, the maximum chronic noncancer target organ specific hazard index (TOSHI) due to inhalation exposures is less than 1. The evaluation of acute noncancer risk, which was conservative, showed a hazard quotient at or below 1 for all but one POTW. Based on the results of the screening analyses for human multipathway exposure to, and environmental impacts from, PB-HAP, we also concluded that the cancer risk to the individual most exposed through ingestion is below the level of concern and no ecological benchmarks are exceeded. The facility-wide cancer and noncancer risks were estimated based on the actual emissions from all sources at the identified POTW (both MACT and non-MACT sources). The results indicated the cancer risk to the individual most exposed is no greater than 10-in-1 million and the noncancer TOSHI is less than 1. Considering the above information, as well as other relevant non-health factors under the Benzene NESHAP analysis codified in CAA 112(f)(2)(B), we proposed that the risk is acceptable and the requirements in the 2002 POTW NESHAP provide an ample margin of safety to protect public health and prevent an adverse environmental effect.

The risk assessment conducted for the POTW proposal estimated cancer, chronic noncancer, and acute noncancer risk for six of the 13 facilities in the source category and is summarized and referenced above. We confirmed the existence of seven additional POTW subject to the rule that were identified through public comments. For these seven POTW, we conducted a facility-wide risk assessment of potential cancer and chronic noncancer health effects. The results of this assessment indicate that all seven POTW have a facility-wide noncancer TOSHI less than 1, four of the POTW have a facility-wide cancer risk estimated less than 1-in-1 million, and three of the POTW have a facility-wide cancer risk estimated at or above 10-in-1 million. The highest facility-wide MIR was 60-in-1 million driven by formaldehyde from internal combustion engines which are covered under the NESHAP for the Stationary Reciprocating Internal Combustion Engines source category. For this POTW with the highest facility-wide MIR, the facility-wide emissions of formaldehyde are 22 tpy while the source category emissions of formaldehyde are 0.0026 tpy, which indicates that almost 100 percent of the estimated cancer risk is from emissions sources that are not part of the POTW source category. This ratio of source category emissions relative to facility-wide emissions of formaldehyde is the same for the other two POTW with facility-wide cancer risk estimated at or above 10-in-1 million. Therefore, it is reasonable to conclude that all 13 POTW have estimated cancer risk close to or below 1-in-1 million from source category emissions and we retain our proposed determination that risk is acceptable. Further, as discussed in the December 27, 2016, RTR proposal (81 FR 95373), we retain our determination that, considering the costs, economic impacts and technological feasibility of additional standards to reduce risk further, the 2002 POTW NESHAP provides an ample margin of safety to protect public health and prevents an adverse environmental effect. Details of this risk assessment are described in the Residual Risk Assessment for the Publicly Owned Treatment Works Source Category in Support of the October 2017 Risk and Technology Review Final Rule found in the docket for this rulemaking.

Most of the commenters on the proposed risk review supported our risk acceptability and ample margin of safety determinations for the POTW NESHAP. Some commenters requested that we make changes to our residual risk review approach. However, we evaluated the comments and determined that no changes to our risk assessment methods or conclusions are warranted. A summary of these comments and responses are in the comment summary and response document, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2016-0490).

Since proposal, our risk assessment has been broadened to include additional POTW; however, the conclusions of our risk assessment and our determinations regarding risk acceptability, ample margin of safety, and adverse environmental effects have not changed. For the reasons explained in the proposed rule and discussed above, we determined that the risks from the POTW source category are acceptable, and that the current standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect.

As described in the December 27, 2016, RTR proposal (81 FR 95373), and as provided by CAA section 112(d)(6), our technology review focused on identifying developments in the practices, processes, and control technologies for the POTW source category. We concluded that there are two different control options that may be used at a POTW to reduce HAP emissions: pretreatment programs and add-on controls (i.e., covers or covers vented to a control device). While we proposed specific revisions to the standards, none of those revisions were the result of any identified developments in practices, processes, or control technologies beyond the programs and controls already in use at the time of the promulgation of the original 40 CFR part 63, subpart VVV rulemaking.

Comment: We received various comments related to the information evaluated for the proposal. Two commenters stated that there is no technical basis that requires the EPA to revise the standards since there have been no technology advances since 1998 that warrant a change in the original MACT analysis. Several commenters provided additional information on specific control technologies, including biofilters, caustic scrubbers, and carbon absorbers. One of these commenters stated that biofilters are not reliable control devices in the context of a POTW because they are designed for stable operating conditions. In contrast, another commenter provided information that biofilters might have the ability to reduce HAP in addition to hydrogen sulfide (H2S) and volatile organic compounds (VOC). Additional comments on the technology review can be found in section 3 of the response to comments document in the docket for this rule (EPA-HQ-OAR-2016-0490).

Response: The EPA conducted a literature review and evaluated available studies and publications on the use of add-on controls and process modifications that are used to reduce emissions from POTW wastewater collection and treatment operations. As noted by the commenters, these technologies include biotrickling filters, the use of covers and ducting of the headspace vent stream to caustic scrubbers and carbon adsorbers, and biofiltration/biofilters. These types of technologies have been used historically at POTW where they provide a relatively high degree of H2S control for the purpose of preventing odor. As documented in the technology review memorandum and reflected in the comments received on the proposed rule, the efficacy of these technologies to reduce HAP emissions is highly variable and dependent on site-specific operating parameters. Our conclusion is that the experience with biofilters for controlling organics at POTW is at the experimental and pilot scale and that this technology has not been demonstrated to be commercially available and effective for controlling the range of HAP emitted by POTW. Thus, we do not consider this technology to be a development in practices, processes, or control technologies for purposes of this technology review. Scrubbers are generally not used to control emissions of organic constituents, and while carbon adsorbers may be effective at HAP control in certain applications, as used in POTW, they are generally not designed for HAP control. Nevertheless, 40 CFR part 63, subpart VVV allows flexibility for POTW to develop site-specific control strategies to meet any applicable requirements, and such strategies could include the use of biologic filters and carbon adsorbers that can achieve the required control levels.

As stated in section III.B of this preamble, we did not identify any developments in practices, processes, or control technology with respect to programs and controls already in use when the 2002 POTW NESHAP was promulgated that warrant revisions to the standards as part of the technology review of the POTW NESHAP.

The 2002 POTW NESHAP established three criteria (40 CFR 63.1580(a)(1), (2), and (3)) for determining what POTW are subject to the rule. Specifically, the following criteria must all be true: (1) You own or operate a POTW that includes a POTW treatment plant; (2) the POTW is a major source of HAP emissions, or an industrial POTW regardless of the HAP emissions; and (3) the POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8. The EPA proposed to revise the applicability criteria in order to clarify the original intent of the rule. Specifically, we proposed to revise the first and second criteria in 40 CFR 63.1580(a)(1) and (2) to state that your POTW is subject to the POTW NESHAP if “(1) You own or operate a POTW that is a major source of HAP emissions; or (2) you own or operate a Group 1 POTW regardless of whether or not it is a major source of HAP.” As stated in the proposal, we proposed this revision because we found several instances where a POTW might not realize they are subject to the standards, or where the applicability criteria could be misinterpreted to exclude facilities that are covered by the rule. See 81 FR 95377.

The third applicability criterion in the 2002 POTW NESHAP states that “(3) Your POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8 (for a POTW owned or operated by a municipality, state, or intermunicipal or interstate agency), or your POTW would meet the general criteria for development and implementation of a pretreatment program (for a POTW owned or operated by a department, agency, or instrumentality of the Federal government).” We proposed revising the third criterion in 40 CFR 63.1580(a)(3) to state “You are subject to this subpart if your POTW has a design capacity to treat at least 5 million gallons of wastewater per day (MGD) and treats wastewater from an industrial user, and either paragraph (a)(1) or (a)(2) is true.” This proposed revision removed the requirement that a POTW must already have a pretreatment program in place in order to be subject to the rule. The proposed revisions were intended to clarify the intent of the rule, which was to limit applicability to POTW that treat at least 5 MGD and wastewater from industrial users.

Comment: We received numerous comments that raised specific concerns related to these proposed changes. First, commenters disagreed that the proposed changes were necessary and stated that the proposed changes created confusion and changed the scope of affected sources. One commenter stated that the applicability of 40 CFR part 63, subpart VVV has been well-defined for over 17 years, and if sources are confused, the EPA has methods to correct any confusion without making rule changes.

Several commenters specifically objected to the proposed change that removed pretreatment from the third applicability criterion and made it a requirement of the rule. These commenters stated that removing pretreatment as an applicability criterion and making it a requirement changes the source category that the EPA intended to control. One state commented that this proposed change would cause an additional 12 POTW in their state to become subject to the rule. The commenter explained that because the state (not the POTW) implements the National Pollutant Discharge Elimination System (NPDES) pretreatment program, the original rule does not apply to any POTW in that state.

Response: As stated in the proposal, the EPA did not intend to expand the applicability criteria from the 2002 POTW NESHAP. After consideration of the comments received, we agree that implementing the proposed changes to rule applicability could have caused confusion among the regulated community without a demonstrable environmental benefit. Therefore, at this time, we are not making any substantive change to the 2002 POTW NESHAP third applicability criterion and are not adopting the proposed applicability criterion of 5 MGD. However, it is important to note that the requirements in the National Pretreatment Program do establish a 5 MGD threshold for applicability.

In response to the apparent potential for misinterpretation of the regulatory text that is reflected in the state's comment, we are making one minor change to clarify our interpretation and the intent of 40 CFR 63.1580(a)(3). In developing the 2002 POTW NESHAP, we wrote the rule to apply to POTW that receive a significant amount of HAP-containing waste from industrial or commercial facilities. In developing the rule language, we sought to define such POTW by using a regulatory criterion that was already established and well understood in the industry. We selected the criterion that the POTW be subject to a pretreatment program under the NPDES program because this criterion would encompass industrial and commercial wastes with HAP that pass through the POTW untreated and that could present a safety or health concern to POTW workers. In adopting this criterion, we did not limit applicability based on the entity that administers the program. In other words, the criterion encompasses every POTW that receives a waste stream that is subject to pretreatment standards, regardless of whether the standards are prescribed by the POTW itself or by a state or federal regulatory body. Thus, to make sure that the regulatory text is properly read, we have revised 40 CFR 63.1581(a)(3) to make clear that a POTW is subject to this rule if either (1) the POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8, or (2) the POTW meets the general criteria for development and implementation of a pretreatment program, even if does not develop and implement the pretreatment program itself. Specifically, we have removed the parenthetical text in 40 CFR 63.1580(a)(3) that limited the first part of the third criterion to POTW owned or operated by a municipality, state, or intermunicipal or interstate agency and limited the second part of the third criterion to POTW owned or operated by a department, agency, or instrumentality of the federal government.

In the 2016 proposal, we stated that HAP emissions from collection systems should be included when determining whether the POTW is a major source, and therefore, subject to the rule. Specifically, we stated that the 2002 applicability criteria in 40 CFR 63.1580(a)(2) provided that emissions from the entire POTW source category must be considered when determining whether the POTW is a major source of HAP emissions, and not just the emissions from the POTW treatment plant (i.e., the portion of the POTW designed to provide treatment of municipal sewage or industrial waste).

Comment: Several commenters opposed including emissions from collection systems in the determination of whether a POTW is a major source. The commenters stated that collection systems/sewers may include hundreds or thousands of miles of sewers and other equipment, are not always under the jurisdiction of the POTW, and are typically owned by another entity.

We also received comments that stated the inclusion of emissions from collection systems for major source determination is inconsistent with the federal definition of a major source. One commenter stated that expansion of the major source definition to include collection sewers as part of the affected source is not authorized under section 112 of the CAA. The commenter also stated that the equipment that collect and convey wastewater to a POTW treatment plant do not reasonably constitute a “building, structure, facility, or installation” as specified in the definition of a stationary source in section 112(a)(3) of the CAA, are clearly not within a contiguous area under common control, and should not be considered a single source. Commenters noted that the determination of a major source of HAP emissions should be limited to emission sources within the fence line of each treatment plant, which would be consistent with the fact that the emission fraction requirement of the proposed POTW NESHAP is limited to emissions within the treatment plant. Further, one commenter contended that excluding collection system emissions in POTW major source determinations is also supported by Alabama Power Co. v. Costle and EPA's response to that decision.

Commenters also noted that the emission data reviewed by the EPA in developing the proposed rule represented the HAP emissions from the POTW treatment plant only. One commenter noted that the risk assessment did not include emissions from collection systems. Several commenters disagreed with the EPA's statement in the preamble to the proposed rule that collection systems may have significant HAP emissions. Some commenters suggested that emissions from collection systems are insignificant and in some cases collection systems are operated under a vacuum to control odors. However, none of the commenters provided data to demonstrate the level of HAP emissions from collection systems.

Response: Considering these comments, the EPA is not taking final action at this time on any changes to the emission sources that must be considered when determining if a POTW is a major source of HAP emissions. Specifically, the EPA is not taking action on whether emissions from collection systems should be included in the total HAP emissions from a POTW. The determination of source boundaries is a site-specific and often a complex determination. Facilities work with their permitting authority to consider factors such as whether activities and equipment are in a contiguous area and whether they are under common control. In contemplating the comments, the EPA has decided that we do not have enough information on individual POTW, including information on the jurisdiction of the control of collection system equipment or information on whether this equipment should be considered contiguous with the POTW treatment plant. Also, data on HAP emissions from collection systems are not well understood, and we are not aware of accepted methods for measuring or calculating emissions from collection systems at this time. In addition, we understand that these source boundary determinations have already been made for the approximately 16,000 POTW through Title V applicability assessment. For these reasons, we are not taking final action at this time to change these determinations. We may take action in the future if we obtain additional information on source boundary issues (i.e., common control, contiguous area), HAP emissions, and other information related to the issues described above.

With respect to new sources, we expect new sources to consult their permitting authorities on these matters as they plan for new construction. The EPA considers these determinations on source boundaries to be appropriately under the jurisdiction of the permitting authority. Accordingly, to avoid regulatory disruption, this final rule takes no action to change the definition of POTW. The definition of POTW remains the same as originally promulgated and continues to include “. . . any intercepting sewers, outfall sewers, sewage collection systems, pumping, power and other equipment.” Likewise, we are not taking final action at this time to revise the originally promulgated definition of the affected source. The definition of affected source continues to mean the “group of all equipment that comprise the POTW treatment plant.”

As stated in section IV.C of this preamble, the EPA proposed removing pretreatment from the applicability criteria and making it a control requirement for new and existing sources. We proposed adding pretreatment requirements in the rule because pretreatment would reduce HAP emissions from the entire source category (i.e., collection systems and the treatment plant) by limiting the quantity of HAP in the wastewater before it is discharged to the collection system. The intent of this requirement was to reduce the pollutant loading into the POTW in order to reduce emissions throughout all stages of treatment.

Comment: Several commenters objected to the EPA requiring a pretreatment program for HAP emissions. Commenters disagreed with the EPA's contention that a pretreatment program will reduce emissions of HAP by reducing the presence of toxic gases. Specifically, commenters noted that a “pretreatment program under CAA Section 112 is not the same as a pretreatment program under the Clean Water Act (CWA)”, as 40 CFR 403 authorizes POTW to set pretreatment requirements for air contaminants for worker and plant safety, and to prevent interference and pass through. One commenter contended that the proposed rule expands the CAA regulatory framework into the CWA National Pretreatment Program without a legal basis.

Additionally, several commenters opposed requiring POTW to develop local limits and expressed concerns about the way in which local limits should be determined. Instead, commenters suggested that the EPA establish wastewater concentration limits for HAP to identify pollutants that may need local limits. One commenter stated that the EPA should either “regulate industrial users directly for HAP or provide technically-based wastewater concentrations for HAP that POTW could use for screening (where analytical methods exist under 40 CFR part 136)” to determine the need for establishing local limits.

Commenters also expressed concerns about the costs related to requiring pretreatment programs wherein POTW evaluate and set local limits for volatile organic HAP. The commenters stated that developing local limits to identify pollutants of concern, as well as identify potential pretreatment controls, would require significant time and that the significant costs these requirements would impose on POTW have not been quantified or justified. In contrast, one commenter stated that categorical limits set by the EPA pursuant to the CWA for certain industries could merit consideration, but additional analysis is required.

Response: In response to these comments, we are not taking final action at this time to require pretreatment as a control requirement for the revised NESHAP. As explained in section IV.C of this preamble, we are not changing the applicability criteria for 40 CFR part 63, subpart VVV. The existence of a pretreatment program under the CWA will continue to be one of the three rule applicability criteria.

The EPA Office of Water is responsible for administering the pretreatment program and updates the requirements of the pretreatment program based on the best available technology and taking into account cost effectiveness. As the pretreatment requirements are modified through future updates, additional HAP reductions may occur. Because all of the POTW that are subject to the rule already have pretreatment programs, specifically requiring pretreatment under the NESHAP would not reduce HAP emissions further, but could cause confusion and increase compliance costs. Thus, we are not finalizing any revisions at this time to impose additional pretreatment requirements prior to discharging a wastewater stream to a receiving POTW. Pretreatment will continue to be handled under the authority of the CWA. By retaining the existing regulatory structure of the NESHAP, the EPA avoids redundancy and confusion in having pretreatment requirements included in both air and water permits.

In the 2016 proposal, we proposed that existing Group 1 and Group 2 POTW operate with an annual rolling average HAP fraction emitted from primary treatment units of 0.08 or less. As stated in the proposal, we believed that the existing POTW we knew about could meet this standard without the need for additional control.

Comment: We received numerous comments that opposed the proposed HAP fraction emission limit, and we received additional data to suggest the proposed 0.08 HAP fraction limit was not appropriate and did not accurately account for variability in HAP loading at individual POTW.

Several commenters objected that merely doubling the single largest HAP fractions from the two available sources was not a scientifically or statistically valid method for setting the emission limit and stated that the EPA had provided no support for using the 2x factor to account for variability of emissions. For example, the commenters collectively pointed out that the two POTW on which the proposed standard was based were operating at half capacity, that the available data represent merely a snapshot in time, that other potentially regulated POTW might emit higher HAP fractions, and that the specific combination of HAP measured by the two POTW might not be representative of HAP emitted by other POTW. One commenter suggested that due to the uncertainty associated with such a small data set, the EPA should use a larger multiplier for setting a standard.

Additionally, commenters stated that the EPA had underestimated the cost of achieving compliance with the 0.08 HAP fraction emitted standard. Specifically, commenters stated that in order to comply, they would incur capital and operating costs, in addition to the recordkeeping and reporting costs that the EPA accounted for in the proposal. One commenter stated that they would potentially need to install covers and controls in order to meet the HAP fraction emitted limit, which would be an expense of $20 to $30 million with negligible emission reductions. Two commenters argued that the compliance cost for the proposed standard was not warranted given the low public health risk that the EPA estimated. Commenters further recommended that the EPA gather more complete data from the universe of affected sources, conduct statistical analysis of those data, and determine a suitable standard based on an acceptable level of risk and variability of the data.

Response: After reviewing public comments and re-evaluating our analysis, we are not taking final action to adopt the 0.08 HAP fraction emitted limit for existing Group 1 and Group 2 POTW at this time. The proposed HAP fraction emitted limit did not reflect the performance or application of a specific control technology. At proposal, we envisioned this limit as an enforceable numerical limit that would ensure performance consistent with that being achieved by existing sources. However, after consideration of the information provided in public comment, we now recognize that we do not have the comprehensive data on existing POTW that are necessary to conduct a sufficiently robust analysis. The HAP fraction emitted by different POTW is influenced by individual HAP vapor pressures, pollutant loadings, HAP concentrations, sample measurement and analytical techniques, and ambient conditions, which differ from POTW to POTW. Testing of influent loadings is limited by applicable test methods, by compounds identified by dischargers, and by the HAP for which air permits require sampling. Without sufficient data, we cannot determine an appropriate HAP fraction emitted limit, considering the variability in operating conditions that is likely to occur across even well-operated POTW. Moreover, at this time, we are unable to analyze the control costs for all affected sources or the emissions reductions that might be achieved. For all of these reasons, we are not taking final action on the proposed 0.08 HAP fraction at this time, but we may in the future consider promulgating a limit if we obtain further information on the issues discussed above.

In addition to proposing a HAP fraction for existing Group 1 POTW, we also proposed other changes to the requirements for Group 1 POTW.

The 2002 POTW NESHAP required existing Group 1 POTW to comply only with the requirements of the other NESHAP for which they are acting as an agent of control for the industrial user. We proposed that existing Group 1 POTW must meet both the requirements of the other NESHAP for which they are acting as an agent of control for an industrial user and the proposed requirements for existing Group 2 POTW in the POTW NESHAP (i.e., the proposed 0.08 HAP fraction emitted limit discussed in IV.F, above).

The 2002 POTW NESHAP required new and reconstructed (which we are now referring to as “new”) Group 1 POTW to comply with the more stringent of the following: (1) The requirements of the other NESHAP for which they are acting as an agent of control for the industrial user; or (2) the requirements applicable to new Group 2 POTW, which allowed the POTW to choose to meet either a requirement to (a) cover all equipment and route emissions through a closed vent system to a control device; or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units. We proposed that new Group 1 POTW comply with the other NESHAP for which they are acting as an agent of control for an industrial user and the requirements for new Group 2 POTW in the 2002 POTW NESHAP. (Note that we did not propose, and are not finalizing, any revisions to the requirements for new Group 2 POTW.)

Comment: We received comments from one of the existing Group 1 POTW that expressed concern that by imposing the HAP fraction emitted limit on the existing Group 1 POTW with no alternative compliance option, the EPA had ignored existing POTW with covers and controls already in place. The commenter stated that new Group 1 POTW have the option of either installing covers or complying with the HAP fraction limit. However, the EPA did not provide that flexibility to existing Group 1 POTW, thereby imposing an additional HAP fraction limit without a cover option and more onerous recordkeeping and reporting requirements. The commenter stated that the EPA should provide existing Group 1 POTW that already use covers the option of adding controls in lieu of complying with a HAP fraction limit.

Response: The EPA is not taking final action on the proposed changes for existing Group 1 sources at this time. As explained in section IV.F of this preamble, we are not setting a HAP fraction limit for existing Group 1 or Group 2 POTW at this time; therefore, no additional requirements are being added for existing Group 1 POTW in the POTW NESHAP. Thus, as required by the 2002 POTW NESHAP, an existing Group 1 POTW must comply with the control requirements as specified in the appropriate NESHAP for the industrial user(s).

We did not receive any comment on our proposed revision to the requirements for new Group 1 POTW. We proposed, and are finalizing, that new Group 1 POTW must (1) meet the requirements of the other NESHAP for which they act as an agent of control for an industrial user and (2) either (a) cover all equipment and route emissions through a closed vent system to a control device or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units. See 81 FR 95375 for our rationale for this change. Because we received no adverse comment on our proposal, we are finalizing these requirements as proposed.

The EPA estimates, based on the responses to the 2015 ICR, the 2011 and 2014 National Emissions Inventory (NEI), and public comments received, that there are 13 POTW that are engaged in treatment of industrial wastewater and are currently subject to the POTW NESHAP. Two of these facilities are considered Group 1 POTW, while the remaining eleven are considered Group 2 POTW. All 13 currently subject to the POTW NESHAP have already met the notification requirements for existing Group 1 and Group 2 POTW. The EPA is not currently aware of any planned new Group 1 or Group 2 POTW that will be constructed or any existing Group 1 or Group 2 POTW that will be reconstructed.

The EPA estimates that annual organic HAP emissions from the 13 POTW subject to the rule are approximately 35 tpy. We expect no emissions of inorganic HAP from this category. The EPA does not anticipate any additional emission reductions from the final changes to the rule, and there are no anticipated new or reconstructed facilities.

The 13 entities subject to this proposal will incur only minimal costs related to familiarizing themselves with this rule—estimated to be a one-time total cost of $790 for all 13 entities. For further information on the requirements of this rule, see section IV of this preamble. For further information on the costs associated with the requirements of this rule, see the document titled Economic Impact Analysis for the National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Risk and Technology Review, in the docket. The memorandum titled Technology Review Memorandum for the Publicly Owned Treatment Works Source Category, in the docket for this action, presents costs estimated associated with the regulatory options that were not selected for inclusion in this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

The economic impact analysis is designed to inform decision makers about the potential economic consequences of a regulatory action. For this rule, the EPA estimated the annual cost of recordkeeping and reporting as a percentage of reported sewage fees received by the affected POTW. For the revisions promulgated in this final rule, costs are expected to be less than 0.001 percent of collected sewage fees, based on publicly available financial reports from the fiscal year ending in 2015 for the affected entities.

In addition, the EPA performed a screening analysis for impacts on small businesses by comparing estimated population served by the affected entities to the population limit set forth by the U.S. Small Business Administration. The screening analysis found that the population served for all affected entities is greater than the limit qualifying a public entity as a small business.

More information and details of the EPA's analysis of the economic impacts, including the conclusions stated above, are provided in the technical document, Final Economic Impact Analysis for the Publicly Owned Treatment Works National Emissions Standards for Hazardous Air Pollutants Risk and Technology Review, which is available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

We do not anticipate any significant reductions in HAP emissions as a result of these final amendments. However, we think that the amendments will help to enhance the clarity of the rule, which can improve compliance and minimize emissions.

We examined the potential for any environmental justice concerns that might be associated with this source category by performing a demographic analysis of the population close to the six POTW that were modeled for source category risk.4 In this analysis, we evaluated the distribution of HAP-related cancer and non-cancer risks from the POTW source category across different social, demographic, and economic groups within the populations living near facilities identified as having the highest risks. The methodology and the results of the demographic analyses are included in a technical report, Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near POTW Facilities, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2016-0490). The results for various demographic groups are based on the estimated risks from actual emissions levels for the population living within 50 kilometers (km) of the facilities.

The results of the POTW source category demographic analysis indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1. Therefore, we conclude that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. However, this final rule may provide additional benefits to these demographic groups by improving the compliance and implementation of the NESHAP. The demographics of the population living within 50 km of POTW can be found in Table 2 of the document titled Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Publicly Owned Treatment Works, available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The results of the POTW source category demographic analysis indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1. Therefore, the analysis shows that actual emissions from the POTW source category are not expected to have an adverse human health effect on children.

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

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

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The ICR document that the EPA prepared has been assigned EPA ICR number 1891.08. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

The information to be collected includes the initial notification that the POTW is subject to the rule. However, as stated in this preamble, the 13 sources that we already know about have already met this initial notification requirement and are not required to submit an additional notification. The information will be used to identify sources subject to the standards.

Respondents/affected entities: The respondents to the recordkeeping and reporting requirements are owners and operators of POTW. The NAICS code for the respondents affected by the standard is 221320 (Sewage Treatment Facilities), which corresponds to the United States Standard Industrial Classification code 4952 (Sewerage Systems).

Respondent's obligation to respond: Respondents are obligated to respond in accordance with the notification requirements under 40 CFR 63.1591(a).

Estimated number of respondents: Zero.

Frequency of response: One response.

Total estimated burden: 0 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $0 (per year), includes $0 annualized capital or operation and maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. There are no small entities affected in this regulated industry. See the technical document, Final Economic Impact Analysis for the National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Risk and Technology Review, which is available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490) for more detail.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

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

This action does not have tribal implications as specified in Executive Order 13175. As discussed in section II.B.1 of this preamble, we have identified only 13 POTW that are subject to this final rule and none of those POTW are owned or operated by tribal governments. Thus, Executive Order 13175 does not apply to this action.

The action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III.A and B and sections IV.A and B of this preamble and the Residual Risk Report memorandum contained in the docket for this rulemaking.

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

This rulemaking does not involve technical standards.

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

The documentation for this decision is contained in section III.A.6 of this preamble and in the corresponding technical report, Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Publicly Owned Treatment Works, available in the docket for this action. The proximity results indicate, for eight of the 11 demographic categories, that the population percentages within 5 km and 50 km of source category emissions are greater than the corresponding national percentage for those same demographics. However, the results of the risk analysis presented in section III.A.6 of this preamble and in the corresponding technical report indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1.

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

For the reasons stated in the preamble, the Environmental Protection Agency amends part 63 of title 40, chapter I, of the Code of Federal Regulations as follows:

The information in this section is organized as follows:

The EPA is finalizing:

(1) The decision to grant ExxonMobil's Beaumont Refinery's petition to have its surface impoundment basin solids excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and

(2) to use the Delisting Risk Assessment Software to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency used this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.

After evaluating the petition, EPA proposed rule, on May 31, 2017, to exclude the ExxonMobil Beaumont Refinery waste from the lists of hazardous wastes under §§ 261.31 and 261.32. The comments received on this rulemaking will be addressed as part of this decision.

ExxonMobil's petition requests an exclusion from the F037 and F038 waste listings pursuant to 40 CFR 260.20 and 260.22. ExxonMobil does not believe that the petitioned waste meets the criteria for which EPA listed it. ExxonMobil also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter, all sectional references are to 40 CFR unless otherwise indicated). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from ExxonMobil is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Beaumont, Texas facility.

This exclusion applies to the waste described in the petition only if the requirements described in Table 1 of part 261, Appendix IX, and the conditions contained herein are satisfied. The one-time exclusion applies to 400,000 cubic yards of surface impoundment basin solids.

Storage containers with SIB solids will be transported to an authorized solid waste landfill (e.g. RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.) for disposal.

This rule is effective October 26, 2017. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.

Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.

EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Beaumont Refinery transports the petitioned waste to or manages the waste in any State with delisting authorization, Beaumont Refinery must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude from the list of hazardous wastes, wastes the generator does not consider hazardous under RCRA.

Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of Parts 260 through 266, 268 and 273 of Title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists.

Petitioners must provide sufficient information to EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

In August 2016, ExxonMobil petitioned EPA to exclude from the lists of hazardous wastes contained in §§ 261.31 and 261.32, SIB solids (F037, F038) generated from its facility located in Beaumont, Texas. The waste falls under the classification of listed waste pursuant to §§ 261.31 and 261.32. Specifically, in its petition, ExxonMobil requested that EPA grant a one-time exclusion for 400,000 cubic yards of SIB solids.

The 40 CFR part 261 Appendix VII hazardous constituents which are the basis for listing can be found in Table 1.

To support its petition, ExxonMobil submitted:

(1) Historical information on waste generation and management practices; and

(2) analytical results from thirty-nine samples for total and TCLP concentrations of compounds of concern (COC)s;

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 1,288 metric tons (mt), 5,310 mt, and 16,472 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 48460; October 18, 2017). The 2017 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 6,018 mt, 11,286 mt and 11,434 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 48460; October 18, 2017).

The Yukon Delta Fisheries Development Association has requested that NMFS exchange 60 mt of flathead sole CDQ reserves and 145 mt of rock sole CDQ reserves for 205 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 60 mt of flathead sole CDQ reserves and 145 mt of rock sole CDQ reserves for 205 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 48460; October 18, 2017) are further revised as follows: